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Defining vulnerability and categories of vulnerable people

This content applies to England

Categories of vulnerable people and how vulnerability is defined.

Categories

An applicant is in priority need within the meaning of s.189(1)(c) Housing Act 1996 if her/his vulnerability results from one or more of the following:[1]

  • old age
  • mental illness or learning disability
  • physical disability
  • having been in care and aged over 21
  • having been in the armed forces
  • having been in custody
  • fleeing violence or threats of violence
  • some other special reason.

Vulnerability may arise from one of the categories specified or from a combination of causes.[2]

Determining vulnerability

The term vulnerability is not defined in the legislation.

The Homelessness Code of Guidance states that: 'It is a matter of evaluative judgement whether the applicant’s circumstances make them vulnerable. When determining whether an applicant in any of the categories set out in paragraph 8.13 is vulnerable, the housing authority should determine whether, if homeless, the applicant would be significantly more vulnerable than an ordinary person would be if they became homeless. The assessment must be a qualitative composite one taking into account all of the relevant facts and circumstances, and involves a consideration of the impact of homelessness on the applicant when compared to an ordinary person if made homeless. The housing authority should consider whether the applicant would suffer or be at risk of suffering harm or detriment which the ordinary person would not suffer or be at risk of suffering, such that the harm or detriment would make a noticeable difference to their ability to deal with the consequences of homelessness.[3]

This is not the statutory vulnerability test but this part of the Code of Guidance takes account of the Supreme Court decision which established that the correct comparator is the 'ordinary person if made homeless' not the 'ordinary homeless person' who would already suffer from a mixture of problems (see 'The comparator' below). It has been held that decision letters issued using the wrong comparator will be invalid unless the same result would have been reached had the correct comparator been used.[4]

The courts have provided further judicial guidance on the test to be applied when determining vulnerability within this context, but this should not be applied 'as if it were a statutory formulation'.[5]

The vulnerability test

The test involves comparing the ability of the applicant to deal with the effects of being homeless with the ability of a hypothetical ordinary person to deal in the same situation. In order to be found vulnerable, the applicant must be:[6]

  • significantly more vulnerable than an ordinary person in need of accommodation, and
  • likely to suffer greater harm in the same situation.

Vulnerability in this context is a homeless applicant's vulnerability if s/he is not provided with accommodation, not her/his 'need of care and support' generally.

The vulnerability assessment is a composite decision that involves not only the issue of whether an applicant can find and keep accommodation, but also whether s/he would suffer injury or detriment when homeless in circumstances where a less vulnerable person would not. All the particular difficulties of the applicant should be carefully considered together.[7]

Decision letters

As the test is not a statutory formulation, it is not crucial how the local authority words its decision letters, provided that it can show that it has carried out the required composite assessment by addressing the correct questions and carefully considering all the relevant circumstances of the applicant.[8]

However, expressions such as 'street homeless' and 'fend for oneself' should be avoided in documents that are intended to have a legal effect, because they are colloquialisms subject to different interpretations by different people, which are not used in the legislation. The wording used in the Housing Act 1996 should be preferred: the Act does not distinguish street homelessness as a special category of homelessness; and some vulnerable people could still be able to fend for themselves, while some non-vulnerable people could not.[9]

The comparator

The comparator is the 'ordinary person if made homeless' and not a hypothetical or actual 'ordinary homeless person'; the Supreme Court held that 'an applicant should be compared with an ordinary person who is in need of accommodation'.[10]

It is for the local authority to consider what features the 'ordinary person in need of accommodation' would have, but this should be a national, rather than local, notion; a local authority does not always have to set out the characteristics of the 'ordinary person' comparator.[11]

Using statistical data to determine who the comparator is and whether an applicant is vulnerable is dangerous and should be avoided - 'the question of who is the correct comparator cannot be answered purely statistically'.[12]

