Hotak & Ors v London Borough of Southwark & Anor [2015] UKSC 30

Three homeless applicants challenged local authorities' decisions that they were not 'vulnerable' under section 189(1)(c) of the Housing Act 1996. The Supreme Court clarified the correct comparator, the relevance of third-party support, and the public sector equality duty's application.

Facts

Three conjoined appeals concerned the assessment of ‘vulnerability’ under section 189(1)(c) of the Housing Act 1996, which determines whether a homeless person has ‘priority need’ for accommodation.

Hotak

Sifatullah Hotak, an Afghan refugee with significant learning difficulties (IQ 47), depression, and post-traumatic stress disorder, relied on his brother Ezatullah for daily living tasks. Southwark accepted he was homeless but found him not vulnerable because his brother could care for him on the streets.

Kanu

Patrick Kanu suffered physical ailments (hepatitis B, hypertension, haemorrhoids) and psychotic symptoms with suicidal ideation. His wife and son assisted him. Southwark found he was not in priority need because his family could support him.

Johnson

Craig Johnson, a persistent offender with heroin addiction, back/knee pain, asthma, and claimed depression, applied to Solihull. The reviewing officer rejected vulnerability, comparing him with an ‘ordinary homeless person’ and relying partly on statistical evidence.

Issues

The Court identified three principal issues:

1. Whether vulnerability under section 189(1)(c) involves a comparative exercise and, if so, by reference to which comparator group.
2. Whether support from a family member or household member could be taken into account when assessing vulnerability.
3. What effect, if any, the public sector equality duty under section 149 of the Equality Act 2010 has on a vulnerability assessment for applicants with disabilities.

Arguments

The appellants argued that the Court of Appeal authorities (notably Ex p Pereira and Ex p Bowers) had been misapplied; that the comparator should not be the ‘ordinary homeless person’, particularly viewed locally; and that third-party support, especially from family, should be disregarded. Ms Mountfield QC (Kanu) argued the equality duty required closer scrutiny and that section 15 of the 2010 Act rendered reliance on family support unlawful discrimination.

The respondent authorities defended their reviewing officers’ approaches, relying on established Court of Appeal authority, and contended that the equality duty added nothing to the section 189 analysis. Mr Rutledge QC argued Parliament had impliedly approved Pereira.

Judgment

Comparator

Lord Neuberger (with Lord Clarke, Lord Wilson and Lord Hughes) held that ‘vulnerable’ in section 189(1)(c) is inherently comparative and means ‘significantly more vulnerable than ordinarily vulnerable’ as a result of being rendered homeless. The correct comparator is an ordinary person if rendered homeless, not an ordinary actually homeless person, and not by reference to the local authority’s experience of homeless persons. Lady Hale agreed on this point.

Third-party support

The majority held that support and assistance available to an applicant when homeless, including from family members, may be taken into account. Vulnerability is a contextual and practical assessment. However, authorities must be satisfied that such support will be provided on a consistent and predictable basis, and even substantial support does not necessarily mean the applicant is not vulnerable.

Lady Hale dissented on this point, considering that support from household members should not be taken into account, as it would create a perverse incentive and was inconsistent with the statutory scheme, which clearly contemplates the carer and the vulnerable person both qualifying as in priority need.

Equality duty

The Court held that the public sector equality duty under section 149 of the 2010 Act applies to decisions under Part VII and is complementary to the statutory duty. Reviewing officers must focus sharply on whether the applicant has a disability, its extent, its likely effect when homeless, and whether the applicant is consequently vulnerable. The duty must be exercised

‘in substance, with rigour, and with an open mind’

. However, section 15 of the 2010 Act did not render reliance on family support unlawful, as any such treatment was a proportionate means of achieving a legitimate aim.

Other points

Lord Neuberger clarified that an authority’s resources are irrelevant to whether an applicant is vulnerable; expressions such as ‘street homeless’ and ‘fend for oneself’ should not supplant the statutory test; and statistical evidence is a dangerous tool for assessing vulnerability.

Outcomes

Kanu’s appeal was allowed: the review wrongly used ‘another ordinary street homeless person’ as comparator and wrongly assumed authorities need not provide for households containing healthy adults. Johnson’s appeal was dismissed: although the review used the wrong comparator and relied on statistics, these errors were immaterial as the officer found he did not suffer from the conditions claimed. Hotak’s appeal was dismissed on the agreed basis that it turned solely on the third-party support point, though Lord Neuberger expressed disquiet and invited Southwark to reconsider. Lady Hale would have allowed Hotak’s appeal.

Implications

The decision clarifies the proper approach to ‘vulnerability’ under section 189(1)(c) of the Housing Act 1996. The correct comparator is an ordinary person if rendered homeless, not an ordinary actually homeless person, displacing the more restrictive local comparators that had developed since Pereira. This is likely to broaden the class of applicants who qualify for priority need.

The majority’s acceptance that third-party support may be taken into account is significant for housing authorities, though tempered by the requirement that such support must be consistent, predictable, and sufficient to obviate vulnerability. Lady Hale’s dissent highlights a continuing tension between practical assessments and statutory purpose, particularly given the perverse incentives identified.

The judgment confirms that the public sector equality duty applies meaningfully to Part VII decisions, requiring reviewing officers to engage rigorously with disability and other protected characteristics. Reviews must be conducted with a ‘proper and conscientious focus’ on the statutory criteria.

The case is important for practitioners advising homeless applicants and local authorities, as it recalibrates the legal test in a way likely to assist more vulnerable applicants. It also reinforces that resources cannot influence the vulnerability assessment, that statutory language should not be displaced by judicial glosses, and that certain Regulations exclude addiction (other than from prescribed medication) and a tendency to steal from the protection of the 2010 Act.

Verdict: The appeal in Kanu v London Borough of Southwark was allowed and the review decision quashed. The appeals in Hotak v London Borough of Southwark and Johnson v Solihull Metropolitan Borough Council were dismissed. Lady Hale dissented in part, considering that Hotak’s appeal should also have been allowed.

Source: Hotak & Ors v London Borough of Southwark & Anor [2015] UKSC 30