Section 189 of the Housing Act 1996 defines categories of people who are in priority need as follows:
1. Pregnant women, or a household with a pregnant woman
2. Households with dependent children
3. All 16 – 17 years olds
4. All 18 – 20 years old whilst under the age of 18 were looked after children
5. Any person who loses their accommodation as a result of an emergency (flood, fire etc)
6. A person who is homeless as a result of being a victim of domestic abuse
7. And finally, vulnerable persons
A vulnerable person is classified as someone who is vulnerable as a result of: old age, mental illness or disability, having been in care and aged over 21, having been a member of the armed forces, having served a custodial sentence, or having had to leave accommodation because of violence or threats of violence or some other special reason (see section 189(1)(c)).
Case law on the meaning of vulnerability
Vulnerability has not been defined in the Housing Act 1996 and it has been left to the courts to devise a definition.
A 1998 case in the Court of Appeal, Pereira v Camden Council, set the test for vulnerability as being that a person should be considered vulnerable if being homeless would make them suffer more than ‘the ordinary homeless person’.
In 2004 subsequent case law refined this definition so that the comparator was an ordinary street homeless person (Court of Appeal – Osmani v Camden Council).
The main difficulty lay in the use of the comparator. Statistics showed that actual ordinary homeless persons were likely to suffer from mental and physical ill health. A comparison with an ordinary street homeless person therefore produced a ‘super-vulnerability test’: more vulnerable than the vulnerable.
Almost 20 years later from Pereira, the Supreme Court looked at the definition of vulnerability in Hotak v Southwark LBC (2015).
At the Supreme Court hearing, counsel for the interveners, Shelter and Crisis, showed examples of decisions in which homeless applicants with depression and suicidal tendencies, or those who had suffered from serious abuse when homeless, were denied priority need status on the basis that they were no worse off than many actual homeless people.
At paragraph 56, Lord Neuberger hit the nail on the head, stating:
“It does not seem probable that Parliament intended vulnerability to be judged by reference to what a housing officer thought to be the situation of an ordinary actual homeless person. Such an assessment would be more likely to lead to arbitrary and unpredictable outcomes than if one takes the ordinary person if rendered homeless, and considers how the applicant would fare as against him. Equally importantly, if the comparison is with the ordinary actual homeless person, then… as Sedley J pointed out in R v Hammersmith & Fulham London Borough Council, Ex p Fleck (1998) 30 HLR 679, 681, there would be a real risk that “a sick and vulnerable individual (and I do not use the word ‘vulnerable’ in its statutory sense) is going to be put out on the streets”, which he described as a “reproach to a society that considers itself to be civilised”.”
Hotak changed the legal comparator from the ordinary street homeless person to the ordinary person if made homeless. The decision also confirmed the correct approach to be whether the applicant is ‘significantly more vulnerable than ordinarily vulnerable’.
So, the vulnerability assessment requires the council to compare the applicant with another hypothetical person who does not share the person’s characteristics of vulnerability. The comparison is with the ‘ordinary person if made homeless’ and not a hypothetical or actual ‘ordinary homeless person’. People who are already homeless or sleeping rough might already be more vulnerable than the wider population. The person should be compared with an ordinary person who is in need of accommodation.
The Hotak test was further clarified by the Court of Appeal in Panayiotou v Waltham Forest LBC (2017).
The Court of Appeal considered the meaning of the word ‘significantly’ in the context of ‘significantly more vulnerable than ordinarily vulnerable’.
The legal test ‘significantly more vulnerable than ordinarily vulnerable’ was causing problems in the County Court. HHJ Lamb QC (in HB v Haringey LBC) and HHJ Luba QC (in Butt v Hackney LBC) had both held that a reviewing officer must explain what is meant by ‘significantly’. By contrast, Recorder Powell QC (in Ward v Haringey LBC) took the view that ‘significantly’ is an ordinary English word that needed no further explanation.
The Court of Appeal found that ‘significantly’ did not mean ‘more than minor or trivial’. Rather, it involved a qualitative and not a quantitative assessment. The question to be asked is whether, when compared to an ordinary person if made homeless, the applicant, in consequence of a characteristic within section 189(1)(c), would suffer or be at risk of suffering harm or detriment which the ordinary person would not suffer or be at risk of suffering such that the harm or detriment would make a noticeable difference to his ability to deal with the consequences of homelessness. Or, to put it another way, ‘an applicant would be vulnerable if he were at risk of more harm in a significant way’. Harm in this context refers to ‘an impairment of a person’s ability to find accommodation or, if he cannot find it, to deal with the lack of it’. The latter might take the form of ‘an expectation that a person’s physical or mental health would deteriorate; or it may be exposure to some external risk such as the risk of exploitation by others’.
An example was posed to the court in Panayiotou; the case of a homeless person who was a keen rock climber, but was unable to pursue his hobby due to a knee problem. In one sense, he was more vulnerable than an ordinary person who presumably would not have an injured knee, but was his injury significant – would it have a bearing on his ability to deal with the consequences of being homeless? Probably not.
Some commentators have interpreted Panayiotou to mean that the significance of an applicant’s vulnerability is primarily a question of its relevance to the applicant’s ability to deal with the consequences of homelessness i.e. will a particular characteristic or condition have a noticeable effect on the applicant’s ability to find accommodation or, if it cannot be found, to deal with the lack of it? If so, then it is of significance. But if the effect is not noticeable, is something that would be experienced by any ordinary person, or is entirely unrelated to the ability to find accommodation or deal with the lack of it, then it will not be of significance. This approach focuses on the nature or quality of the condition which would seem to be in keeping with the court’s reference to a qualitative assessment.
The focus should not, on the other hand be (or solely be) on the degree of magnitude of the harm. So it is not as simple as asking whether the effect of a condition or characteristic is ‘more than minor or trivial’, or at the other end of the spectrum, whether it would result in ‘more harm plus’: a quantitative assessment.
Sources:
Managing Homelessness not Rock Climbing. When is Harm ‘Significant’? | Cornerstone Barristers
New guidance for vulnerable persons handed down | Doughty Street Chambers
House of Commons – Homelessness – Communities and Local Government Committee
Solicitors Journal – No such thing as an ‘ordinary homeless person’ | Cornerstone Barristers
Priority Need, Vulnerability & Homelessness
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