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People with mental illness or physical disabilities

This content applies to England

This page looks at the priority need category of vulnerability due to mental illness, learning disability, or physical disability.

Introduction

A person may be vulnerable due to mental illness, learning disability, or physical disability. Someone with whom such a person resides or might reasonably be expected to reside could also be considered to be in priority need and could therefore be the applicant if necessary.[1]

Assessing vulnerability

When assessing vulnerability the Homelessness Code of Guidance recommends that, where relevant, local authorities should seek the assistance of and have regard to advice from:[2]

  • medical professionals
  • social services
  • other current providers of care and support.

In an appropriate case advisers may wish to request that the social services department carries out an assessment under the Care Act 2014. For more information, see Care Act 2014: access to housing with care and support. There may be a duty on social services to meet the care and support needs (which can include housing) of people in this category under the Care Act 2014. See the section People in need of care and support for detailed information.

The final decision on the question of vulnerability rests with the housing authority. The Code suggests that authorities may consider the:[3]

  • nature and extent of the illness or disability which may make the applicant vulnerable, and
  • relationship between the illness or disability and the individual's housing difficulties
  • relationship between the illness or disability and other factors such as drug or alcohol misuse, offending behaviour, challenging behaviours, age, and personality disorder.[4]

Case law on vulnerability

The Supreme Court has clarified that:[5]

  • vulnerability for the purposes of s.189(1)(c) of the Housing Act 1996 concerns the provision of housing and means the applicant's vulnerability if s/he is not provided with accommodation, more than general need for 'care and support' under community care legislation (see the section People in need of care and support for more about community care provisions for older people)
  • 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 disability makes her/him more vulnerable as a result (see the Equality law section for more information about protected characteristics and the public sector equality duty)
  • 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.

Inquiring into vulnerability

Inquiries about applicants with disabilities or mental health problems are not always properly made. 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 (ie fainting) would be exacerbated in the event of street homelessness.[6] In another case, it was the risk of the applicant committing suicide that had been exacerbated.[7] In some cases local authorities have been found guilty of maladministration by the Local Government Ombudsman, and ordered to pay compensation for failing to make inquiries, issue decisions or provide temporary accommodation while making further inquiries.[8]

Those advising applicants with mental health problems should be alert to this problem and ensure that proper homelessness inquiries are made and written decisions issued. 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.[9]

Use of medical advisers

The local authority may well be guided substantially by medical advice that it receives from its own adviser(s) or from external advisers on contract. There is nothing intrinsically wrong with this practice but:

  • adverse information should generally be put to the applicant for comment
  • cogent reasons for preferring one medical opinion over another will need to be given, particularly if the local authority's medical adviser has not examined the applicant and if s/he lacks appropriate qualifications/expertise.

The Court of Appeal was 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.[10] The Court of Appeal gave guidance to local authorities on the use of medical adviser and clearly sanctioned a more stringent approach to decision-making in cases where there is a serious risk to an applicant's health. On a practical level, advisers should advise clients to seek medical opinions to obtain independent expert evidence of vulnerability and potentially serious harm.

Assessment conducted for a different purpose

Advisers should be wary of submitting medical assessments conducted for another purpose, eg for a benefit claim. In one case the Court of Appeal held that a medical assessment that found the applicant to have 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.[11]

Legislation in relation to mental capacity

Legislation in relation to mental capacity makes a number of provisions that will 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.[12]

The regulations also enable the National Health Service or a local authority to request that an independent mental incapacity advocate represents an applicant, if they consider that such assistance would be of benefit to the applicant.

See Housing for people with mental health needs for more information.

Restricted cases

Where the applicant has a household member who may vulnerable and who is a person from abroad, the vulnerable person may be disregarded in a priority need assessment, or the applicant may be owed a 'restricted' duty. The decision will depend on the immigration status of the applicant and the household member. See the page Who has a priority need for further information.

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; paras 8.13 and 8.14 Homelessness Code of Guidance, MHCLG, Feb 2018.

[2] para 8.25 Homelessness Code of Guidance, MHCLG, Feb 2018.

[3] para 8.25 Homelessness Code of Guidance, MHCLG, Feb 2018.

[4] Crossley v Westminster CC [2006] EWCA Civ 140; Simms v Islington LBC [2008] EWCA Civ 1083.

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

[6] Mohammed v Islington LBC [2013] EWCA Civ 739.

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

[8] 90/C/2893 Kingston Upon Hull BC, 90/A/2032 Ealing LBC.

[9] para 8.26 Homelessness Code of Guidance, MHCLG, Feb 2018.

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

[11] Mangion v Lewisham LBC [2008] EWCA Civ 1642.

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

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