The case of Hotak, heard by the Court of Appeal on May 2, 2013 provides a detailed analysis on how the Court’s address the issue of priority need due to vulnerability for homelessness. (Editors Note: This recent case should be read in line with our Homelessness Guides)
In this case, the issue raised was whether, when assessing an applicant’s “priority need for accommodation” under section 189(1)(c) Housing Act 1996 (that is, whether the applicant is “vulnerable” by reason of old age, mental illness or handicap or physical disability or other special reason), the housing authority is entitled to have regard to the personal support and assistance which has been and will continue to be provided to the applicant, if made street homeless, by a family member with whom the applicant is currently living.
In this case the factual background is just as important as the medical background.
Factual background
The appellant Sifatullah Hotak (“S”) was born on 1 May 1989. He is a native of Afghanistan who entered the United Kingdom in February 2008 and made an application for asylum on his arrival. He was granted leave to remain on 8 March 2011 which expires on 8 March 2016. The appellant’s brother, Ezatullah Hotak (“E”), was born on 15 June 1990 and is now aged 24 years. He entered the United Kingdom in 2006 and has since been granted leave to remain.
On S’s arrival in the United Kingdom he lived in Liverpool for about 18 months supported by NASS. He was arrested for an alleged theft of £20 and was remanded in custody. On 12 July 2010, S was released from custody without charge and he travelled to London to be with his brother E. They lived together in a flat belonging to a friend in Peckham in the London Borough of Southwark. In March 2011 S and E were required to leave the flat because of over-crowding. On 25 March 2011 they attended together to make an application for housing assistance from Southwark housing department (“the Council”). E was, at the time of the application, by reason of his immigration status, ineligible in his own right and the application was made by S. The Council took time to make an assessment of the S’s entitlement and needs and, in the meantime, the brothers were accommodated.
Medical background
S suffered learning difficulties which affect his ability to cope with daily living, has self-harmed during his period in custody and has suffered symptoms of depression and post-traumatic stress disorder; that he relies on E for daily personal support, including prompts to undertake personal hygiene, to change his clothes, to undertake routine, and to organise health appointments, meals and finances; that but for E’s support and assistance the probability is that the appellant would be treated as “vulnerable” for the purposes of section 189(1)(c) of the 1996 Act.
The Council’s decisions
On 27 April 2007, after making inquiries under section 184 Housing Act 1996 the Council made a decision that S was eligible for assistance, and was unintentionally homeless. However, it also found that he was not in priority need under section 189(1)(c) because he received assistance from his brother and, in a homeless situation, he would not suffer injury or detriment or be less able to fend for himself than would the ordinary street homeless person.
S requested a review of this decision on 17 May 2012. On 24 June 2011 the Council notified S that it was minded to uphold the decision that he was not in priority need. On 29 June S made further representations. On 30 June 2011 Kojo Sarpong, the Council’s review team leader, notified S that he had reviewed the Council’s decision pursuant to section 202 of the 1996 Act and confirmed it. The relevant passages of the decision letter are as follows:
“Applying that [Pereira] test and taking into account the information on file this authority is satisfied that Mr Hotak’s medical conditions are sufficiently serious…for us to conclude that he may be vulnerable under the provisions of the Act. However, we are also satisfied that Mr Hotak may only be vulnerable if he was a single applicant. Even though we have considered the test as it applies to the individual, we have also considered the totality of factors involved in this case under the provisions of the above Act …
We acknowledge that he has learning difficulties and disabilities and it would be reasonable to conclude that he may find difficulty in finding and maintaining accommodation. If on his own and street homeless Mr Hotak may also be at risk of harm insofar as it may have an impact on his health. However we are satisfied that his brother is capable of providing him with continued housing and support if they were street homeless together.
Ezatullah’s circumstances would not confer priority under the provisions of the Act and we are satisfied that he would not allow circumstances to arise whereby his brother is placed at risk. We are therefore not satisfied that Mr Hotak would be a greater risk than the norm if street homeless as he has a stable support network that will stay with him if he is faced with street homelessness.
The Council is satisfied as a result of the above that when street homeless he would not be less able to fend for himself than an ordinary street homeless person so that injury or detriment to him would result when a less vulnerable street homeless person would be able to cope without harmful effects. As previously stated his brother is capable of continuing to care for the client and we are satisfied that he would be able to continue to do so if faced with street homelessness.
Ezatullah has consistently shown an ability to engage with external agencies such as Mr Hotak’s GP, his psychologist, social services, the Home Office, your [the solicitor’s] services and our services. In addition Mr S Hotak is in receipt of benefits which means that he will also be eligible for housing benefit if he found private sector accommodation.
