1 York Law School Unintentionally Vulnerable? A Review of Case Law under Part VII Housing Act 1996 Jed Meers

2 01 02 03 York Law School Vulnerability in the Supreme CourtIntentionality in the Supreme Court Welfare Reform and Homelessness “These cases deal with the homeless persons legislation pertaining in England and Wales but can be considered authoritative having regard to the close similarity in language of the English legislation to that of the Scottish legislation.” Stirling Council [2016] CSOH 55 (para.14) Links with what’s kicking off elsewhere Kind of…

3 Vulnerability under s.189 Housing Act 1996 A Return to Purer Waters?York Law School Vulnerability under s.189 Housing Act 1996 A Return to Purer Waters? The Position Post Hotak/Kanu/Johnson

4 Hotak v London Borough of Southwark [2015] UKSC 30York Law School Hotak v London Borough of Southwark [2015] UKSC 30 Jan Luba QC argued that the “safest course when dealing with a statute is to drink from its pure waters” 189.— Priority need for accommodation 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; One of the most litigated of these is the ‘priority need’ requirement under s.189(1), which includes pregnant women, those with children, former members of the armed forces, former prisoners, those fleeing violence, and – at the centre of the Hotak appeals – those who are ‘vulnerable’ as a result of old age, mental illness, physical disability or ‘other special reason’.

5 York Law School Approach developed to form the test in R. v Camden LBC, ex p. Pereira (1999) 31 H.L.R. 317 (CA), 330: “Is the applicant, when homeless, less able to fend for himself than an ordinary homeless person so that injury or detriment to him will result when a less vulnerable man would be able to cope without harmful effects’?” Johnson (EWCA): the test concerns an “ordinary homeless person” who is already homeless – not somebody who is non-homeless who then becomes homeless. Tetteh (EWCA): the “ordinary homeless person” is a “necessarily imprecise” hypothetical construction which is largely left to the imagination of the local authority. Assumed that “a busy local housing authority will have a vast experience of the range of homeless persons” and are best placed to create the appropriate comparator.

6 Point of Comparison for Vulnerability Vulnerable ComparatorYork Law School Point of Comparison for Vulnerability Applicant Very Vulnerable Comparator

7 Ajilore v Hackney LBC [2014] EWCA Civ 1273York Law School Ajilore v Hackney LBC [2014] EWCA Civ 1273 Case of the determination of vulnerability under s.189 Housing Act 1996 Test is whether the applicant ‘when homeless, [would be] less able to fend for himself than an ordinary homeless person so that injury or detriment to him will result when a less vulnerable man would be able to cope without harmful effects’ (R. v Camden LBC Ex p. Pereira (1999) 31 H.L.R. 317 [para 329] per LJ Hobhouse Applicant in this case had: hepatitis B A history of class-A drug use Was suicidal (and had severe mental health problems)

8 Ajilore v Hackney LBC [2014] EWCA Civ 1273York Law School Ajilore v Hackney LBC [2014] EWCA Civ 1273 Local Authority officer found that he was not in priority need, in part due to his assertion that “it was not unusual for street homeless people to have thoughts of self-harm and suicide,” an assertion supported by a “report published in the British Medical Journal in 2005 [which] confirmed that homeless people do have higher self-harm incidents than the ordinary population.” Ajilore [22] per LJ Gloster

9 York Law School Ajilore v Hackney LBC [2014] EWCA Civ 1273

10 Ajilore [39] per LJ GlosterYork Law School Ajilore v Hackney LBC [2014] EWCA Civ 1273 “the statistics in the BMJ letter were misinterpreted by the reviewing officer…[but they were used to] back up the conclusions that he had drawn from his own knowledge of an ordinary street homeless person” Ajilore [39] per LJ Gloster

11 Hotak v London Borough of Southwark [2015] UKSC 30York Law School Hotak v London Borough of Southwark [2015] UKSC 30 Challenged the application of this test – three claimants: Mr Hotak: who suffered from significant learning difficulties and depression, was considered not to be in priority need by virtue of support he received from his brother. Mr Kanu: had severe physical and mental health problems, and was found not to be in priority need due to the support he received - and was likely to receive if homeless - from his wife and son. Mr Johnson: suffered from a heroin addiction in addition to other mental and physical health problems. He was found not to be less able to fend for himself than an ‘ordinary homeless person’ given the extent of drug use and poor mental health within that population.

12 Hotak v London Borough of Southwark [2015] UKSC 30York Law School Hotak v London Borough of Southwark [2015] UKSC 30 Lord Neuberger outlined the three key issues: Whether the assessment of vulnerability requires an exercise in comparability, and if so, to whom Whether support from others can be taken into account when assessing vulnerability What role, if any, does the Public Sector Equality Duty under the s.149 Equality Act 2010 play three claimants - Jan Luba QC tried to argue that it could assessed simplicitor, which led to Lady Hale asking him if she was tall!

