Housing Solicitors

Despite efforts to make the vulnerability criteria clearer, the courts still struggle with uncertainty when dealing with and deciding on this criteria. The interpretation of the terms and the fulfilment of the criteria are frequently debated in court, highlighting the ongoing necessity for a comprehensive revision of the terms.

‘Vulnerability’ is one of the most disputed elements of ‘priority need’ under section 189(1)(c) of the Housing Act 1996. An individual experiencing homelessness must meet the criteria of a "priority need" to qualify for housing assistance.

According to this section, a person is considered to have a priority need if:

1. They have dependent children living with them (including children expected to live with them), or


2. They or someone in their household is pregnant, or


3. They are vulnerable due to old age, mental illness, disability, or other special reason, or


4. They are homeless or threatened with homelessness as a result of an emergency, such as flood or fire.

A move towards inconsistency in the Courts

There is no statutory definition of "vulnerable" to date and therefore defining that concept has been left to the courts to grapple with.

Following the Supreme Court's decision in Hotak (Appellant) v London Borough of Southwark, Lord Neuberger developed and sets out that a homeless applicant is ‘vulnerable’ if he/she was “significantly more vulnerable” than an ordinary person if made homeless.

Despite this clarification, problems immediately arise because the judgment in Hotak does not provide any further explanation as to what “significantly” actually means for these purposes. HHJ Luba KC suggests it is a word with several possible meanings, which may change according to the context in which it is used.

As a whole, the courts have currently not adopted a consistent approach to the issue of vulnerability. Applicants and local authorities have continued to present the courts with different positions as to the issue. Clearly, applicants and local authorities will be litigating the consequences of Hotak’s judgment for a long time yet.

Potential Reforms

Abolition of priority need

The absence of a priority need test may largely solve the problems with both the inconsistency of the court’s approach and the interpretation of the unclear wording with vulnerability. By scrapping priority need, it will remove the burden for local authorities and the Courts to discern whether an applicant satisfies the ‘vulnerability’ meaning.

A similar approach was adopted in Scotland where they planned a phased abolition of priority need. This resulted in the reduction of homelessness from 2010 to 2015. Academics suggest that by taking such action overcomes the disadvantages of discretionary responses by councils to applicants. Whilst this approach appears to be working in Scotland, implementing a similar reform may not achieve the same result in England because of the housing supply pressures, acute shortage of resources and stock. It is also likely to open the floodgates for applicants who are seeking homeless assistance and increase their legal entitlements

Nevertheless, it is important to note that the removal of priority need would also remove any subjectivity from the decision making process and may instead create a universal statutory safety net for vulnerable applicants.

New Test

A new vulnerability test could incorporate a wider and clearer standard of assessment, by changing the wording of the vulnerability test. Instead of the phrase ‘significantly more vulnerable’, the test could be drafted using a phrase such as ‘more better off’ and include categories of vulnerability to create a more transparent measure for courts to decide whether an individual is vulnerable or not.

The use of a new phrase and specific categories of vulnerability will likely ensure that there is a more consistent approach adopted by the Courts when considering the measure of vulnerability and not focus on different interpretations. By the same token, it also clarifies the vague wording of the current test which will not only simplify the vulnerability measure on what exactly a vulnerable person is but also widens the threshold for vulnerability by requiring local authorities to consider the defined categories of vulnerability.

Having specific categories may lead to legal confusion with regards to the number of further categories of ‘vulnerable’ groups that ‘should’ then be recognised and deciding why certain vulnerable groups should have priority need rather than others. Nonetheless, the problems with the present vulnerability test may be resolved by imposing a new standard of assessment with a move towards widening the vulnerability threshold.

Conclusion

Whilst arriving with good intentions, one must note that the inconsistency in case law and misinterpretation of the current test muddles the position as to the ambit of vulnerability. By abolishing the priority need requirement, it may remove the current inconsistency in the court’s approach to vulnerable applicants. Similarly, the introduction of a more objective test of vulnerability, would clarify the assessment of who is vulnerable and at the same likely to encourage the courts to adopt a more consistent approach.

About the Author

Amandeep Bains is a Trainee Solicitor in the Housing Department at Duncan Lewis Solicitors. Amandeep works under the supervision of Daljit Singh Shina and
Director Manjinder Kaur Atwal.

He deals with a range of housing law matters including homelessness, housing disrepair, possession proceedings, counter claims, claims for judicial review and unlawful evictions. Additionally, Amandeep has experience in advocacy and conducting hearings in front of local authority panels and decision makers for clients.

For advice or assistance on a housing matter, contact our housing team today on 033 3772 0409