Hotak (Appellant) v London Borough of Southwark (Respondent)
Kanu (Appellant) v London Borough of Southwark (Respondent)
Johnson (Appellant) v Solihull Metropolitan Borough Council (Respondent)
Lord Neuberger, President
Lady Hale, Deputy President
JUDGMENT GIVEN ON
Heard on 15, 16 and 17 December 2014
Paul Brown QC
(Instructed by Centre 70 Advice Centre)
Kelvin Rutledge QC
(Instructed by Southwark Legal Services)
Jan Luba QC
(Instructed by Quality Solicitors Evans Derry)
Kelvin Rutledge QC
(Instructed by Solihull Legal Services)
Helen Mountfield QC
(Instructed by Cambridge House Law Centre)
Ashley Underwood QC
(Instructed by Southwark Legal Services)
Karon Monaghan QC
(Instructed by Equality and Human Rights Commission)
|Intervener (Shelter and Crisis)
Bryan McGuire QC
(Instructed by Freshfields Bruchhaus Deringer LLP)
Deok Joo Rhee
(Instructed by Treasury Solicitors)
LORD NEUBERGER: (with whom Lord Clarke, Lord Wilson and Lord Hughes agree)
Part VII of the Housing Act 1996
"(a) a pregnant woman or a person with whom she resides or might reasonably be expected to reside;
(b) a person with whom dependent children reside or might reasonably be expected to reside;
(c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;
(d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster."
The Equality Act 2010
"The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage."
"A public authority must, in the exercise of its functions, have due regard to the need to -
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic [which by subsection (7) includes disability] and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to -
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities. "
The facts of the three appeals in summary
i) She should ask herself "whether [Mr Johnson], when homeless, would be less able to fend for [himself] than an ordinary homeless person so that injury or detriment to [him] would have resulted when a less vulnerable person would be able to cope without harmful effect", and explained that her conclusion was that he "would not be less able to fend for [himself] than an ordinary homeless person" for reasons she proceeded to give.
ii) She was "not satisfied that [Mr Johnson is] suffering from depression or had suffered from depression".
iii) She also "highlight[ed] that research from Homeless Link has shown that mental health problems and homelessness are closely linked both as a cause and as a result of homelessness", and after quoting some figures continued "[t]his clearly shows that the fact that [Mr Johnson is] suffering from depression does not necessarily mean that [he is] vulnerable". "Given that [he is] not receiving any treatment for depression, [she was] not satisfied that [he] suffer[ed] from a particular form of depression that would make [him] vulnerable".
iv) "Despite suffering from knee and back pain it has no significant impact upon [Mr Johnson]" and "[he] would be able to continue with treatment provided by [his] GP and/or physiotherapist".
v) So far as drug use is concerned, "[a]lthough [he is] taking heroin at present [he does] not appear to have suffered any irreversible secondary medical problems". The evidence shows that "[Mr Johnson has] the ability to remain abstinent from drugs [and] whilst it may be harder for [Mr Johnson] to remain off drugs while street homeless, nevertheless [he] can maintain the support that [he] currently ha[s] and would reasonably be able to remain off drugs", and "[e]ven if [he does] slip back into using drugs, this would not necessarily be anything unusual in relation to homeless people", as shown by a survey.
vi) She acknowledged that Mr Johnson had "been in and out of prison since the age of 16", but she was not satisfied either that he had been "instititutionalised", having been "out of prison for two years and managed [his] affairs", or that he would "suffer injury or detriment if [he was] street homeless".
vii) Finally, she "consider[ed] whether [his] circumstances taken as a whole [made him] vulnerable", and stated that his "ability to fend for [himself] is not significantly compromised", and that she was "satisfied that there is nothing that differentiates you from other homeless people".
i) "[T]he Council must ask itself whether the applicant, when street homeless, is less able to fend for himself/herself so that injury or detriment will result where a less vulnerable street homeless person would be able to cope without harmful effect."
ii) "[W]e do not believe [that under] section 189 an authority is required to make provisions for households who are comprised of adults in reasonable physical health."
iii) "[I]t is reasonable to expect a fit and healthy adult to attempt to house and support his brother whilst they are homeless together. In addition [Ezatullah Hotak] has confirmed that he currently looks after [his brother] and he would continue to do so if they were street homeless together."
iv) "We acknowledge that [Sifatullah Hotak] has learning difficulties and disabilities and it would be reasonable to assume that he may find difficulty in finding and maintaining accommodation. If on his own and street homeless [he] may also be at risk . However, we are satisfied that his brother is capable of providing him with continued housing and support if they were street homeless together".
