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Case note : Hotak & Ors v London Borough of Southwark [2015] UKSC 30

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CASE NOTE

Hotak v. London Borough of Southwark [2015] UKSC 30

Introduction

This is a decision made in 2015 by the Supreme Court of the UK. It is a judgment concerning the law on homelessness as well as the meaning of the vulnerability clause as enshrined in section 189 of the Housing Act 1966 (The Act). Prior to this decision, vulnerability was assessed in line with the Pereira Test that had been laid out by the court in 1988. This case involved three conjoined appeals related to the duties of the local housing authorities towards those that are homeless and vulnerable and hence have priority need for accommodation. Part VII of the Act obligates the local authorities to cater for the homeless or those that are threatened by homelessness. In all the three conjoined appeals, the relevant local authorities had declined to honor these obligations on the basis that none of the three appellants, (Kanu, Johnston and Hotak) was vulnerable within the ambits of Section 189 of the Act. This case is significant in the sense that the decision provided a rubric on how housing officials and even the courts may interpret the aspect of vulnerability as enshrined in part VII of the Housing Act 1966.

This appeal was heard before the Supreme Court on the 14th, 15th and 16th of December 2014 before a 5-bench Judge consisting ofLord Wilson, Lord Clarke, Lord Neuberger, Lord Hughes and Lady Hale. In a judgment that was delivered on 13th May 2015, the court allowed Kanu’s appeal and dismissed both Johnston and Hotak’s appeals. Within its judgment, the court dealt with three pertinent issues. The first issue was whether or not an applicant could be compared to a group of people when determining the issue of vulnerability. If the answer be in the affirmative, then which group could such comparison is benchmarked against? The second issue was whether support from third parties and family members could be factored into the determination process. Third, was the question regarding the influence of Public Sector Equality Duty (PSED) on determinations for priority need as prescribed under Section 189 more so in cases where applicants have disabilities?

In terms of vulnerability, the court held that it should be determined comparatively ([59] & [93]). The court opined that the comparator should be that of an ordinary man if made homeless man ([58]). On the issue of local authorities, the court held that support from third parties could be factored when determining whether or not an applicant satisfies the conditions laid out under section 189. On the issue of PSED, the court emphasized that a reviewing officer, while assessing where or not an applicant is vulnerable, may satisfy the requirement of equity unintentionally ([79]).

Background of the Appeal

Part VII of the Act imposes duties on Councils to take care of homeless persons as well as those faced with the threat of homelessness. The duty imposed on the local authorities by this Act is therefore dependent on whether an applicant is eligible to be assisted by being in priority need for accommodation as well as unintentionally homeless. Such applicants considered themselves as being vulnerable and hence sought the help of local authorities by applying for assistance under the Act.

The decision by Lord Hobhouse in R v. Camden London Borough Council in 1988 for a long time remained the benchmark in making assessments concerning vulnerability. Lord Hobhouse argued that an applicant ought to be assessed when compared to an ordinary homeless person, and whether such a person would be in a position to survive. The judge also opined that it was important for such an inability to be seen as ending up in more harm than an ordinary homeless person can withstand. Although this interpretation was not converted into law, it became known as the ‘Pereira Test’, and was often used by local authorities in determining similar applications.

Johnson had made an application in respect of section 189 of the Act before the Solihull Borough of Southwark. His application was denied on the basis that he had not demonstrated that he was unable to care for himself when compared to a homeless man or ordinary stature. He then decided to appeal and his main contention was that the Council had not used the correct comparator in reaching their determination.

Kanu also made an application in respect of section 189 of the Act before the London Borough of Southwark. His application was rejected. Kanu appealed this decision. He contended that in arriving at the decision to reject his application, the council had compared him to a person who is homeless and of ordinary stature. This, he felt, was not the correct comparator under the circumstances that he had found himself in. Also, since he had a disability, he contended that the council had failed to comply with the PSED as required by law.

Hotak had also made an application in respect of section 189 of the Act before the London Borough of Southwark. During this time, Hotak’s brother continually assisted him in carrying out his daily chores because he had difficulties in learning. The council therefore rejected Hotak’s application on grounds that his brother would continue to take care of him should he become homeless. His contention therefore was that the council could not take into account his brother’s assistance in deciding whether or not to accept his application. Rather, he felt that the council ought to have made their determination without factoring in his brother’s efforts to help him.

Facts of the Case

Hotak came to the UK in 2011 as a refugee from Afghanistan. He had difficulties in learning and had an IQ of 47. In addition, he had a history of harming himself. He also suffered from post-traumatic stress disorder and depression. Because of these complications, Hotak relied on his brother to assist with his daily chores including cleaning and cooking food. Unfortunately, his place of accommodation gradually became crowded and he was therefore required to vacate. As a result, Hotak decided to apply to the Council for assistance since he felt he had met the criteria for such an application. The application was not successful and was consequently rejected. The Council argued that he did not satisfy the priority need and that in any case if he was rendered homeless that his brother would provide for him. Hotak, having been dissatisfied with this decision, appealed.

Decision

In the preliminary points preceding the determination of the appeal issues, the court warned local authorities against placing reliance on tests that had been borne through pronouncements in courts in substitution of the statutory test ([40]). On the issue of vulnerability, the court unanimously held that assessment should be done comparatively. The court held that it makes sense that a homeless person would be vulnerable but that the essence of Section 189 was to recognize people who required housing as a matter of priority ([51] and [93]). The court opined that the standard for vulnerability ought to be at a level that is above what would be considered vas ordinary level vulnerability ([53]). The court also made a determination that rather than compare an applicant to a homeless person of ordinary stature, the correct gauge is that of an ordinary person if made homeless ([58]).

On the issue of factoring support when assessing whether or not a person is vulnerable, it was held that assistance from third parties could be taken into account. The court opined that the determination of an applicant’s situation was indeed a practical assessment rather than a clinical one ([62]). The court however determined some caveats. First, there ought to be satisfaction that the support would be consistently available to the applicant ([65]). Second, it is possible that an applicant could be vulnerable even in the face of such assistance ([69]). Thirdly, it should be devoid in terms of a presumption as to what would be considered as reasonable support from third parties. Rather, what ought to be considered is whether the applicant is assured of such support as stated ([70]). In a dissenting opinion, Lady Hale opined that although it was okay to factor in public services as duties imposed by statutes, the same could not be said of family support which can go and come depending on the circumstances ([95]).

On the issue of PSED, the court affirmed the requirement that an official ought to focus on the disability, the scope, the outcomes as well as if it caused the applicant to be ina position of vulnerability ([78]). In addition, the court also found that it was possible for a reviewing officer, while assessing vulnerability, to comply with the equality expectation without even realizing it ([79]).

This case was a relief in the sense that it gave an interpretation of the vulnerability clause under section 189 of the Housing Act 1966. This case effectively overturned the Pereira Case that had been in place since 1988. Also, it is important that the court clarified that obiter dictum should not be relied on as a source of law ([40]).

Reference

Hotak & Ors V. London Borough of Southwark [2015] UKSC 30.

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