Significantly more vulnerable

The Court of Appeal has held that the test of being 'significantly more vulnerable' is to be read as applying a qualitative, not a quantitative test:  'the question to be asked is whether, when compared to an ordinary person if made homeless, the applicant, in consequence of a characteristic within section 189(1)(c), would suffer or be at risk of suffering harm or detriment which the ordinary person would not suffer or be at risk of suffering such that the harm or detriment would make a noticeable difference to his ability to deal with the consequences of homelessness'.[13]

Where a local authority decided that a homeless applicant was not in priority need despite being  'more vulnerable than ordinarily vulnerable', this was unlawful because the authority was using a quantitative approach, ie basing its decision on an assessment of how much more vulnerable the applicant was required to be in order to meet the threshold for priority need.[14]

Applying the vulnerability test

For the purpose of applying the vulnerability test, a local housing authority should assess vulnerability on the assumption that an applicant has become or would become homeless, not on the applicant's ability to manage while s/he is still housed: the authority must assess the homeless applicant's vulnerability if s/he is not provided with accommodation.[15]

Advisers should ensure that local authorities know why a particular homeless person has greater difficulty in dealing with all the potential hazards of homelessness than other ordinary persons in need of accommodation. It is also important to show the effect that any characteristic may have on a person's ability to obtain and retain accommodation. Expert evidence should be obtained if relevant.

Where there are a number of factors that may mean an applicant is significantly more vulnerable, the authority must consider all of those factors together, as there will be cases where the composite assessment makes a material difference to the outcome.[16]

Inquiries into vulnerability

It is for the local authority to decide the scope of the necessary inquiries when assessing vulnerability, but all its duties under the homelessness legislation should not be influenced or affected by the availability, or lack of, its resources.[17] Challenges to a local authority's failure to make inquiries should fail unless the decision can be shown to be irrational (ie no reasonable local authority would have neglected to make those inquiries).[18]

As part of its inquiries into vulnerability, a local authority should consider and properly evaluate all the evidence submitted by the applicant. However, it is for the authority itself to make the decision on vulnerability. The authority has a duty to make necessary inquiries and take into account any other relevant evidence (for example, welfare reports from social workers or advisers), in addition to any medical opinions before it, to satisfy itself on the question of the applicant's vulnerability.[19]

The authority can take into account support from third parties, for example from family members or medical services, which s/he would receive were s/he to become homeless, and it does not matter if such support is provided pursuant to a legal obligation or voluntarily, as long as the authority is satisfied that it will be provided on a consistent and predictable basis. However, some authorities' belief that they do not have a duty towards vulnerable applicants whose household includes non-vulnerable members is 'plainly wrong'.[20]

Where a local authority rejected medical evidence provided in support of a homeless applicant, choosing instead to rely on the evidence of its own medical advisers when making its review decision, its failure to explain why it made that choice constituted an error of law because it breached principles of rationality and fair decision-making. In addition, where a local authority uses its own medical evidence, it must still respond to any points made by the applicant in her/his submissions.[21] See When can an appeal be used for more information on challenging decisions.

In a case where mental health issues arose from the historic mistreatment of a former asylum seeker, there was an expectation that the local authority's inquiries into his vulnerability would involve consulting with his current and previous medical advisers and the relevant mental health services, seeking a psychiatric report, and possibly a detailed inquiry into his pre-homelessness way of life. The inquiries should also seek details of the applicant's asylum case, of the psychiatric assessment and treatment he had previously received, and of why his tenancy had been terminated.[22]

Public sector equality duty

The Supreme Court held that the weight and extent of the public sector equality duty (PSED) are highly fact-sensitive and depend from the circumstances of each case. The duty to have due regard to the need to eliminate unlawful discrimination and advance equality of opportunities under section 149 of the Equality Act 2010 applies to all public functions exercised by a local authority under the homelessness legislation and complements the authority's duties under the Housing Act 1996.