This authority is satisfied that their personal circumstances do not prevent them from engaging with services in order to find accommodation. Ezatullah is able to effectively manage his daily affairs and we are also satisfied that he can continue to provide support to Mr Hotak. In addition Ezatullah independently manages finances of the household and he is capable to managing his own affairs and the affairs of Mr Hotak. We are satisfied that all of the above would still be possible were they to become street homeless …
We have looked at Mr Hotak’s vulnerability as a composite assessment of his circumstances and have also borne in mind the ability of his brother to find and keep accommodation like others who have similar housing and other circumstances to them. Even though we acknowledge that he has learning disabilities and difficulties we are satisfied that Ezatullah would assist him if street homeless and his circumstances do not confer priority need under the provisions under the above Act.”
Appeal to the County Court
S challenged the Council’s decision by appeal to the County Court on a point of law under s.204 of the 1996 Act. He contended that:
(i) the Council had misdirected itself in law when assessing his vulnerability by reference not just to his personal disabilities but also to the support available to him from his brother and
(ii) there was no evidence to justify the conclusion that E would be able to provide the support identified.
On 27 April 2012 His Honour Judge (“HHJ”) Blunsdon, sitting at Lambeth County Court, dismissed the appeal. The judge held that the Council had not erred in its approach to s.189(1)(c). It had been entitled to conclude on the evidence that S was not in priority need because he received and would continue to receive the support of his brother in the event that they became street homeless.
There was nothing in either the Secretary of State’s Code of Guidance (issued July 2006), or in section 189(1)(c), or in authority, that precluded consideration of the support and assistance of the appellant’s brother by the housing authority for the purpose of assessing vulnerability. On the contrary, although not decisive, the Court of Appeal had, in Osmani v London Borough of Camden [2004] EWCA Civ 1706, [2005] HLR 22 taken account of such support in concluding that a housing authority had been entitled to decide that an applicant was not vulnerable within the meaning of paragraph (c). The judge concluded at paragraph 37 of his judgment:
“37…Am I therefore to blinker myself, ignore the dynamics of their relationship, and assume, although wholly unrealistically, that the support and assistance that the brother has provided will not continue if they become street homeless? Is it realistic to assume that on becoming street homeless, the brother will cease to provide for the appellant, or rather am I prevented even from considering that matter by the statute? I think not. There is nothing in my reading of section 189(1)(c) or the code which, in my judgment, excludes a consideration of family support when assessing whether a person is vulnerable when street homeless. It is a matter of fact and degree to be evaluated by the reviewing officer. The weight to be attached will vary in each case, but clearly the less likely comprehensive support, the less weight will be attached to the input of the third party. The fact that I may have reached a different conclusion is not relevant if I am satisfied that the authority reached a decision within the range of decisions I described earlier.”
This was S’ s appeal against HHJ Blunsdon’s finding in law. The sole issue which this court is required to resolve is whether the judge erred in directing himself as to the circumstances which were material to the statutory assessment.
The statutory scheme
S.189(1) of the 1996 Act provides the following have a priority need for accommodation-
(a) a pregnant woman or a person with whom she resides or might reasonably expected to reside;
(b) a person with whom dependent children reside or might reasonably be expected to reside;
(c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;
(d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster.
In R v Camden London Borough Council ex parte Pereira [1998] 31 HLR 317, the court explained and applied the test identified by the Court in R v Waveney District Council, ex parte Bowers, namely that a “vulnerable” person is someone who is “less able to fend for [him]self so that injury or detriment will result when a less vulnerable man will be able to cope without harmful effects” (per Waller LJ at page 244H).
Appellant’s submissions
These are summarised:
1) S’s support of family or friends provided was irrelevant in the assessment of vulnerability, arguing there is no reason why a “vulnerable” person should be excluded from assistance on the ground that support was available elsewhere when a pregnant woman, for example, would be entitled to assistance even if, with her husband’s support, she would be in no worse position than if she were not pregnant.
2) S’s representative submission points towards a narrow assessment of the S’s vulnerability without reference to means of support within the applicant’s household. He argued the Court in Pereira had to look to the applicant’s ability “to fend for himself”, without being assisted by persons in the same household or outside the household.
3) The court in Osmani adopted the Pereira test which involved no such consideration. It was the impact of depression upon Mr Osmani’s ability to cope on which the Court was focusing its attention.
4) S submits that the Secretary of State’s Code of Guidance cannot provide assistance as to the correct interpretation of s.189(1)(c). The question whether circumstances extraneous to the appellant’s qualifying condition are relevant to whether he would be “vulnerable” if homeless is a matter of law.
