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England

Priority need of older and disabled people

A person has a priority need for homelessness assistance if they are vulnerable due to old age or because they are disabled.

This content applies to England

Priority need of vulnerable older people

A person has a priority need if they are vulnerable due to old age.[1] This includes an applicant who resides with or is reasonably expected to reside with someone who is vulnerable because of their age.[2]

The Homelessness Code of Guidance states that old age alone is not sufficient for the applicant to be deemed vulnerable. The local authority should consider whether the applicant's old age is a factor that makes them less able to manage the effects of homelessness than someone younger. Local authorities should not use a fixed age beyond which vulnerability is automatic; each case must be considered on an individual basis.[3]

Priority need of vulnerable disabled people

A person has a priority need if they are vulnerable due to mental illness, learning disability or physical disability.[4] This includes an applicant who resides with or is reasonably expected to reside with a disabled person who is vulnerable.[5]

When assessing vulnerability the Homelessness Code of Guidance recommends that, where relevant, local authorities should seek the opinion of and have regard to advice from medical professionals, social services, and other current providers of care and support.[6]

The Code suggests that authorities may consider:

  • the nature and extent of the illness or disability which may make the applicant vulnerable

  • the relationship between the illness or disability and the individual's housing difficulties

  • the relationship between the illness or disability and other factors such as drug or alcohol misuse, offending behaviour, challenging behaviours, age, and personality disorder[7]

Inquiring into vulnerability

The Supreme Court has clarified that:[8]

  • vulnerability concerns the provision of housing and means the applicant's vulnerability if they are not provided with accommodation, rather than general need for care and support under community care legislation

  • when determining vulnerability, all of the applicant's characteristics and difficulties must be considered cumulatively, rather than each individually

  • the public sector equality duty complements the duty under the homelessness legislation and specifically requires local authorities to look into whether an applicant's protected characteristic such as age makes them more vulnerable as a result

  • care and support from statutory bodies and/or family members available to the applicant can be taken into consideration by the authority when determining whether the applicant is or not vulnerable

In some cases, the courts have found that authorities have failed to make proper inquiries into vulnerability. In one case, despite a detailed review decision which referred to all of the medical evidence, a local authority had failed to evaluate how the applicant's medical condition (fainting) would be exacerbated in the event of street homelessness.[9] In another case, it was the risk of the applicant committing suicide that had been exacerbated.[10]

The Code of Guidance advises co-operation between the authority, social services and mental health agencies when assessing vulnerability due to mental health problems. It also states that people discharged from hospital following a period of treatment for mental illness are likely to be vulnerable.[11]

Use of medical advisers

Advisers should advise clients to seek medical opinions to obtain independent expert evidence of vulnerability and potentially serious harm.

The local authority must give clear reasons for preferring one medical opinion over another, particularly if the authority's own medical adviser has not examined the applicant, or lacks appropriate qualifications or expertise.

The Court of Appeal critical of the local authority's preference for the opinion of their own external medical adviser, who was a GP, despite expert evidence from the applicant's psychiatrists to the contrary. The Court gave guidance to local authorities on the use of medical advice and approved a more rigid approach to decision-making in cases where there is a serious risk to an applicant's health.[12]

Needs assessment from social services

In appropriate cases advisers may wish to request that the social services department carries out an assessment under the Care Act 2014. There may be a duty on social services to meet the care and support needs, which can include housing, under community care legislation.

The final decision on the question of vulnerability however rests with the housing authority.

Assessment conducted for a different purpose

Advisers should be wary of submitting medical assessments conducted for another purpose, for example for a benefit claim.

In one case the Court of Appeal held that a medical assessment that found that an applicant had a 'severe mental disability' did not apply for the purposes of the assessment of vulnerability because it had been conducted for an incapacity benefit claim. An assessment of eligibility for disability benefits was a different exercise to assessing vulnerability for the purposes of a homelessness application.[13]

People lacking mental capacity

Legislation in relation to mental capacity makes provisions that affect how accommodation and housing arrangements are made for people lacking mental capacity.

The Mental Capacity Act 2005 contains provisions relating to people who lack capacity in accordance with the guidelines in the Convention on the International Protection of Adults.

The Mental Capacity Regulations enable the Secretary of State to request that an independent mental incapacity advocate be available to represent a person who lacks capacity to agree to the outcome of an accommodation review or, in protection cases, to take protective action.[14]

The regulations also enable the National Health Service (NHS) or a local authority to request that an independent mental incapacity advocate represents an applicant, if this would benefit the applicant.

Household members who are disregarded

If the applicant is subject to immigration control, any household member who is a person from abroad who is ineligible for assistance is usually disregarded when determining whether the applicant has a priority need.[15]

For example, in an application made by a refugee, any ineligible household members would be disregarded when assessing whether they had a priority need.

If the applicant is not subject to immigration control any ineligible household members can be considered when assessing whether they have a priority need. If the main housing duty is owed there are special rules on how it can be discharged.

Last updated: 30 January 2023

Footnotes

  • [1]

    s.189(1)(c) Housing Act 1996; para 8.14 Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [2]

    para 8.15 Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [3]

    para 8.25 Homelessness Code of Guidance , MHCLG, Feb 2018.

  • [4]

    s.189(1)(c) Housing Act 1996; para 8.14 Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [5]

    para 8.15 Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [6]

    para 8.26 Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [7]

    on this point, see also Crossley v Westminster CC [2006] EWCA Civ 140; Simms v Islington LBC [2008] EWCA Civ 1083.

  • [8]

    Hotak v Southwark LBC : Kanu v Southwark LBC : Johnson v Solihull MBC [2015] UKSC 30.

  • [9]

    Mohammed v Islington LBC [2013] EWCA Civ 739.

  • [10]

    R (on the application of Hoyte) v Southwark LBC [2016] EWHC 1665 (Admin).

  • [11]

    para 8.27 Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [12]

    Guiste v Lambeth LBC [2019] EWCA Civ 1758; Shala v Birmingham CC [2007] EWCA Civ 624; see also R (on the application of Adow) v Newham LBC [2010] EWHC 951 (Admin).

  • [13]

    Mangion v Lewisham LBC [2008] EWCA Civ 1642.

  • [14]

    Mental Capacity Act (Independent Mental Capacity Advocates) (Expansion of Role) Regulations 2006 SI 2006/2883.

  • [15]

    s.185(4) Housing Act 1996.