Changing the meaning of ‘vulnerable’ under the homelessness legislation?

Abstract

The Supreme Court judgement in Hotak v Southwark London Borough Council (Equality and Human Rights Commission and others intervening) [2015] UKSC 30; [2015] 2W.L.R. 1341 appears to have significantly altered prevailing understandings of the meaning of ‘vulnerability’ within the homelessness legislation’s concept of priority need. This paper analyses Hotak’s doctrinal effects, and questions both the adequacy of the court’s reasoning and the likelihood of those formal doctrinal changes leading to a concomitant alteration to the content of the decisions that local authorities reach.

Keywords:

• Homelessness
• priority need
• vulnerability

Notes

1. Housing Act 1996 ss. 185–186. This notion of ‘eligibility’ has become an extremely complex element of homelessness law because of the frequent alterations made to the relevant regime through statutory instruments and the impact of ECJ judgments relating to the free movement of workers. See Arden, Orme, and Vanhegan (2012), ch. 3; Cowan (2011), ch. 8.

2. The House of Lords concluded that this presumption was erroneous in R v Brent LBC ex parte Awua [1996] 1 AC 55. See Hunter and Miles (1997); Cowan (1997a); Challen (1999).

3. The tenancy may be an assured shorthold tenancy, which provides the tenant with very little security of tenure. Local authorities also make increasing use of so-called non-secure tenancies in discharging their s.193 obligations to homeless persons, often in respect of housing which the authority itself has rented (sometimes at very high cost) from private sector landlords. See further the reference to s.206 of the Act at fn 37 below and accompanying text.

4. For a discussion of this duty see R (Conville) v Richmond upon Thames LBC [2006] EWCA Civ 718; [2006] 1 WLR 2808.

5. Mohamed v Hammersmith and Fulham LBC [2001] UKHL 5; [2002] 1 AC 457.

6. S.189(2) empowered the Secretary of State to extend the categories of priority need through a statutory instrument. That power was exercised in 2002 in the Homelessness (Priority Need for Accommodation) Order 2002 SI No. 2051. The order specified inter alia that a person might be vulnerable as result of having previously been in various types of institutional settings or having been a victim of domestic violence. One might have thought such matters fell anyway within the scope of the ‘other special reason’ proviso in s.189(1)(c); see for example the broad view taken of that phrase in R v Waveney DC ex parte Bowers, and the discussion of the point in Arden, Hunter, and Johnson (2006), pp. 136–137.

7. As will become evident in the discussion below, the word is used guardedly if not ironically.

8. [2015] UKSC 30; [2015] 2W.L.R. 1341. Hotak in the Court of Appeal is reported at [2013] EWCA Civ 515; [2013] PTSR 1338.

9. [2013] EWCA Civ 752 [2013] HLR 524.

10. [2014] EWCA Civ 1085 [2014] PTSR 1197.

11. Hotak para 21.

12. Hotak at para 26.

13. Hotak at para 31.

14. (1998) 31 HLR 317.

15. At para 10.13 (with emphasis in bold type) of the 2003 edition; at para 10.13 (still in bold type) of the 2006 (and latest) edition; https://www.gov.uk/government/publications/homelessness-code-of-guidance-for-councils-july-2006. The Act requires local authorities to have regard to the code when making any decisions (s.182), but the code is of course merely guidance and not an authoritative statement of the meaning of any provision of the Act.

16. See for example Griffin v Westminster CC [2004] HLR 32 at para 16: Osmani v Camden LBC [2004] EWCA Civ 1706; [2005] HLR 46 at para 37. Indeed in Osmani the passage in Periera cited above was described – extraordinarily - as: ‘the classic test’; per Auld LJ at para 37. It should however be noted that Auld LJ also took pains to say (at para 38) that:

‘(1) It is s.189(1)(c) in its broad and immediate statutory context that a local housing authority has to apply, not the Pereira test as if it were a statutory formulation. The Pereira test is simply a judicial guide – albeit and to the extent that it is sufficiently precise, an important one – to interpretation and application of the statutory provision’.

As noted below, that cautionary emphasis is underlined in Hotak.

