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Case Summary: Hotak, Kanu and Johnson
What’s the difference between an ordinary homeless person and an ordinary person
if made homeless? It may be the difference between winning and losing your appeal
in the Supreme Court.
Lord Neuberger delivered yesterday the majority judgment in the conjoined appeals
of Hotak v LB of Southwark, Kanu v LB of Southwark and Johnson v Solihull MBC
[2015] UKSC 30. The cases all concerned whether or not applicants for assistance
under Part VII of the Housing Act 1996 were “vulnerable” for the purposes of
s189(1)(c) and therefore had a priority need for housing. This is an important case
and worth reading in full, but what follows is a synopsis of the most essential
features of the decision.
The appeals raised 3 principal issues:
1. To determine whether or not someone is vulnerable, is it necessary to
compare the applicant to some other group of people and, if so, who?
2. In assessing vulnerability, can a local housing authority have regard to the
support and assistance that an applicant would receive from his household if
he were homeless?
3. What is the effect of the public sector equality duty under s149 of the
Equality Act 2010 on determinations of priority need under the Housing Act
1996?
Issue 1(a): Is vulnerability a comparative concept?
It can be said that anyone who is homeless is vulnerable; in s189 in the word
“vulnerable” must contemplate homeless people who would be significantly more
vulnerable than many other persons in the same position.1 Vulnerability therefore is
a relative concept and has to be assessed comparatively.
Issue 1(b): To whom should the applicant be compared?
The applicant has to be compared with an ordinary person if made homeless, rather
than some notional ordinary homeless person.2 The alternative might be to permit a
conclusion that, as there is nothing out of the ordinary in homeless persons suffering
1
2
Paragraphs 51 and 53
Paragraph 58.
mental health problems, an applicant could not be said to be significantly more
vulnerable than such persons, even if he were at a disadvantage when compared
with the population at large.
Issue 2: Should the local authority have regard to support which is available to the
applicant?
The statute creates a perverse disincentive to praiseworthy behaviour. If the
applicant resides with his family, who refuse to provide support thereby rendering
him vulnerable, the applicant is in priority need and entitled to be rehoused along
with the unhelpful family members. If instead they were to help the applicant so that
he would not be vulnerable, he would not have a priority need and neither he nor
they would be rehoused.
The purpose of the Act is not to reward the virtuous, but to deal with a practical
problem. The distasteful results do not justify a judicially created exception. 3 The
availability of support is no different to the availability of medication which alleviates
the effects of a physical or mental condition. The local authority should consider the
services and support which would be available to the applicant if he were homeless,
provided they are satisfied that the third party will provide the support on a
predictable and consistent basis.4 If they are satisfied such support will be provided,
then they should consider the position on that basis, rather than simply assuming
that with such support the applicant will not be vulnerable. There will be cases
where, no matter the level of support, an applicant will remain vulnerable.5
Issue 3: The Equality Act 2010, section 149
The local authority’s public sector equality duty is complementary to its duties under
Part VII. It requires a reviewing officer to focus very sharply on (i) whether the
applicant is under a disability, (ii) the extent of such disability, (iii) the likely effect of
the disability, when taken together with any other features, on the applicant if and
when homeless, and (iv) whether the applicant is vulnerable as a result. There may
be cases where the duty adds nothing to the determination of vulnerability. It can be
possible for a reviewing officer to comply with the equality duty, even if he was not
aware that the duty was engaged.6
3
Paragraphs 66-68
Paragraph 65.
5
Paragraphs 69-71
6
Paragraph 78-79
4
Some additional points
Decision makers should avoid expressions which have been derived from earlier
case-law such as “street homelessness” or “fend for yourself”. Using such terms may
supplant the statutory language, which provides the correct test to be applied.7
Appeals should not succeed in every case where a decision letter has applied the
wrong comparator or made a wrong legal assumption. However the appeal in Mr
Kanu’s case was allowed as the Court considered that he had a “pretty strong case”
for arguing he was vulnerable and it was “quite conceivable” the decision would
have gone the other way had the correct test been applied.8
Conversely in Mr Johnson’s case the application of the wrong test was irrelevant,
because the reviewing officer determined that he was not suffering from depression
anyway. 9
Lord Neuberger gave a clear indication that Mr Hotak’s appeal would have been
successful had it been advanced on the same basis as Mr Kanu’s and not restricted to
Issue 2 as the parties had agreed. Mr Hotak has applied for the Court to reconsider
his case on that basis. Southwark have been asked to make further submissions on
that application.10 Lady Hale’s dissenting judgment describes this position as a
“triumph of form over substance” and would have allowed his appeal.11
Neil Wylie
KCH Garden Square Barristers
14th May 2015
7
Paragraphs 40-42
Paragraph 81
9
Paragraph 84
10
Paragraph 87
11
Paragraph 102
8