October 23rd, 2019 by James Goudie KC

Guiste v Lambeth LBC (2019) EWCA Civ 1758 was a housing (further) appeal which, as so often, raised the question whether the appellant had a priority need for homelessness accommodation on the basis that he was vulnerable, within the meaning of Section 189(1)(c) of the Housing Act 1996 (“HA 1996”). Henderson LJ, with whom Rose LJ and Theis J agreed, said, at paragraph 45, that the legal principles which apply in deciding whether an appellant is vulnerable, within the meaning of that provision, are mainly to be derived from the two leading cases of Hotak (in the Supreme Court) and  Panayiotou (in the Court of Appeal).  Henderson LJ stated, at paragraph 46, that the following principles may be derived from Hotak:-

 “(a)    Section 189(1)(c) is concerned with an applicant’s vulnerability if he is homeless. It directs an enquiry as to his situation if he remains or becomes a person without accommodation: see the judgment of Lord Neuberger of Abbotsbury PSC at [37].

(b)       Vulnerability requires a comparative assessment: see [51]. A person is vulnerable for the purposes of the section if he is significantly more vulnerable than the ordinary person who is in need of accommodation as a result of being rendered homeless: see [53], [55], [58] and [59].

(c)       The question of whether an applicant is vulnerable involves considering his particular characteristics and situation when homeless in the round: [38].

(d)       The assessment of an applicant’s vulnerability is a contextual and practical assessment of his physical and mental ability if he is rendered homeless, and in carrying out this assessment the local authority must disregard the impact on its own resources and its burden of homeless people: [39] and [62].

(e)       An applicant who would otherwise be vulnerable might not be vulnerable if, when homeless, he would be provided with services, support and care by a third party: see [61] and [64].

(f)       A housing authority may only take third party support into account where it is satisfied that, as a matter of fact, the third party will provide such support on a consistent and predictable basis: [65].

Henderson LJ continued, at paragraph 47:-

“At the most basic level, therefore, Hotak tells us that the test of vulnerability is a comparative one; that the comparison has to examine the position if the applicant is made homeless; and that the comparison which must be made is between the applicant (if homeless) and the ordinary person who is in need of accommodation as a result of being made homeless. If the result of this comparison is that the applicant would be “significantly more vulnerable than ordinarily vulnerable” as a result of being made homeless, then the test is satisfied and the applicant has a priority need.”

 Henderson LJ said, at paragraph 48, that Panayiotou provides important clarification of what is meant by the concept of being “significantly more vulnerable than ordinarily vulnerable”; and continued, at paragraph 52:-

“… one of the questions that a reviewing officer needs to consider is whether, when making the comparison required by Hotak, the harm or detriment caused to the applicant as a consequence of his mental or physical ill health (or other characteristic falling within the scope of section 189(1)(c)) would make a noticeable difference to his ability to deal with the consequences of homelessness.”

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