Cornerstone note Supreme Court homelessness judgment

01 Jan 2018

Housing, Public Law and Judicial Review

The Supreme Court has this morning handed down judgment in three conjoined appeals – Hotak v London Borough of Southwark; Kanu v London Borough of Southwark; Johnson v Solihull Metropolitan Borough Council [2015] UKSC 30.

Broadly, the issue in these cases is the proper approach to determining whether a homeless applicant has priority need for accommodation as a result of vulnerability under section 189(1)(c) of the Housing Act 1996 (“the Act”).

In Hotak and Johnson the LHA’s decisions were upheld (subject to an outstanding application in Hotak), and in Kanu the LHA’s decision was quashed. The implications of the judgment go well beyond the facts of the three cases.

This briefing aims to set out in clear and short form the lessons to be learned from the Court’s judgment, its implication and its impact on LHA homelessness functions. Cornerstone Barristers is well-placed to do so: two of its silks Ashley Underwood QC and Kelvin Rutledge QC appearing with Catherine Rowlands for the LHAs and Bryan McGuire QC appearing with Matt Hutchings and Jennifer Oscroft for the interveners Shelter and Crisis.

Summary of the decision
The main issues before the Supreme Court were:

  1. Whether assessing vulnerability involved a comparison;
  2. If so, whether the right comparator was an ordinary homeless person, or an ordinary person who happened to be homeless;
  3. Whether the Equality Act 2010 added anything to the decision-making process; and
  4. Whether, when assessing an applicant’s vulnerability, the LHA could take into account third party support available to him or her.

In summary, the answers given by the Supreme Court were:

  1. Vulnerability is a comparative concept and therefore involved an exercise in relativity.
  2. The correct comparator is not an ordinary homeless person but an ordinary person if made homeless.
  3. The relevant test is whether the applicant would be ‘significantly more vulnerable if homeless than an ordinary person.
  4. The LHA is required to pay close attention to the particular circumstances of the applicant in all vulnerability cases, but in cases where the Equality Act 2010 applies, the decision maker is required to focus sharply on the effects of disability on the applicant.
  5. The LHA can take into account the third party support available to an applicant from any source, including family members, provided it is satisfied the support will be available to the applicant on a consistent and predictable basis.

The Facts
In Hotak, the LHA had decided that Mr Hotak – who has significant learning difficulties, a history of self-harming, and symptoms of depression and PTSD – was not in priority need of accommodation: if he were homeless, the LHA decided, his brother would provide him with the support he needed. It upheld that decision on review; and Mr Hotak’s appeals before both the County Court at Lambeth and the Court of Appeal failed. On further appeal to the Supreme Court, the only point taken was whether the review officer had been entitled to take into account the fact that Mr Hotak could expect to receive support from his brother if homeless.

In Kanu the LHA had decided that Mr Kanu – who suffers from back pain, hepatitis B, hypertension, haemorrhoids, psychotic symptoms and suicide ideation – was not in priority need of accommodation. On review, it took into account the fact that Mr Kanu’s wife and son had the ability to fend for the whole household if homeless. On appeal, Mr Kanu succeeded at first instance but not before the Court of Appeal. One of the issues before the Court was the LHA’s compliance with the public sector equality duty (PSED) in section 149 of the Equality Act 2010. The Court of Appeal found that the duty added nothing to the assessment of priority need.

Finally, in Johnson, the LHA also found that the applicant – who has a heroin addiction, lower back trouble, sleeping problems, depression, paranoia and asthma – was not in priority need of accommodation; and Mr Johnson’s appeal to the county court failed. Adopting the county court’s analysis, the Court of Appeal rejected the appeal, finding that the LHA’s review decision contained no misdirection in law and that the review officer had reached a conclusion to which a reasonable review officer could have come.

Court’s Findings
Lord Neuberger delivered the judgment on behalf of the majority, Lady Hale giving a minority judgment in Hotak.

The correct approach to ‘vulnerability’
The vulnerability with which section 189(1)(c) is concerned is an applicant’s vulnerability if homeless (37).

When assessing vulnerability, the LHA has to pay close attention to the applicant’s particular circumstances and conduct a composite assessment (38).

When assessing vulnerability, it cannot take into account its own burden of homeless persons or its finite resources (39).

