Homelessness case law: Hotak comparator considered by High Court

In July 2015 Housing Rights reported on the seminal UK Supreme Court decision of Hotak and others (Appellants) v London Borough of Southwark and another (Respondents) [2015] UKSC 30.

The Hotak case involved three conjoined appeals and concerned the duty of local housing authorities towards homeless people who claim to be “vulnerable” and, as a consequence have a priority need for accommodation. Within its judgement the Supreme Court assessed two key issues, namely:

i. when determining whether or not someone is vulnerable, is it necessary to compare the applicant to some other group of people; and if so, to which group?

ii. whether it is permissible for a local authority to have regard to the support and assistance that an applicant would receive from his household or family if he were homeless?

In its findings, the Court determined that a comparator was necessary, and in a deviation from the previous established Pereira Test, established that the proper comparator should be “with an ordinary person if made homeless, not with an ordinary actual homeless person.”

Furthermore, the Court found that any services and support that would be available to a homeless applicant if they were homeless must be taken into account. 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 regular basis.

Hotak principles tested in English High Court

The issue of vulnerability has now been considered by the English High Court for the first time since the Hotak judgement in the case of R(On application of Omar) v Wandsworth LBC (2015) QBD (Admin), as recently reported by Nearly Legal.

In this case a young woman applied to Wandsworth LBC as homeless. However Wandsworth LBC found her not to be entitled to a housing duty under section 184 of the Housing Act 1996, as they found she was not vulnerable. Although the Housing Order 1996 does not apply in Northern Ireland, the Housing (NI) Order 1988, as amended by the Housing Amendment (Act ) 2010, mirrors these provisions, and as such this recent decision continues to have relevance within our jurisdiction.

The applicant requested a review of the negative decision and asked to be provided with temporary accommodation pending the review. A local authority has a power to accommodate applicants pending review of a homeless decision when an applicant may be regarded as in priority need.

However, Wandsworth LBC refused to provide temporary accommodation. The homeless applicant applied for a Judicial Review of that decision.

The applicant was a single, 27 year old woman with no dependent children. She was in part time employment and suffered from asthma. She had been recently hospitalised following a severe asthma attack.  She argued that she should be considered vulnerable for the purposes of establishing priority need because these acute asthma attacks were triggered by stress. The local authority relied on the fact that she had been prescribed medication for her health condition and as corollary found that she was not a vulnerable person in priority need.

High Court used new comparator test to establish whether applicant is vulnerable

When the matter was considered by the High Court it held that the local authority’s refusal to provide temporary accommodation was correct and lawful.  The Court considered the case based on the newly established comparator test of “an ordinary person if made homeless” and found that the decision by the local authority that the applicant would not be “significantly worse off” without accommodation than an ordinary person was correct.

The Court found that the asthma attacks suffered by the applicant did not support the contention that she was a vulnerable person as defined in housing legislation and by subsequent case law. The applicant was receiving standard medication to treat her asthma and the High Court  deemed that there was nothing unusual about her treatment.

The case is evidential of the fact that the recent Hotak judgment, in replacing the Pereira test, is not as wide or benevolent for homeless applicants as initially had been anticipated, or at least hoped.

It appears likely that there will be many forthcoming challenges to the finding of local authorities, which will be essential for the courts to provide further guidance as to how Hotak is to be interpreted in line with the legislation.