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Hotak v London Borough of Southwark [2013] EWCA Civ 515

DATE: 15 May 2013

The Court of Appeal’s decision in Hotak v. London Borough of Southwark [2013] EWCA Civ 515 provides important guidance on the matters to be taken into account when deciding whether a homeless person is “vulnerable” for the purposes of s. 189(1)(c) of the Homelessness Act 1996.

It was common ground that the appellant in Hotak was unintentionally homeless and eligible for assistance.  The issue for the Court was whether he also had a priority need because he was ““vulnerable by reason of old age, mental illness or handicap or physical disability or other special reason”.  The appellant had learning difficulties which affected his ability to cope with daily living, had self-harmed and suffered symptoms of depression and post-traumatic stress disorder, and relied on his brother for daily personal support, personal hygiene and organising health appointments, meals and finances.  Having regard to these factors the local housing authority had concluded that, had the appellant been living alone, he would have been “vulnerable” within the meaning of s. 189(1)(c).  However, because he received support from his brother, and because there was no reason to believe this would not continue if the pair became “street homeless”, he was not vulnerable and did not therefore have a priority need.

The issue for the Court of Appeal was whether, when determining whether an applicant is vulnerable, the authority is entitled to have regard to support and assistance derived from third parties, or whether that assessment had to be made by reference to the applicant in isolation.  Pitchford LJ, with whom Richards and Moore-Bick LJJ agreed, concluded that the reviewing officer was not required to make an assessment of vulnerability in isolation from the applicant’s known personal circumstances, which could include whether the applicant received support from another party.  If the evidence demonstrated that, by reason of such personal support, the applicant would be no less able to fend for himself than someone without a qualifying disability, the applicant would not have demonstrated that (s)he was “vulnerable as a result of mental...handicap...or other special reason”.  References in previous cases such as Pereira and Osmani  to whether the applicant could “fend for himself” did not mean that other assistance should not be taken into account.

Paul Brown QC appeared for the Appellant.

A copy of the judgment is available here