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Hutcheon_DcroppedThis week, the Supreme Court hears the appeal in Hotak v London Borough of Southwark, which is joined with the appeals in Johnson v Solihull and Kanu v Southwark.

Mr Hotak’s appeal challenges the respondent council’s decision that he was not in “priority need” for the purposes of the Housing Act 1996, s 189(1). He relies on s 189(1)(c). That provision states that those in priority need include “a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason”.

The critical issue before the Supreme Court is whether the respondent could take account of the support provided to Mr Hotak by his brother in deciding whether Mr Hotak was “vulnerable” under s 189(1)(c).

Background

Mr Hotak suffers from learning disabilities and relies on his brother for daily personal support. This support includes prompts to maintain personal hygiene, to change his clothes, to develop routines and to organise medical appointments.

In 2011, the respondent rejected Mr Hotak’s application for housing assistance. It found that he was not vulnerable under s 189(1)(c) because his brother cared for him and would continue to do so even if himself faced with street homelessness. On this basis, the respondent owed no duty to secure accommodation under s 193 of the Act.

In making its decision, the respondent applied the definition of “vulnerability” set out by the Court of Appeal in R v Camden LBC, ex p Pereira [1998] 31 HLR 317. This test asks if the individual when street homeless would be less able to fend for him or herself than an ordinary homeless person so that injury or detriment will result which would not befall the ordinary homeless person.

Mr Hotak unsuccessfully appealed this determination to the County Court and then to the Court of Appeal.

The Court of Appeal’s decision

The Court of Appeal’s sole concern was whether it was permissible to take third party support into account.

Lord Justice Pitchford (with whom Richards and Moore-Bick LJJ agreed) acknowledged that but for his brother’s support Mr Hotak would probably be treated as vulnerable under s 189 [4].

In concluding that third party support could be taken into account, the Court found that the statutory language was decisive [39]. On the terms of s 189(1)(c), the presence of the qualifying condition (e.g. mental illness) was not sufficient to demonstrate priority need. Instead, there also had to be a relationship of “cause and effect” between the qualifying condition and vulnerability as defined in Pereira. By contrast, other categories of persons (such as pregnant women) were deemed to be in priority need solely by virtue of the qualifying condition (e.g. pregnancy).

In addition (and like HHJ Blunsdon in the County Court), the Court of Appeal could not accept that one feature of the applicant’s situation (i.e. third party support) should be excluded from the determination of vulnerability, which was intensively fact sensitive and required account to be taken of all relevant circumstances [39]. The Court briefly noted that the government’s 2006 Homelessness Code of Guidance repeatedly refers to the need to consider all the circumstances when assessing vulnerability [38].

The Court also placed some reliance on its own previous decision in Osmani v Camden LBC [2004] EWCA Civ 1706. Though Mr Osmani’s appeal related to whether he was vulnerable under s 189(1)(c), the Court of Appeal did not need to make an explicit finding about the relevance of third party support. Yet in Pitchford LJ’s view, Auld LJ and the parties in Osmani had thought it “axiomatic” that the support provided to Mr Osmani by his wife was relevant to the question of vulnerability [37].

Pitchford LJ was keen to distinguish the question of the weight to be given to evidence of third party support. Reviewing officers have to assess whether the third party support available to a given applicant would still be available once she was homeless and if so, whether she would nevertheless be vulnerable [42].

The joined appeals

The Court of Appeal’s judgment in Johnson, handed down soon after the judgment in Hotak, stated (without referring to Hotak) that it was “now clearly established” that the local authority could take account of “assistance” available to the individual: at [7]. Mr Johnson’s appeal does not itself raise the question of third party support.

The Court of Appeal in Kanu applied Hotak. It rejected the argument, relying on Pitchford LJ’s dicta at [42] in Hotak, that the council’s reviewing officer had not fairly assessed the risk that the support available to Mr Kanu would not stop him being vulnerable once he was homeless (at [38]–[42]). The proper approach to this assessment will therefore also be at issue in the Supreme Court.

The appeal in the Supreme Court

It is to be hoped that the Supreme Court will engage with two particular submissions made on behalf of Mr Hotak to which the Court of Appeal did not directly respond. These submissions (described at [21] in the Court of Appeal’s judgment) relate to (i) Parliament’s apparent intention to support those providing help to vulnerable individuals and (ii) the possibility that those who provide such help will simply withdraw it if the Court of Appeal’s conclusion is upheld.

The appeal raises the more broadly important question of the extent to which public authorities can avoid their obligations because of the existence of voluntary support from other sources.

Darryl commenced traineeship at Matrix in October 2014.