Out with Pereira. In with Hotak. Was it all worth it?

It has been almost 8 months since the Supreme Court Judgment in Hotak ([2015] UKSC 30) and others that redefined the test for establishing vulnerability and thus Priority need. Now that the dust has settled somewhat it is worth taking a step back and considering whether the new test is more benevolent than its predecessor, as many in May 2015 perceived it would be and just how well local authorities are grappling with it.

Pereira – the old meaning of ‘vulnerability’ and the change following Hotak

Under the 1998 High Court ruling in Pereira ([1998] EWCA Civ 863), the former test which was applied for almost 16 years until last May, required local authorities to look at whether the homeless applicant would be more vulnerable than an ordinary homeless person. This was argued by many as being an impossible test to meet, meaning many vulnerable homeless applicants were being turned away by local authorities.

The Supreme Court judgment in Hotak and others last May heralded an overhaul of the vulnerability test which was warmly welcomed by many including ourselves. On the face of it, the test seemed to be promising and a far easier test to satisfy.

The new test changed the legal comparator from the “ordinary homeless person” to the “ordinary person if made homeless”. The comparator is “healthy” and “robust” and devoid of the fragilities that the homeless applicant would be suffering from. In view of this, it would appear straightforward to argue vulnerability when for example an applicant suffering from multiple mental health disorders is compared with a healthy and robust individual, right? Wrong.

The snag – what does ‘significantly more vulnerable’ mean?

Lord Neuberger confirmed in Hotak that the approach in applying s193(1)(c) Housing Act 1996 as “significantly more vulnerable than ordinarily vulnerable” as being correct. It is this element of the test that has proved cumbersome in the months following the judgment. What is “significantly more vulnerable”? Given that the comparator has been substituted and is now “healthy” and “robust” will this not be sufficient in proving that the applicant is “significantly more vulnerable than ordinarily vulnerable”? It is clear that further guidance from the courts will be required in the year ahead to shed light on the former question. Turning to the latter question, if the approach of the local authorities is anything to go by; the answer is not in the affirmative.

By way of example in the recent reported case of R (on the Application of Omar) v Wandsworth LBC, (2015) Ms O faced insurmountable difficulty in convincing the High Court that the local authority had erred in not exercising its discretion under s188 to accommodate her pending review of the s184 decision that she was not in priority need. Ms O was a single woman with no dependants who suffered from asthma. She had recently been hospitalised following a severe asthma attack which she contended was triggered by stress. The High Court held that the local authority’s refusal was correct as she was receiving standard medication to manage her asthma.

‘Not vulnerable enough’

Since May 2015, I have come across a number of non priority s184 decisions that appear to use terminology that is synonymous with this approach, namely that the applicant is in receipt of “standard medication” or that the applicant is engaging with their current medical regime, or even that the applicant is not vulnerable as they are not under psychiatric care and suffering from mental ailments, such as psychosis that affect his/her cognition. Clearly this is not the test for assessing vulnerability, nor is there any mention of these prerequisites in the Homelessness Code of Guidance (2006). The approach of local authorities post Hotak demonstrates a resolve to constrict the test in any which way possible which is both frustrating and worrying.

I recently went to an s204 appeal on a non priority decision that was upheld at review. It was a great opportunity to see how the courts attempt to tackle the issue. In this particular instance, the homeless applicant (“Mr A”) was a single man in his 50s suffering from an enlarged prostate, severe depression and suicidal ideation. At review stage, a whole host of medical evidence was adduced to the local authority opining that Mr A was indeed more vulnerable than his legal comparator and his behaviour was symptomatic of severe depression bordering suicidal ideation. Mr A had been refused interim accommodation pursuant to s188. During this time, after a period of street homelessness for a few days he secured accommodation at a homeless refuge.

At appeal, the local authority sought to deflect from the medical evidence and sought to rely (albeit a bit heavily) on Paragraph 62 of the Hotak judgment wherein Lord Neuberger stated that in assessing vulnerability “it is not so much of a clinical assessment of his mental and physical ability, it is a contextual and practical assessment of his mental and physical ability.” The local authority contended that Mr A’s mindfulness and resourcefulness in securing accommodation at the refuge and securing legal assistance negated any arguments raised in support of his vulnerability. The judge agreed with the local authority and the appeal was refused.

Hotak in 2016

This was a disappointing decision, but if one thing is for sure there will be no dearth in forthcoming s204 appeals forcing the courts to provide further guidance on precisely how Hotak is to be interpreted and applied in conjunction with s189(1)(c). A point that the local authority raised in this appeal was that the applicant had secured legal assistance and that inter alia this was indicative that he was not vulnerable and thereby in priority need. Of late, I have come across a few s202 reviews that have raised this argument. This will be one to look out for. The suggestion that an applicant with legal representation cannot be vulnerable in accordance with the prescribed test is sure to ruffle a few feathers. This is arguably a form of gate keeping and there are sure to be irrationality and unreasonableness challenges in this regard.

What initially seemed like a clear-cut and dream ruling on vulnerability in May 2015 has practically proved to be a fallacy. It will be interesting to see how the 8 month old test evolves in 2016. Until then let the tussle between housing lawyers and local authorities continue.