At each stage of the decision-making process about an applicant's vulnerability, the authority must consider the equality duty and 'sharply focus' on:[23]

  • whether the applicant has a relevant protected characteristic
  • its extent
  • its likely effect, when taken together with any other features, on the applicant if and when homeless, and
  • whether the applicant is vulnerable as a result.

Reviewing officers are required to do more that just assert they have taken into consideration the PSED; in order not to be found in breach of the duty they need to demonstrate sufficient recognition of the matters above in their decision letters, when read as a whole.[24]

For more information about the equality duty, see Public sector equality duty.

Applications made before 3 April 2018

The current Homelessness Code of Guidance was introduced on 3 April 2018 and the references on this page are to this Code. For applications made before this date, the recommendations of the 2006 Code of Guidance should apply.

[1] s.189(1)(c) Housing Act 1996; Homelessness (Priority Need for Accommodation) (England) Order 2002 SI 2002/2051; Hotak v Southwark LBC : Kanu v Southwark LBC : Johnson v Solihull MBC [2015] UKSC 30; para 8.13 Homelessness Code of Guidance , MHCLG, Feb 2018.

[2] R v Bath CC ex p Sangernamo (1984) 17 HLR 94, QBD.

[3] para 8.15 Homelessness Code of Guidance , MHCLG, Feb 2018.

[4] Farharri Rose Hemley v Croydon LBC [2017] unreported, but transcript available at Lawtel

[5] Ajilore v Hackney LBC [2014] EWCA Civ 1273.

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

[7] Hotak v Southwark LBC : Kanu v Southwark LBC : Johnson v Solihull MBC [2015] UKSC 30; paras 8.15 and 8.39 Homelessness Code of Guidance , MHCLG, Feb 2018.

[8] Bellouti v Wandsworth LBC [2005] EWCA Civ 602; Rother DC v Freeman-Roach [2018] EWCA Civ 368.

[9] Hotak v Southwark LBC : Kanu v Southwark LBC : Johnson v Solihull MBC [2015] UKSC 30. See also Hemley v Croydon LBC [2017] unreported but transcript available at Lawtel

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

[11] Tetteh v Kingston upon Thames [2004] EWCA Civ 1775; Rother DC v Freeman-Roach [2018] EWCA Civ 368.

[12] Hotak v Southwark LBC : Kanu v Southwark LBC : Johnson v Solihull MBC [2015] UKSC 30; Ajilore v Hackney LBC [2014] EWCA Civ 1273.

[13] Panayiotou v Waltham Forest LBC : Smith v Haringey LBC [2017] EWCA 1624.

[14] para 70 Panayiotou v Waltham Forest LBC : Smith v Haringey LBC [2017] EWCA 1624.

[15] Hotak v Southwark LBC : Kanu v Southwark LBC : Johnson v Solihull MBC [2015] UKSC 30; Osmani v Camden LBC [2004] EWCA Civ 1706 ; paras 8.15 to 8.17 Homelessness Code of Guidance , MHCLG, Feb 2018.

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

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

[18] Cramp v Hastings BC : Phillips v Camden LBC [2005] EWCA Civ 1005.

[19] Guiste v Lambeth LBC [2019] EWCA Civ 1758; Wandsworth LBC v Allison [2008] EWCA Civ 354; R v Lambeth LBC ex p Carroll (1987) 20 HLR 142, QBD.

[20] Hotak v Southwark LBC : Kanu v Southwark LBC : Johnson v Solihull MBC [2015] UKSC 30; para 8.16 Homelessness Code of Guidance , MHCLG, Feb 2018.

[21] Guiste v Lambeth LBC [2019] EWCA Civ 1758.

[22] R (on the application of IA) v City of Westminster [2013] EWHC 1273 (Admin).

[23] Hotak v Southwark LBC : Kanu v Southwark LBC : Johnson v Solihull MBC [2015] UKSC 30; para 8.17 Homelessness Code of Guidance , MHCLG, Feb 2018.

[24] Hackney LBC v Haque [2017] EWCA Civ 4.

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