The well-known and oft-cited guidance given by Lord Justice Hobhouse in R v Camden London Borough Council, Ex p Pereira (1998) 31 HLR 317 at p.330:

“[whether the applicant] when homeless [will be] less able to fend for himself than an ordinary homeless person so that injury or detriment to him will result when a less vulnerable man would be able to cope without harmful effects”

Is unhelpful (40, 48) and does not represent the statutory test (41).

The assessment of vulnerability requires a comparator (50-51).

The correct comparator is not the ordinary homeless person, but the ordinary person who is homeless (57-58). Indeed, strictly, the proper comparator is the ordinary person, who is in need of accommodation (59).

The proper test is whether the applicant is (53): “…”significantly more vulnerable than ordinarily vulnerable” as a result of being rendered homeless…”

The wording of section 189(1)(c) makes it clear that an applicant can be vulnerable even if he or she resides, or can be expected to reside, with a third party in reasonable physical and/or mental health (45).

Third Party support
As for the Hotak issue, the majority view was that a LHA can take into account the third-party care and support available to an applicant, who might otherwise be vulnerable (61). Lady Hale would have allowed consideration of support available by statute alone (93).

The Court’s unanimous view was that a LHA should only take third party support into account if that support would be available on a consistent and predictable basis (65). Further, the reviewing officer must always consider very carefully whether an applicant would be vulnerable after taking account of the support available to him or her (70).

Lord Neuberger rejected the argument that this approach would fall foul of section 15 of the Equality Act 2010 (disability discrimination) (80).

Equality Act 2010
Finally, the Court considered the proper approach to the PSED, which is complementary to the LHA’s homelessness duty (78). It rejected the notion that the PSED necessarily added nothing to the duty of a LHA when assessing vulnerability, despite acknowledging that a conscientious review might comply with the PSED even if the officer was ignorant of it (79; 82).

Conversely the mere mention of the PSED might not be enough (82). The decision-maker must focus “very sharply” on (78):

  1. whether the applicant has a disability or other relevant protected characteristic;
  2. the extent of any such disability;
  3. the likely effect of the disability (with any other circumstances) on the applicant if and when homeless, and
  4. whether the applicant is vulnerable as a result.

Implications of the Judgment
LHAs may wish to review existing decisions in the light of this judgment. However, as
Lord Neuberger clearly stated (81):

“It is plain that an appeal against a review cannot succeed in every case where the wrong comparator has been invoked or a wrong legal assumption is made. Indeed, I do not think Mr Kanu’s appeal could succeed if the only error was the reference to “street homeless”.”

Indeed in Johnson, as in Kanu, the Court found that the wrong comparator, relying on the old Pereira approach, but Mr Johnson’s appeal was dismissed nonetheless because the review officer had concluded that he did not suffer from depression; and his physical ailments were irrelevant to the issue of vulnerability. There was no need, therefore, for any exercise of comparison (84).

It follows that, if a LHA has already found that an applicant’s problems would have had no significant effect on his or her situation if homeless, then its decision on vulnerability may yet survive challenge, notwithstanding its reliance on Pereira.

The Court’s decision on the issue of ‘third-party support’ is significant for LHAs, as is its confirmation that this extends to all forms of support, not just social care provded by a close family member.

The PSED is an important obligation with which LHAs must comply. It is unlikely, however, to add considerably to a LHAs task: in practice – as in Kanu – a thorough vulnerability decision will very probably satisfy the PSED’s requirements, even if the decision does not expressly refer to it or, indeed, the officer was ignorant of its requirements (82).

As a postscript, it is worth mentioning the ‘worsening condition’ scenario, which arose in Mr Kanu’s case and may arise in many others, enabling the applicant to make a fresh homeless application on new facts (83).

As is often the case when the Court overturns established case law, a number of residual issues are left, to be addressed in future cases. In this instance, they include:

  1. what does ‘significantly’ more vulnerable mean;
  2. how are LHAs to judge the vulnerability of an ‘ordinary person’; and
  3. to what extent can LHAs take into account third party support, such as charitable support, that is available to all homeless persons, including ordinary persons when homeless?

Clearly, applicants and LHAs will be litigating the consequences of the Supreme Court’s judgment for a long time yet.