Hotak & Ors v London Borough of Southwark & Anor

Factual and Procedural Background

These joined appeals concern three separate applicants who sought assistance from local housing authorities under Part VII of the Housing Act 1996. Each applicant alleged that he was “vulnerable” and therefore in priority need of accommodation pursuant to section 189(1)(c) of the 1996 Act.

• Appellant 1 v Local Authority A. Appellant 1, born in 1975, had extensive criminal convictions, heroin addiction, musculoskeletal pain, asthma and alleged mental-health problems. Local Authority A rejected two homelessness applications. A review (section 202) confirmed the decision; both the County Court and the Court of Appeal dismissed further appeals.
• Appellant 2 v Local Authority B. Appellant 2, an Afghan national with an IQ of 47, self-harming history and PTSD, lived with his brother. Local Authority B provided interim accommodation but decided he was not in priority need because his brother would support him if homeless. The review and subsequent appeals were dismissed.
• Appellant 3 v Local Authority B. Appellant 3, aged 48, suffered from back pain, hepatitis B, hypertension, haemorrhoids and psychotic symptoms. Despite medical advice that he was at risk of self-harm, Local Authority B concluded he lacked priority need, relying on support from his wife and adult son. The County Court allowed his appeal, but the Court of Appeal reinstated the authority’s decision.

Legal Issues Presented

1. Whether “vulnerability” in section 189(1)(c) must be determined comparatively, and if so, the correct comparator group.
2. Whether, when assessing vulnerability, a housing authority may take into account support that a family or household member would provide if the applicant became homeless.
3. The extent to which the public-sector equality duty under section 149 of the Equality Act 2010 affects the determination of priority need for applicants with a protected characteristic, particularly disability.

Arguments of the Parties

Appellants’ Arguments

• “Vulnerability” is an absolute concept; no comparator is required, or the correct benchmark is an ordinary housed person, not an “ordinary homeless person.”
• Support that might be provided by household members should not negate vulnerability; Parliament intended priority need to cover households containing a vulnerable member.
• The reviewing officers failed to discharge the equality duty; inadequate enquiry was made into each appellant’s disabilities and the potential impact of homelessness.

Respondent Authorities’ Arguments

• Consistent Court of Appeal authority requires comparison with the “ordinary homeless person.”
• An applicant who will, in fact, receive reliable support from a family member is not vulnerable; resources should be directed to those who lack such support.
• The reviews satisfied the equality duty; all relevant disabilities were identified and considered.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Comparator. “Vulnerable” is inherently relative. The correct comparator is an ordinary adult if rendered homeless, not the cohort of people actually homeless or street homeless. This interpretation avoids arbitrary local results and aligns with the language of section 189.

2. Family or Household Support. A contextual, practical enquiry is required. Reliable support that will in fact be provided to the applicant when homeless may be considered. However, authorities must:

• Base conclusions on evidence, not assumptions or moral expectations;
• Recognise that substantial support may still leave an applicant vulnerable;
• Ensure support is “consistent and predictable” before relying on it.

3. Public-Sector Equality Duty. The duty applies to all Part VII decisions. Reviewing officers must:

• Identify any protected characteristic (e.g., disability);
• Assess its extent and likely effect if the applicant becomes homeless;
• Integrate those findings into the vulnerability analysis with “rigour and an open mind.”

A failure here can invalidate an otherwise lawful review, although in Appellant 3’s case the Court found substantial compliance.

4. Application to Individual Appeals.

• Appellant 1: Review reference to wrong comparator and statistics held immaterial; medical and addiction evidence showed no heightened risk; appeal dismissed.
• Appellant 2: As parties agreed decision turned solely on family-support point (resolved against him), appeal dismissed, though the Court expressed “real disquiet” and invited the authority to reconsider.
• Appellant 3: Review used wrong comparator and misstated duty regarding healthy household members. Given his serious conditions, the Court could not be confident the same result would follow using the correct test; appeal allowed and decision quashed.

Holding and Implications

HELD: Appeal of Appellant 3 ALLOWED; appeals of Appellant 1 and Appellant 2 DISMISSED.

Implications: The Supreme Court clarifies that vulnerability is judged against an ordinary person if made homeless. Authorities may consider actual, reliable family support but must do so cautiously and evidence-based. The decision entrenches the Equality Act duty within homelessness assessments, requiring meticulous attention to disabilities. No new statutory rights are created, but local authorities nationwide must adjust review methodologies to the clarified standards.