Priority need of vulnerable people and people living with them

A local authority must secure interim accommodation if it has reason to believe a homeless applicant might be eligible and have a priority need. It only has a long term housing duty if it is satisfied that they have a priority need.

Some people automatically have a priority need, for example if they have children or are pregnant. A person can also have a priority need if they are vulnerable. Their vulnerability must be due to one of a list of factors listed in the legislation. These include old age, being a disabled person, and time spent in care or the armed forces. In some cases, someone who normally resides with a vulnerable person has a priority need.

When assessing vulnerability, the local authority must consider if the person is significantly more vulnerable than an ordinary person would be if they were made homeless.

A person has a priority need if they, or someone they either live with or are reasonable expected to live with, are vulnerable because of:[1]

• old age

• a mental health condition

• being a disabled person

• some other special reason

A person might be vulnerable for one of these reasons or a combination of them.

Old age

There is no fixed age above which a person is considered vulnerable.[2] The local authority must look at the person’s individual circumstances and how their age would affect them if they became homeless.

Find out more about vulnerability because of old age.

Mental health, physical disability and learning disability

A person might be vulnerable as due to a mental health condition, being physically disabled or as a result of a learning disability. Local authorities should take into account any support or treatment the person receives.

A person is disabled if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Some medical conditions are specified as being a disability, including cancer and multiple sclerosis. There are some exclusions to the definition of disability, including addiction to alcohol or other substances.[3] Find out more about vulnerability because of being disabled.

Physical illness that is not a disability is not specifically mentioned in the legislation. Vulnerability due to physical illness could be argued to come under the category of another special reason.

Other special reasons

A person can have a priority need if they are vulnerable for any other special reason not specified in the legislation. This is not restricted to the person’s physical or mental characteristics and can include the person’s circumstances. For example a person with a need for support who has no family or friends they can depend on.[4]

A person could be vulnerable because of a combination of factors which taken alone might not necessarily lead to a decision that they are vulnerable. For example, a combination of drug and alcohol problems, common mental health problems, a history of sleeping rough, having no previous experience of managing a tenancy.[5]

The Homelessness Code of Guidance provides examples of groups of people who might be vulnerable for other special reasons.

Young people

Some young people are automatically in priority need, including 16 and 17 year olds not owed a duty by social services. Many other young people could be vulnerable if homeless, particularly those without any support from families, friends or institutions. Young people on the streets without adequate financial resources might be vulnerable if they are at risk of abuse or exploitation.[6]

People fleeing harassment

Severe harassment might fall short of actual violence or threats of violence. Local authorities should consider whether someone experiencing psychological or emotional harassment or damage to property is vulnerable as a result.[7]

Victims of trafficking and modern slavery

A person who is a victim of trafficking or modern slavery might be vulnerable as a result.[8] Modern slavery can take many different forms, including sexual exploitation, domestic servitude, labour exploitation and criminal exploitation.[9] Local authorities should refer any individual they suspect to be a victim of modern slavery to the National Referral Mechanism.[10]

Terminal illness

The Code states that someone who might reasonably be expected to die of a progressive illness within the next 6 months, or receives palliative care almost certainly has a priority need.[11]

Refugees and people who have fled conflict

Local authorities should consider whether someone with refugee status or who has been displaced by conflict might be vulnerable as a result. This might include looking at the impact on their physical or mental health, any history of trauma, and whether the person has any support in the UK.[12]

For example, the Court of Appeal held that homeless asylum seekers with no income or capital, no right to receive benefits, no family or friends, and no opportunity to work were in priority need for some other special reason.[13]

Rough sleepers

Local authorities should consider whether someone who is street homeless might be vulnerable as a result. Research shows there is an increased incidence of physical frailty in long-term rough sleepers and that this can occur at a significantly younger age than the general population.[14] Medical professionals can assess frailty to produce a frailty score.

Priority need due to the coronavirus pandemic

The Homelessness code of guidance states that local authorities should consider the vulnerability of applicants with underlying health conditions in the context of the Covid-19 pandemic.[15] The Code refers to the list of conditions in the Joint Committee on Vaccination and Immunisation: advice on priority groups for COVID-19 vaccination, 30 December 2020. Local authorities are also advised to consider the vulnerability of people with a history of rough sleeping in the context of the pandemic.[16] This might be particularly relevant in areas where there is a high number of cases of Covid-19.

