Priority need of people with disabilities
A person will have a priority need if they are vulnerable due to a physical or learning disability or mental illness.
- Priority need of people who are vulnerable due to a disability
- Case law on vulnerability and disability
- Inquiring into vulnerability
- Use of medical advisers
- Assessment conducted for a different purpose
- Legislation in relation to mental capacity
- Household members who are disregarded
- Applications made before 3 April 2018
Priority need of people who are vulnerable due to a disability
A person has a priority need if they or a person they reside with, or are reasonable expected to reside with, are vulnerable due to mental illness, learning disability or a physical disability.
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.
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.
The final decision on the question of vulnerability rests with the housing authority. The Code suggests that authorities may consider the:
nature and extent of the illness or disability which may make the applicant vulnerable
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
Case law on vulnerability and disability
The Supreme Court has clarified that:
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 they are not provided with accommodation, more 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 disability makes her/him 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
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 (fainting) would be exacerbated in the event of street homelessness. In another case, it was the risk of the applicant committing suicide that had been exacerbated. 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.
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.
Use of medical advisers
The local authority must give clear reasons for preferring one medical opinion over another, particularly if the authority's own medical adviser either:
has not examined the applicant
lacks appropriate qualifications or 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. 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, for example 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.
Legislation in relation to mental capacity
Legislation in relation to mental capacity makes a number of 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.
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 benefit the applicant.
Household members who are disregarded
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 depends on the immigration status of the applicant and the household member.
Applications made before 3 April 2018
The current Homelessness Code of Guidance was introduced on 3 April 2018 and the references here are to this Code. For applications made before this date, the recommendations of the 2006 Code of Guidance should apply.
Last updated: 17 March 2021
s.189(1)(c) Housing Act 1996; paras 8.13 and 8.14 Homelessness Code of Guidance, MHCLG, Feb 2018.
para 8.25 Homelessness Code of Guidance, MHCLG, Feb 2018.
para 8.25 Homelessness Code of Guidance, MHCLG, Feb 2018.
Crossley v Westminster CC  EWCA Civ 140; Simms v Islington LBC  EWCA Civ 1083.
Hotak v Southwark LBC : Kanu v Southwark LBC : Johnson v Solihull MBC  UKSC 30; para 8.15 Homelessness Code of Guidance, MHCLG, Feb 2018.
Mohammed v Islington LBC  EWCA Civ 739.
R (on the application of Hoyte) v Southwark LBC  EWHC 1665 (Admin).
90/C/2893 Kingston Upon Hull BC, 90/A/2032 Ealing LBC.
para 8.26 Homelessness Code of Guidance, MHCLG, Feb 2018.
Shala v Birmingham CC  EWCA Civ 624; Guiste v Lambeth LBC  EWCA Civ 1758; see also R (on the application of Adow) v Newham LBC  EWHC 951 (Admin).
Mangion v Lewisham LBC  EWCA Civ 1642.
Mental Capacity Act (Independent Mental Capacity Advocates) (Expansion of Role) Regulations 2006 SI 2006/2883.