13 Hotak v London Borough of Southwark [2015] UKSC 30York Law School Hotak v London Borough of Southwark [2015] UKSC 30 i) An exercise in comparability? Supreme Court clearly held that ‘vulnerability’ under s.189(1)(c) necessitates some exercise of comparability The adjective carries ‘a necessary implication of relativity’ (para.51) This is particularly so given the intention of the legislation to assess vulnerability in the context of homelessness, since everybody would suffer harm as a result of being homeless (para.93 The issue is who would be significantly more at risk of harm by virtue of a vulnerability than others in the same position (para.51).

14 Hotak v London Borough of Southwark [2015] UKSC 30York Law School Hotak v London Borough of Southwark [2015] UKSC 30 i) Who should they be compared to? Court dispensed with the 'ordinary homeless person' comparator, which was considered to be against the original intentions of the legislation and be likely to lead to ‘arbitrary and unpredictable outcomes’ (para.56) The Pereira approach was apt to create damaging local variation (para.55). Instead, the Court assessed that an ‘ordinary person who is in need of accommodation’ (para.59) was the appropriate comparator.

15 New test is for s.189(1)(c) is therefore:York Law School Hotak v London Borough of Southwark [2015] UKSC 30 i) Who should they be compared to? New test is for s.189(1)(c) is therefore: “Whether the applicant would be, when homeless, significantly more at risk of harm than an ordinary person in need of accommodation (para.52)” Court was clear that this ‘ordinary person’ is: “Robust and healthy” (para.71) To be assessed without reference to the resources available to the Local Authority (para.39) Cannot be formed with the “very dangerous” use of statistics (para.43).

16 Hotak v London Borough of Southwark [2015] UKSC 30York Law School Hotak v London Borough of Southwark [2015] UKSC 30 ii) Take support of third parties into account? Majority of the Court considered that this was a relevant factor which flows from the ‘contextual and practical’ nature of the question (para.62) Important caveat that such support would – if it were to mitigate a finding of priority need status – have to be provided on a ‘consistent and predictable basis’ (para.65). On this issue, Lady Hale dissented, suggesting that it is only ‘right and proper’ to take into account statutory services available to the applicant, not those provided charitably or by family members (para.94).

17 Hotak v London Borough of Southwark [2015] UKSC 30York Law School Hotak v London Borough of Southwark [2015] UKSC 30 iii) Role of the Public Sector Equality Duty? Court ruled that it is a ‘complementary’ duty, requiring the reviewing officer to ‘focus very sharply’ on: Whether the applicant has a protected characteristic under Chapter 1 of the 2010 Act The extent of this (for instance, of their disability) The likely effect of the protected characteristic in the broader context of the applicant’s position if they were to be made homeless Whether this results in them being ‘vulnerable’ (para.78). Some form of structured and substantial approach – even if not explicitly addressing the PSED - is required, and this in turn may extend the scope of inquiry demanded of reviewing officers in certain circumstances (para.77).

18 Hotak v London Borough of Southwark [2015] UKSC 30York Law School Hotak v London Borough of Southwark [2015] UKSC 30 Strengthening of obligations to those with disabilities? The complementary PSED requirement to ‘remove disadvantage’ and to create an equal opportunity to ‘enjoy good health’, appears to strengthen obligations towards those with disabilities (I think) The findings of fact inherent in the awarding of Disability Living Allowance (or Personal Independence Payments) would prima facie render the applicant vulnerable for the purposes of s.189(1)(c). Being unable to walk outdoors ‘without guidance or supervision from another person most of the time’ (s.73(1)(d) SSCBA 1992) Being unable to prepare a simple meal unassisted (s.72(1)(a)(ii) SSCBA 1992)) Would appear to indicate that such an applicant, when homeless, would be significantly more at risk of harm than a “robust and healthy” (para.71) ordinary person in need of accommodation (para.52)?

19 Hotak v London Borough of Southwark [2015] UKSC 30York Law School Hotak v London Borough of Southwark [2015] UKSC 30 Who on earth is the comparator then? Use of statistics to construct a comparator is heavily criticised by the Court as a ‘very dangerous exercise’ (para.42), Lead judgment keen to ‘emphasise the primacy of the statutory words’ (para.59). Inevitably leads to the question of what characteristics – if any - such a comparator possesses, and how ‘significantly more at risk of harm’ should be interpreted with reference to them (para.51). Could be a far lower/higher bar, depending on how this is defined. “Significantly” carries a lot of weight

20 Hotak v London Borough of Southwark [2015] UKSC 30York Law School Hotak v London Borough of Southwark [2015] UKSC 30 “Whether the applicant would be, when homeless, significantly more at risk of harm than an ordinary person in need of accommodation (para.52)” What is meant by “significantly more”? Has to be explained to the applicant if an adverse decision is reached (i.e. why you are not “significantly more vulnerable”) Just application of general principle that the law shouldn’t be concerned with mere trivialities? Or is it something more substantial? A separate test even?

