Hotak v London Borough of Southwark

For vulnerability under section 189(1)(c) of the Housing Act 1996, the authority must make a practical and composite assessment of the applicant’s circumstances when homeless. The question is whether the qualifying condition causes the applicant to be less able than an ordinary homeless person to fend for himself, with resulting injury or detriment.

Actual and continuing personal support from a family member may be relevant. It may show that the applicant will not be vulnerable, but its likely availability and effectiveness after homelessness must be evaluated carefully. The Pereira formulation is an important judicial guide, not a substitute for the statutory question.

The appellant had learning difficulties, mental-health symptoms and a need for daily support from his brother. It was accepted that he would probably be vulnerable if street homeless without that support.

The local housing authority decided, following an inquiry and review under the Housing Act 1996, that he had no priority need. It found that his brother would continue to support him if they became homeless. HHJ Blunsdon dismissed the appellant’s County Court appeal under section 204 on 27 April 2012.

The appeal raised the single legal issue whether an authority assessing vulnerability under section 189(1)(c) could take account of continuing support from a family member living with the applicant.

Appeal dismissed. Pitchford LJ, with whom Richards and Moore-Bick LJJ agreed, held that the County Court judge had made no error of law.

1. Section 189(1)(c) of the Housing Act 1996 requires a causal and comparative assessment. The applicant must be vulnerable because of a qualifying condition or other special reason. The relevant question is whether, when homeless, he will be less able to fend for himself than an ordinary homeless person, so that he will suffer injury or detriment which that person would avoid. The test in R v Waveney District Council, ex parte Bowers [1983] 1 QB 238 and R v Camden London Borough Council, ex parte Pereira [1998] 31 HLR 317 was an important guide, but the statutory language remained decisive.

2. The assessment was intensely fact-sensitive and had to reflect all the applicant’s actual personal circumstances. It was not to be conducted on a premise known to be false. Accordingly, support willingly given by a brother could be relevant if it would continue when the applicant became homeless and would prevent the qualifying condition from making him less able to cope. The court regarded Osmani v Camden London Borough Council [2004] EWCA Civ 1706 as treating continuing spousal support as material to that assessment.

3. Support was not automatically decisive. The reviewing officer had to assess the applicant’s position in homelessness, not while housed. Existing support might not continue or might prove insufficient in that setting; some conditions might render an applicant vulnerable despite extensive support. Here, however, perversity was no longer alleged, and there was material on which the reviewing officer could find that the brother’s continuing support prevented the appellant from being vulnerable.

1. Court of Appeal (Civil Division) Dismissed the appeal and upheld the County Court’s decision: [2013] EWCA Civ 515.
2. Lambeth County Court HHJ Blunsdon dismissed the appellant’s section 204 appeal on 27 April 2012, holding that family support could be considered in assessing vulnerability under the Housing Act 1996.
3. London Borough of Southwark On a statutory review under section 202 of the Housing Act 1996, the authority confirmed that the appellant was not in priority need because of his brother’s continuing support.