v) "Even though we acknowledge that he has learning disabilities and difficulties, we are satisfied that Ezatullah [Hotak] would assist him if street homeless and his circumstances do not confer priority need "
i) While accepting that Mr Kanu may be "vulnerable", Ms Emmanuel "noted that [he] has a wife and adult son included on his homelessness application, who form members of his household and it has been confirmed during interviews with [Mr Kanu] and his wife that he relies upon both his wife and son to provide him with assistance needed for him to perform the tasks of daily living that he is unable to perform for himself".
ii) Ms Emmanuel was "not satisfied that if [Mr Kanu's] household was faced with street homelessness they would be at risk of injury or detriment greater than another ordinary street homeless person due to Mr Kanu's wife and son's ability to fend for the whole household, including [Mr Kanu]".
iii) She did "not believe that an authority is required to make provisions for households who are comprised of or include adults in reasonable physical health."
iv) Mr Kanu "has been able to continue any treatment even when he was threatened with homelessness, when he became homeless and during periods when he stated that his illness was severe enough to require him to visit hospital on an emergency basis".
v) Ms Emmanuel referred to the medical evidence that Mr Kanu had thoughts of self harming but had not done so, and said that she was "not satisfied that [he] would be more at risk of committing suicide than another ordinary homeless street person", and she also considered that Mrs Kanu "has already demonstrated an ability to prevent him from self harming".
vi) Mr Kanu "had not encountered any significant difficulties maintaining" his present accommodation and that he "has been actively seeking employment", and that he would "be able to fend for himself if street homeless".
vii) As to the haemorrhoids, Ms Emmanuel said that he was not being treated for them and they would not lead to problems.
viii) In respect of the hepatitis B and high blood pressure, the doctors had "prescribed medication and medical treatments and the information available shows that [Mr Kanu] with assistance from his family has been compliant with his treatments and [Ms Emmanuel was] satisfied that he could continue to do so if street homeless".
ix) The letter also stated that consideration had been given to the "Disability and Equality Act 2010" and that the "public sector equality duty informs the decision making process; however it does not override it".
The principal issues raised in these appeals
i) Does the assessment of whether an applicant is vulnerable for the purposes of section 189(1)(c) of the 1996 Act involve an exercise in comparability, and, if so, by reference to which group of people is vulnerability to be determined?
ii) When assessing vulnerability, is it permissible to take into account the support and assistance which would be provided by a member of his family or household to an applicant if he were homeless?
iii) What effect, if any, does the public sector equality duty under section 149 of the 2010 Act have on the determination of priority need under section 189 of the 1996 Act in the case of an applicant with a disability or any other protected characteristic?
Some points of significance
"[E]ven if it is right, as seems plausible enough even in the absence of statistics, that the incidence of suicide is higher among homeless people than in the remainder of the population, I am not sure how that is relevant to the question which the reviewing officer had to decide. It might show only that a disproportionate number of people with the kind of history or personality that renders them specially liable to attempt suicide tend to be made homeless. The fact that there might be disproportionately many such people in the homeless population would not in itself mean that they were any the less vulnerable within the meaning of section 189 (1)(c) - any more than it would if there were a disproportionately large number of homeless people suffering from severe mental illness. The question of who constitutes the 'ordinary homeless person' cannot be answered purely statistically."
Vulnerability: a comparative concept, but compared with what?
Vulnerability: the relevance of support from family members
"Even if the reviewing officer is satisfied that the support network would remain in place it may not, in a situation of homelessness, be sufficient to enable the applicant to fend for himself as would the average homeless person. For example, the old age or mental ill-health or physical disability of the applicant may be such that no amount of support will enable the applicant to cope with homelessness as would a robust and healthy homeless person."
The Equality Act 2010
Conclusions on these appeals
LADY HALE: (dissenting in part)
"The following have a priority need for accommodation - ... (c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside."
Yet we had reached the point where decision-makers were saying, of people who clearly had serious mental or physical disabilities, that "you are not vulnerable, because you are no more vulnerable than the usual run of street homeless people in our locality"; and further, that "if a person living with you, or who might reasonably be expected to live with you, is able and willing to look after you on the streets then you are not vulnerable". In my view, both of those propositions are wrong.
"Many vulnerable people are cared for in the community by their relatives or other good-hearted people with whom they live. If such a 'carer' should have the misfortune to become homeless then [section 189(1)(c)] gives him the status of priority need, and provided his homelessness was not intentional, he will qualify for an offer of accommodation which will enable him to continue to look after the vulnerable person."
"If the vulnerable person is alone with no existing carer, he may need special accommodation. ... If he is not alone but has an existing carer or family 'who might reasonably be expected to reside with him' then the accommodation must be available for their occupation also."