Any individual can apply to a council and make a homeless application. In the circumstances set out below, the Local Authority should undertake enquiries into that person’s application and is then entitled to consider what assistance it will provide to the applicant.
Under Section 184 Housing Act 1996, a Local Authority must make enquiries where it has reason to believe that a person is homeless or threatened with homelessness and if they are satisfied that the applicant is eligible for assistance. Once such reason to believe arises, the Local Authority will then carry out an assessment of their needs. They must consider whether they are satisfied that an individual is eligible for assistance, homeless or threatened with homelessness, not intentionally homeless and in priority need. If so, assistance will be provided.
The question that we are going to consider here is “What is a priority need and who has this?”
Section 189 of the Housing Act 1996 defines categories of people who are in priority need as follows:
- Pregnant women, or a household with a pregnant woman
- Households with depended children
- All 16 – 17 years olds
- All 18 – 20 years old whilst under the age of 18 were looked after children
- Any person who loses their accommodation as a result of an emergency
- And finally, vulnerable persons
A vulnerable person is classified as someone who is vulnerable as a result of old age, mental illness or disability, having been in care and aged over 21, having been a member of the armed forces, having served a custodial sentence, or having had to leave accommodation because of violence or threats of violence or some other special reason.
The Case Law on Priority Need – Vulnerability
Under the 1998 High Court ruling in Pereira (1998), Local Authorities were required to assess whether a homeless applicant would be more vulnerable than the ‘ordinary homeless person’ in establishing whether or not an applicant was in priority need.
This led to a number of problematic decisions as Local Authorities would often define the “ordinary homeless person” as one who had a number of issues including, for example, substance misuse issues or mental health issues. Therefore it was very difficult for an applicant to show that they were more vulnerable than a person with these issues.
Almost 20 years later, the Supreme Court Judgment in Hotak v Southwark LBC (2015), changed the legal comparator from the ‘ordinary homeless person’ to the ‘ordinary person if made homeless’. The decision also confirmed the correct approach to be whether the applicant is ‘significantly more vulnerable than ordinarily vulnerable’ and overall confirmed a test that should be easier to satisfy.
The Hotak test was then clarified in Panayiotou v Waltham Forest LBC (2017), where the that the question was “whether an applicant would suffer or be at risk of suffering ‘harm or detriment which the ordinary person would not suffer or be at risk of suffering, such that the harm or detriment would make a noticeable difference to his ability to deal with the consequences of homelessness’.
However, the trend since Hotak, unfortunately, has been for some Local Authorities to constrict and misapply the test, by concluding that ab applicant is not vulnerable for a number of reasons including the fact that they are in receipt of medication or engaging and compliant with treatment, have managed to display resourcefulness in successfully seeking legal advice, or have not been clinically diagnosed, or appear to be able to successfully manage their own affairs. This is clearly an incorrect and unlawful application of the test.
Despite these clarified definitions of ‘vulnerability’, ‘significantly’ and the legal comparator that have been evolved through case law, the approach of the Local Authorities is a concerning portrayal of how some conditions are minimised and that an arbitrary set of criteria are used to define vulnerability rather than considering the severity of each individual’s circumstances.
What can be done?
It is often possible to challenge a Local Authorities decision as to whether or not a person is in priority need. Where a negative decision is reached, applicants will have 21 days in which to request a review of that decision. Housing solicitors frequently assist clients with arguing on review that a decision regarding vulnerability is wrong as the incorrect test has been used. This will often result in the Local Authority overturning their decision and applicants who receive priority need decisions that they feel are unfair should seek advice on whether they have grounds to challenge this. Such advice should be sought quickly give the strict 21 day time limit.