21 Hotak v London Borough of Southwark [2015] UKSC 30York Law School Hotak v London Borough of Southwark [2015] UKSC 30 HB v LB Haringey. Mayors & City of London Court, 17 September 2015 Not clear how the review officer had defined the word ‘significantly’ – where did it sit on a spectrum between “noticeable’” and “substantial” Mohammed v Southwark LBC. County Court at Central London, 18 December 2015 Decided that “significantly” should be construed by analogy with the word “substantial” in the Equality Act 2010 (i.e. “more than minor or trivial”, as in a “substantial adverse effect on normal day-to-day activities” s.6(1)) Butt v London Borough of Hackney. County Court at Central London. 22 February 2016 HHJ Luba: Onus on the reviewing officer “to identify the sense in which he is using the term ‘significantly’”; Could mean “something more than trifling” through to “something of real importance” So, we don’t know…but LA reviewing officer has to at least account for their decision

22 “Ordinary Person” ComparatorYork Law School Any better? “Ordinary Person” Comparator “Significantly” Applicant

23 01 02 03 York Law School Vulnerability in the Supreme CourtIntentionality in the Supreme Court Welfare Reform and Homelessness Links with what’s kicking off elsewhere

24 Haile v Waltham Forest LBC [2015] UKSC 34York Law School Intentionality The Position Post Haile v Waltham Forest LBC [2015] UKSC 34

25 York Law School Defined in section 191(1) of the 1996 Act and arises if the applicant: "deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.” Depends on the answers to the following questions. Was the accommodation available to the applicant? Was it reasonable for the applicant to continue to occupy the accommodation? What was the conduct of the individual applicant ? (see: R. v. North Devon D.C., ex p. Lewis [1981] 1 W.L.R. 328) Was there a deliberate act or omission? Effectively a determination of homelessness Our focus here

26 York Law School This requires examination of the “chain of causation” between the deliberate act or omission and the current homelessness: (R. v. Brent L.B.C., ex p Awua [1996] AC 55, HL) “…objective test of whether the applicant's ceasing to occupy his accommodation would reasonably have been regarded at the time as a likely result of his deliberate conduct” (R. v Hounslow LBC Ex p. R (1997) 29 H.L.R. 939) In deciding that an applicant is intentionally homeless a local authority must be identify a deliberate act or omission and be satisfied that it was “reasonably likely” that this was the cause of the applicant’s current homelessness.

27 York Law School R. v Hounslow LBC Ex p. R (1997) 29 H.L.R. 939“…objective test of whether the applicant's ceasing to occupy his accommodation would reasonably have been regarded at the time as a likely result of his deliberate conduct” Commits Crime (7 Year Sentence) Gives up his tenancy Presents as homeless - Prison was not “settled accommodation” which can break the chain, an assured shorthold tenancy for 6 months can be, but is a question of fact and degree (Knight v Vale Royal BC [2003] EWCA Civ 1258)

28 Din v Wandsworth LBC [1983] 1 AC 657York Law School Superseding Events Din v Wandsworth LBC [1983] 1 AC 657 The decision makes clear that: The material date for determining whether somebody was intentionally homeless was the date at which they had left the accommodation Hypothetical circumstances which may have resulted in homelessness at a later date, are irrelevant to the decision There has to be, however, a continuing “chain of causation” between the deliberate act or omission (under s.191) and the applicant’s homelessness at the time of the local authority’s enquiry (under s.193)

29 Put in interim accommodation while enquiries undertakenYork Law School Superseding Events (2) Haile v Waltham Forest LBC [2015] UKSC 34 S.191 Determination: Did the deliberate act cause homelessness? S.193 Determination: When assessing the duty owed, is the applicant’s current homelessness caused by that intentional conduct? Local Authority concludes that the claimant is intentionally homeless, due to leaving the hostel, in which it was reasonable for her to occupy Applicant, who is pregnant, living in a hostel, leaves due to “bad smells” Stayed with friend for a while, then presents as homeless at the local authority while still pregnant Put in interim accommodation while enquiries undertaken