Regulations in force before 24 February 2022 provided a definition of who might be more vulnerable to Covid-19 that could be relevant when assessing priority need. These regulations have now been revoked.[17]

A person has a priority need if they are vulnerable because they:[18]

• were in the regular armed forces

• have spent time in prison

• are over 21 and spent time in care

• left their accommodation because of violence or threats of violence

People who have been in the armed forces

A person might have a priority need if they are vulnerable because they served in the armed forces. This could be because they became institutionalised, or because of the mental and physical impact of their service. Local authorities might need to consider how long the person was in the armed forces, how much time has passed since they left and the type of service.

Find out more about priority need of veterans.

People who have been in prison

A person who has spent time in custody might be institutionalised and struggle to manage on release. They might also lack support networks that other people might have. The local authority should consider:[19]

• the length of time spent in prison or custody

• whether they are receiving probation service supervision

• the time that has passed since the person was released from prison or custody

• whether they have been able to find and keep accommodation since being released

• whether they have any existing support networks, such as family or friends

Find out more about priority need of people who have been in prison.

People who have spent time in care

Someone under 21 might be automatically in priority need if they spent time in care when they were 16 or 17 years old.

Where someone over 21 has spent time in care, the local authority needs to inquire into the person's childhood history to establish whether they are vulnerable as a result. Vulnerability might arise due to a traumatic period of time in care, or relate to a lack of support networks as an adult.

Find out more about priority need of people who have been in care.

Leaving accommodation due to violence

A person has a priority need if they are vulnerable as a result of ceasing to occupy accommodation because of violence or threats of violence which are likely to be carried out. They must have actually left the accommodation for this to apply. This might include where someone would be at ongoing risk of physical harm from another person if they were homeless, for example in cases of gang violence.

Find out more about vulnerability due to violence.

Someone who is homeless because of domestic abuse automatically has a priority need.

A local authority must determine whether the person would be significantly more vulnerable than an ordinary person would be if they became homeless.[20] The definition of vulnerability is not set out in the legislation. The test has been developed through case law.

The local authority must look at the person's circumstances as a whole and compare them with those of a hypothetical ordinary person if they became homeless. The local authority must consider if:[21]

• the person would suffer or be at risk of suffering harm or detriment when homeless that a less vulnerable person would not

• that harm or detriment would make a noticeable difference to their ability to deal with the effects of homelessness

Vulnerability means the person’s vulnerability if they are not provided with accommodation. It does not mean their need of care and support generally. The local authority should assess if someone is vulnerable on the assumption that the person is or would become homeless, not on their ability to manage while they are still housed.[22]

Comparison with an ordinary person

The vulnerability assessment requires the authority to compare the person with another hypothetical person who does not share the person's characteristics of vulnerability. The comparison is with the 'ordinary person if made homeless' and not a hypothetical or actual 'ordinary homeless person'. People who are already homeless or sleeping rough might already be more vulnerable than the wider population. The person should be compared with an ordinary person who is in need of accommodation.[23]

The comparison should not be specific to the local authority's area. Local authorities should avoid using statistical data to determine the ordinary person's characteristics. The Supreme Court confirmed that the question of who the comparison is with cannot be answered purely statistically.[24]

The local authority does not always have to set out the characteristics of the ordinary person the comparison is with when providing its decision.[25]

Significantly more vulnerable

The Court of Appeal has held that the test of being 'significantly more vulnerable' is a qualitative test. The authority must decide if the person would be at risk of suffering harm or detriment which the ordinary person would not. This harm or detriment would then have to make a noticeable difference to the person's ability to deal with the consequences of homelessness. A person is vulnerable if they would be at risk of more harm in a significant way.[26]

There is not a quantitative threshold of vulnerability that a person must reach to have a priority need. A local authority acted unlawfully when it decided that a homeless applicant was not in priority need despite being 'more vulnerable than ordinarily vulnerable'. The authority was using a quantitative approach, as it based its decision on an assessment of how much more vulnerable the person needed to be to meet the threshold for priority need.[27]

Support from other people

The local authority can take into account care and support that the person would receive from other people if they were homeless. For example, from family members or medical services. It does not matter if this support is provided based on a legal obligation or voluntarily. The authority must be satisfied that support will be provided on a consistent and predictable basis.[28]

The fact that even substantial support is available does not necessarily mean the person is not vulnerable. Where someone requires a high level of support, the authority should consider if what would be required if the person was homeless would go beyond what could reasonably be expected of those currently helping them. In some cases, a person's age or health might mean that no amount of support would enable them to cope with homelessness in the same way that less vulnerable person could.[29]

Whether someone is vulnerable is an evaluative judgment for the local authority. The authority has a duty to make necessary inquiries and take into account any relevant evidence when making its decision. For example, medical evidence, psychiatric reports, or welfare reports from social workers or advisers.[30]

It is for the local authority to decide the scope of the necessary inquiries when assessing vulnerability. The local authority cannot take account of housing demand or the resources available to it.[31] A local authority's failure to make inquiries can be challenged if the decision can be shown to be irrational. For example, if no reasonable local authority would have neglected to make those inquiries.[32]

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 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 authority should also have sought details of the asylum case, the psychiatric assessment and treatment he had previously received, and why his tenancy had been terminated.[33]

Medical evidence

The local authority should consider and properly evaluate all the evidence submitted by the applicant. It is for the authority itself to make the decision on vulnerability.