17. Hotak at para 49.

18. See for example Mason (2005). It may be that the explanation is that the judgement attracted far more attention in the professional than academic press, where the author’s concern was how best to argue a case (whether for appellant or respondent) within ‘the law’ than to question the adequacy of ‘the law’ itself. See also Nicol (2007). A Westlaw ‘journal article’ search linked to Pereira identifies a good many ‘professional’ articles dealing with the case, but none at all in academic journals.

19. Ibid. That is a polite way of putting it. ‘How does one tell if a person is fat or slim?’ ‘Well she is fat/slim because she is more fat/slim than someone who is less fat/slim than she is?’ One would not expect a five year old to be satisfied by that explanation.

20. This point did not escape Baroness Hale’s attention in Hotak; see para 92.

21. There is certainly some evidence in empirical studies of homelessness administration that both the conduct and outcome of officer decision-making is heavily influenced by perceptions of the resources available to the authority; cf. in particular Halliday’s ‘siege mentality’ characterisation of the process (Halliday, 2004, p. 55) and more generally Loveland (1991); Cowan (1997b).

22. [1993] QB 238 at 244–245.

23. Cf Arden et al. (2006), p. 133 and the reference to Bellouti v Wandsworth LBC [2005] EWCA Civ 602; [2005] HLR 46.

24. See for example Fox (2002): Latham (2011).

25. Housing Act 1996 s. 175 Homelessness and threatened homelessness.

(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he –

(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court,

(b) has an express or implied licence to occupy, or

(c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.

(2) A person is also homeless if he has accommodation but –

(a) he cannot secure entry to it, or

(b) it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it,

(3) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy,

(4) A person is threatened with homelessness if it is likely that he will become homeless within 28 days.

26. The point was first (clearly) made in Osmani v Camden LBC [2004] EWCA Civ 1706; [2005] HLR 22 at para 38.

27. See the brief discussion of the point in Bates (2015).

28. Manifestly, not all departures from the ‘ordinary’ point towards a finding of vulnerability. A person with only one eye is not ‘ordinary’, but that ‘extraordinary’ feature does not render her less able to avoid suffering serious harm if her vision in her other eye is unimpaired.

29. See paras 21, 43 and 84 of the judgement.

30. At para 43.

31. At para 84.

32. [2004] EWCA Civ 1706; [2005] HLR 22 at para 38.

33. The quotation is of course from Lord Simonds judgement in Magor and St Mellens RDC v Newport Corporation [1952] 2 AC 189 at 191.

34. Cf. the comment in Arden et al. (2006, p. 354, n.73): ‘it may be said that consideration of the general housing circumstances of an area as an element in a decision on homelessness, and on intentionality, might be said to import ‘resources’ by the back door’.

35. Copley (2014): Boffey (2014).

36. As counsel, of course one argues a point, expecting to win it, and so assuming it has irrefutable merit in the immediate litigation context, while thinking (wearing an academic hat) that the point has no merit at all.

37. Southwark’s s.202 decision was afflicted with some of the other difficulties which were dealt with in respect of the Johnson and Kanu appeals, but those points had not been pleaded and were not argued by Mr Hotak’s counsel before the Supreme Court; see Hotak at paras 86–89.

38. Hotak at para 62.

39. London boroughs are of course both housing and social services authorities. Elsewhere in the country, most housing authorities are not also social services authorities.

40. Hotak at para 65.

41. S.206 Discharge of functions by local housing authorities.

(1) A local housing authority may discharge their housing functions under this Part only in the following ways –

(a) by securing that suitable accommodation provided by them is available,

(b) by securing that he obtains suitable accommodation from some other person, or

(c) by giving him such advice and assistance as will secure that suitable accommodation is available from some other person.

42. The government’s latest homelessness statistics record some 27,500 applications having been made between April and June 2015. 17% of those applicants (around 4,600) were found not to be in priority need; (Department for Communities and Local Government, 2015). It is not possible to deduce from the figures how many such people were found not to be vulnerable per s.189(1)(c).

43. [2009] UKHL 7: [2009] 1 WLR 413. See the comments on the point in Cowan (2011), pp. 175–177.

44. For some insight see Cowan, Halliday, and Hunter (2006).

45. Galanter (1974).

46. At para 78.

47. Application number 40378/10; 20 October 2015; (2016) 63 EHRR 20.

48. [2017] UKSC 36; [2017] 2 WLR 1417.

49. At para 42.