30 Haile v Waltham Forest LBC [2015] UKSC 34York Law School Superseding Events Haile v Waltham Forest LBC [2015] UKSC 34 The Supreme Court considered whether: “But for” the appellant’s conduct, would she have been homeless at the time of her application In this case, the baby’s birth meant that she would be homeless when her case was considered, whether or not she had left the hostel due to “bad smells.” In other words, it could not be said that “if she had not done that deliberate act she would not have become homeless.” (para.67, per Lord Reed) So we have a “but for” gloss on the causality between the two periods (s.191 bit, and the s.193 bit): “But for” the applicant’s deliberate act, would they still be homeless at the time of the review decision? If no, the causal link remains, if yes, one can argue it is broken and they are no longer intentionally homeless…

31 BUT, this actual vs hypothetical divide is not clear-cutYork Law School Why does it matter? There are potentially a huge range of circumstances where an actual superseding event (i.e. not a hypothetical one as in Din v Wandsworth LBC [1983] 1 AC 657) could occur between the deliberate act and the s.193 decision BUT, this actual vs hypothetical divide is not clear-cut

32 Breaks terms of the tenancy, and is evicted, sleeps on relative’s sofaYork Law School Some scenarios... Household affected by the Benefit Cap is awarded a short-term DHP award to make up the housing benefit shortfall Breaks terms of the tenancy, and is evicted, sleeps on relative’s sofa Presents as homeless Discretionary Housing Payment would have ended, meaning the accommodation would have been completely unaffordable

33 York Law School Some scenarios...Presents as homeless after sleeping rough Mature student lives in University Accommodation Is evicted for dealing drugs in the block and ASB End of the academic year, would have to leave the Uni Room anyway Clearly quite a lot of wriggle-room presented in the case law here – further appeals are going to be necessary to flesh out this causal link between s.191-s.193

34 01 02 03 York Law School Vulnerability in the Supreme CourtIntentionality in the Supreme Court Welfare Reform and Homelessness Links with what’s kicking off elsewhere

35 Welfare Reform and HomelessnessYork Law School Welfare Reform and Homelessness Implications of the “Cut-and-Devolve” Approach

36 York Law School - A cut-and-devolve approach can serve to muddy these waters a bit R. (on the application of Carmichael) v Secretary of State for Work and Pensions [2016] UKSC 58

37 York Law School R. (on the application of Carmichael) v Secretary of State for Work and Pensions [2016] UKSC 58 Decision in a Nut-Shell – Parallel discretionary provision for the bulk of claimants here to stay Familiar Article 8/A1P1 leveraging Article 14 discrimination When considering “choices about welfare systems” [Carmichael, 32] with a discriminatory effect, the assessment of justification should take the form of the high-bar “manifestly without reasonable foundation” test – as policy decisions on economic and social matters” [Carmichael, 32], and in particular “State benefits” [Carmichael,29], the Court is deferential The Court determined that the “Secretary of State’s decision to structure the scheme as he did was reasonable” [41] Drew a distinction between the Rutherford/Carmichael claimants, and the rest of the broader class of claimants

38 Huge Overlapping ImpactYork Law School Huge Overlapping Impact An insufficient/ill-determined DHP Budget

39 York Law School “On whether people will be treated as intentionally homeless if they are evicted as a result of rent arrears caused by the cap, again, it is for local authorities to make decisions on individual homelessness applications, as they do now. Under the statutory legislation, if the only reason for a person's homelessness is a reduction in benefit that is outside their control, they should not be considered intentionally homeless by their local authority” Failure to apply for DHP or to renew it? Failure to meet conditions attached to its payment (for instance, reducing non-essential expenditure – McDonalds/Starbucks) Status of partial awards?

40 Parallel Assessments of AffordabilityYork Law School Parallel Assessments of Affordability Assessment of Affordability for the purposes of a Discretionary Housing Payment Application Re-assessment for the purposes of an intentionality assessment? Not affordable Affordable DHP award made (?) No DHP award (?)

41 Lack of clarity in how this same information is processed?York Law School Lack of clarity in how this same information is processed? Hambleton Salford

42 Lack of clarity in how this same information is processed?York Law School Lack of clarity in how this same information is processed? Hambleton District Council Salford Council

43 Lack of clarity in how this same information is processed?York Law School Lack of clarity in how this same information is processed? Harrow Council Eden District Council

44 York Law School

45 York Law School

46 Some Brief ConclusionsYork Law School Some Brief Conclusions

47 Some Brief ConclusionsYork Law School Some Brief Conclusions Things are a bit of mess/unclear – both Supreme Court decisions on Vulnerability and Intentionality leave a lot of wriggle room Expect further Court of Appeal activity on both, though probably not in the near future There are some worrying overlaps with the “cut-and-devolve” approach to welfare reform, that is likely to compound problems already experienced elsewhere in the system