The local authority must have regard for any medical evidence the person provides.[34] A local authority can use also its own medical evidence. The Code suggests that where there is doubt an authority could seek a clinical opinion. The authority must still respond to any points made by the applicant in their submissions.

Medical evidence can help identify if a person has a mental or physical illness or disability. It is for the authority to decide if the person is vulnerable as a result. Evidence provided by the person or by the authority's own medical advisers can influence that decision, but the authority is not bound by it. Where there is competing evidence, the local authority must evaluate it and reach its decision.[35]

Local authorities should not assume that different types of medical evidence are equivalent, for example when considering a report by a psychiatric specialist, and the authority's own medical adviser who has not examined the person.[36] A local authority was found to have made an error at law when it 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. The authority's failure to explain why it made that choice was a breach of principles of rationality and fair decision-making. [37]

The local authority must have due regard to the need to eliminate unlawful discrimination and advance equality of opportunities. This is called the public sector equality duty. The duty applies to all public functions exercised by a local authority and complements the authority's duties under a homeless application.

At each stage of the decision-making process about a person's vulnerability, the authority must consider the equality duty. It must focus sharply on:[38]

• whether the person has a relevant protected characteristic

• the extent of that protected characteristic

• its likely effect, when taken together with any other features, on the person if homeless

• whether the person is vulnerable as a result

When carrying out a review, the local authority must do more than just assert it has taken the public sector equality duty into account. The decision letter when read as a whole must demonstrate sufficient recognition of the duty.[39]

Some vulnerable people cannot make a homeless application in their own right because they lack mental capacity. A person lacks mental capacity if an impairment or dysfunction of their mind or brain means they are unable to make a decision for themselves.

A local authority cannot accept a homeless application from someone who lacks mental capacity. It is for the local authority to decide whether an applicant has capacity to make the homeless application or not. A person must be assumed to have capacity unless it is established otherwise.

Someone else who lives with the person who lacks capacity could make a homeless application on behalf of the household. For example, a family member or carer. A person who resides or could reasonably be expected to reside with a person who is vulnerable as a result of mental illness has a priority need.

Find out more about homeless applicants who lack mental capacity.

If there is no one else who can make a homeless application, social services might have a duty to meet care and support needs. This can include providing accommodation where this is necessary to meet those needs.

If a local authority is satisfied that the person does not have a priority need it must provide the decision in writing. The letter must include the reasons for the decision.[40] The reasons given must be proper and adequate, and deal with the substantial points that have been raised.[41] The authority must explain why it has rejected an applicant's argument[42] A decision letter is not sufficient if it just lists the categories of priority need and states that the person does not fall within any of them.[43]

Wording of vulnerability decisions

The vulnerability test is not a form of words stated in the law. It is not crucial exactly how the decision letter is worded, provided the authority can show it has carried out the required assessment and carefully considered all the relevant circumstances.

Where a decision letter stated the correct test of vulnerability, and proceeded to list a number of reasons why the authority found an applicant not to be vulnerable, the Court of Appeal held that the reviewing officer's failure to tie each of those reasons to the correct comparator did not mean that they had applied the wrong test.[44]

Local authorities should avoid phrases like 'street homeless' and 'fend for oneself' in decision letters. These phrases were sometimes used to reflect a previous interpretation of the vulnerability test that the Supreme Court found to be incorrect. These terms are not used in the legislation and can be interpreted in different ways. The law does not distinguish street homelessness as a special category of homelessness. Some vulnerable people could still be able to fend for themselves, while some non-vulnerable people could not.[45]

If the local authority refuses to provide interim accommodation where it has reason to believe someone has a priority need, this can be challenged by judicial review in the High Court. The person should get advice and representation from a solicitor. Challenging a local authority through judicial review is in scope for legal aid.

Where a local authority decides after carrying out inquiries that it is satisfied that the person does not have a priority need, they can request an internal review of that decision. The request for a review must be made within 21 days of being notified of the decision. Challenging a local authority through an internal review is in scope for legal aid.

Find out more about how to support a vulnerable person with the Shelter Legal guide on Advising on vulnerability and priority need.

This guide includes:

• checklists

• practical advice

• template letters

• case law details