Respondent’s submissions
These are summarized:
1) R indicated s.21(1)(b) of the National Assistance Act 1948 gave the power to social services authorities to provide: “… temporary accommodation for persons who are in urgent need thereof, being need arising in circumstances which could not reasonably have been foreseen or in such other circumstances as the authority may in any particular case determine.” He submitted that if S was adjudged not to be in priority need under s.189(1)(c), the 1948 Act could assist him.
2) R submitted that the 1996 legislation had distinguished between the qualifying standard for families with children and pregnant women, for whom priority need is assumed, and other individuals who may qualify by reason of their vulnerability. For vulnerability, in Waveney District Council ex parte Bowers [1982] the Court held that the test was whether the applicant was (for one or more of the statutory reasons) “less able” to fend for himself so that injury or detriment would result when a less vulnerable man (later, an average or ordinary homeless person) would be able to cope without harmful effects.
3) The vulnerability test requires relevant personal circumstances be taken into account which includes sources of assistance available to the applicant which render him no worse off than the average homeless person.
4) S.189(1)(c) gives to a person who resides with a vulnerable person an equal right only if that other person is “vulnerable”, and is not favourable just because an person is pregnant or the applicant has children.
5) It is acknowledged that if a supporter chose to cease supporting the qualifying applicant the Council would have to make an assessment of vulnerability on that factual basis; but that is not an argument as this would be to make an assessment in fictional rather than actual circumstances. If S’s circumstances change, a safety net is present in the form of a fresh application based upon the changed circumstances.
6) The Council submits that the fact of support from Mrs Osmani to her husband was treated by the court in Osmani as a material consideration. If, applying the Pereira test, the support of his wife was an immaterial consideration, the Court could be expected to have said so.
Discussion
1) In Osmani the Court held that the Pereira test should not be read by housing authorities as if it were a statute. It is s.189(1)(c) in its the broad and immediate statutory context that a housing authority must apply. The Pereira test is only a judicial guide, although an important judicial guide, to interpretation of the statutory provisions. The housing authority will address the statutory context of establishing priority need by examining a number of circumstances, including vulnerability. One only has to apply the Pereira test to any particular case by asking the question whether the applicant would, “by reason of whatever condition or circumstances assail him”, suffer greater harm from homelessness than would an ordinary homeless person, to see what an imprecise exercise it imposes on a housing authority. Such decisions are likely to be highly judgmental.
In the present case the circumstances were unusual. As the reviewing officer found, S was young and physically fit and at a disadvantage only to the extent that he needed regular reminders to fulfil the requirements of his daily living. His brother was committed to providing the personal support necessary to ensure that he would not come to any harm or suffer any disadvantage by reason of homelessness. Counsel could find no previous occasion on which this Court has unequivocally addressed the question whether all the applicant’s circumstances may be considered when making the evaluation of vulnerability, including assistance available to the applicant to avoid harm that would otherwise be caused by his qualifying condition.
In Osmani the principal explanation for the reviewing officer’s decision was that Mr Osmani retained his ability to function normally in his daily living and that with medical assistance and the support of his wife there was no reason to doubt that his normal functioning would survive homelessness. Dr McNicol acknowledged the support Mr Osmani was receiving from his wife and the fact that her support would continue. It was concluded that medical treatment and other support was relevant to the issue whether, by reason of his mental disorder, Mr Osmani would, by comparison with a homeless person without his disorder, be “less able to fend for himself so that injury or detriment to him will result”. Since Mr Osmani was making a perversity challenge to the decision, it is my view that, had it occurred to anyone that Mrs Osmani’s ‘support’ was irrelevant to the decision, the issue would have formed a significant part of the judgment.
2) The Code of Guidance cannot assist interpretation of s.189(1)(c); nor can any inference be drawn from the express reference to the support of family or friends or, in one case (chapter 10.20(iv)), the support of a mentor, in the case of some categories of vulnerability but its absence in the case of others.
The statutory qualifying words “a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason”. A relevant vulnerability may include but is not limited to an inability to obtain housing unaided by the housing authority. It embraces any homelessness context in which the applicant may be less able to fend for himself so that injury or detriment may be suffered by him which would not befall the average homeless person. As the cases emphasise, the assessment process is not a purely theoretical but an intensely fact sensitive and practical one, for the purpose of identifying the priority need for allocation of resources.
The Court held the judge was correct in law. The reviewing officer was not required to make an assessment of vulnerability in isolation from the applicant’s known personal circumstances. Those personal circumstances may in any case serve to emphasise the applicant’s vulnerability (for example, because he is living alone without support) or to demonstrate that, despite the existence of the qualifying reason, the applicant is not vulnerable (because he has support which so compensates him that he would be in no worse position if made homeless than the average homeless person).
Conclusion
For this reason, the Court of Appeal found the judge made no error of law and dismissed the appeal.
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