Hotak & Ors v London Borough of Southwark & Anor , United Kingdom Supreme Court, Judgment, Law, casemine.com

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Attorney(S)

Appellant (Hotak) Paul Brown QC Heather Emmerson (Instructed by Centre 70 Advice Centre)
Respondent Kelvin Rutledge QC Catherine Rowlands (Instructed by Southwark Legal Services)
Appellant (Johnson) Jan Luba QC Lindsay Johnson (Instructed by Quality Solicitors Evans Derry)
Respondent Kelvin Rutledge QC Catherine Rowlands (Instructed by Solihull Legal Services)
Appellant (Kanu) Helen Mountfield QC Zia Nabi (Instructed by Cambridge House Law Centre)
Respondent Ashley Underwood QC Catherine Rowlands (Instructed by Southwark Legal Services)
Intervener (EHRC) Karon Monaghan QC (Instructed by Equality and Human Rights Commission)
Intervener (Shelter and Crisis) Bryan McGuire QC Matt Hutchings Jennifer Oscroft (Instructed by Freshfields Bruchhaus Deringer LLP)
Intervener (SSCLG) Deok Joo Rhee Joseph Barrett (Instructed by Treasury Solicitors)

Judges

LADY HALE: (dissenting in part)

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Hotak & Ors v. London Borough of Southwark & Anor (Rev 1)

Smart Summary

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

Whether “vulnerability” in section 189(1)(c) must be determined comparatively, and if so, the correct comparator group.
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.
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

Precedent	Rule or Principle Cited For	Application by the Court
Lewisham LBC v Malcolm [2008] UKHL 43	Approach to disability discrimination under earlier legislation	Noted as reversed by Equality Act 2010 s 15
Runa Begum v Tower Hamlets LBC [2003] UKHL 5	Difficulties in evaluating vulnerability	Cited to illustrate complexity of section 189(1)(c)
R v Oldham MBC, ex p Garlick [1993] AC 509	Part III predecessor focused on “bricks and mortar,” not care	Used to confirm that vulnerability is judged in context of homelessness
R (M) v Slough BC [2008] UKHL 52	Separation of accommodation duties from care duties	Reinforces point that Part VII addresses housing, not social care
Osmani v Camden LBC [2004] EWCA Civ 1706	Summary of vulnerability principles	Approved save for resource-based comments now disapproved
Holmes-Moorhouse v Richmond LBC [2009] UKHL 7	Resource considerations in other Part VII contexts	Cited to show that resources do not affect the status decision
R v Waveney DC, ex p Bowers [1983] QB 238	Early formulation of “less able to fend for oneself”	Endorsed but clarified; circularity acknowledged
R v Camden LBC, ex p Pereira (1999) 31 HLR 317	“Ordinary homeless person” comparator	Accepted as requiring reassessment; comparator reset to “ordinary person if made homeless”
Morgan v Stirling Council [2006] CSOH 154	Relativity implicit in “vulnerable”	Cited in confirming need for comparative assessment
Tetteh v Kingston LBC [2004] EWCA Civ 1775	Local authority’s experiential comparator	Rejected; national ordinary person preferred
Ajilore v Hackney LBC [2014] EWCA Civ 1273	Limited value of statistical evidence	Used to caution against reliance on demographics
R v Hammersmith & Fulham LBC, ex p Fleck (1998) 30 HLR 679	Risk of arbitrary results using local homeless comparator	Supports rejection of localised benchmark
O’Rourke v Camden LBC [1998] AC 188	Public interest in allocation of scarce housing	Informs purposive reading of Part VII
Baker v Secretary of State [2008] EWCA Civ 141	Nature of public-sector equality duty	General guidance adopted
Pieretti v Enfield LBC [2010] EWCA Civ 1104	Equality duty applies to Part VII functions	Confirmed and followed
Bracking v Secretary of State [2013] EWCA Civ 1345	“Rigorous consideration” required under equality duty	Standard adopted for review scrutiny
Hurley & Moore v Secretary of State [2012] EWHC 201	Weight to be given to equality considerations	Cited in equality-duty discussion
Brown v Secretary of State [2008] EWHC 3158	Equality duty must be exercised “in substance, with rigour”	Quoted approvingly
Tower Hamlets LBC v Rikha Begum [2005] EWCA Civ 340	Fresh application following change in circumstances	Guidance applied to Appellant 3’s deteriorating health
R (N) v Lewisham LBC [2014] UKSC 62	Limits of implied Parliamentary endorsement of case-law	Used to dismiss argument that non-amendment ratified Pereira
Tower Hamlets LBC, ex p Ferdous Begum [1993] AC 509	Household members qualifying with vulnerable applicant	Discussed by dissent; majority found case distinguishable

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.