Hotak v Southwark London Borough Council; Kanu v Southwark London Borough Council; Johnson v Solihull Metropolitan Borough Council

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Wilson,Lord Hughes,Lady Hale,Lord Clarke,Lord Neuberger
Judgment Date13 May 2015
Neutral Citation[2015] UKSC 30
Date13 May 2015

[2015] UKSC 30

THE SUPREME COURT

Easter Term

On Appeal From: [2013] Ewca Civ 515, [2014] Ewca Civ 1085 and [2013] EWCA Civ 752

before

Lord Neuberger, President

Lady Hale, Deputy President

Lord Clarke

Lord Wilson

Lord Hughes

Hotak
(Appellant)
and
London Borough of Southwark
(Respondent)
Kanu
(Appellant)
and
London Borough of Southwark
(Respondent)
Johnson
(Appellant)
and
Solihull Metropolitan Borough Council
(Respondent)

Appellant (Hotak)

Paul Brown QC Heather Emmerson

(Instructed by Centre 70 Advice Centre)

Appellant (Johnson)

Jan Luba QC Lindsay Johnson

(Instructed by Quality Solicitors Evans Derry)

Appellant (Kanu)

Helen Mountfield QC Zia Nabi

(Instructed by Cambridge House Law Centre)

Respondent

Kelvin Rutledge QC Catherine Rowlands

(Instructed by Southwark Legal Services)

Respondent

Kelvin Rutledge QC Catherine Rowlands

(Instructed by Solihull Legal Services)

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)

Heard on 15, 16 and 17 December 2014

Lord Neuberger

( with whom Lord Clarke, Lord Wilson and Lord Hughes agree)

1

These three appeals raise a number of issues concerning the duty of local housing authorities towards homeless people who claim to be "vulnerable", and therefore to have "a priority need" for the provision of housing accommodation under Part VII of the Housing Act 1996. Those issues turn on the interpretation of the 1996 Act, but some of them also involve consideration of the Equality Act 2010.

Part VII of the Housing Act 1996
2

As its title indicates, Part VII of the 1996 Act is concerned with homelessness, and it imposes duties on local housing authorities to provide assistance and advice, or suitable accommodation, to those who are "homeless" or "threatened with homelessness".

3

By virtue of subsections (1)-(3) of section 175, a person is homeless if there is no accommodation (i) which is "available for his occupation", (ii) which he is entitled to occupy by virtue of an interest, by virtue of a court order, under a licence, a statute or "rule of law", (iii) to which he can secure entry or (in the case of mobile accommodation) which he can place and reside in, and (iv) which "it would be reasonable for him to continue to occupy".

4

Section 176 explains that accommodation is only to be treated as available for a person if it is also available for "any other person" who "normally resides", or who "might reasonably be expected to reside" with him. Section 177 contains examples of circumstances in which it would not be reasonable for a person to occupy accommodation which would otherwise be available to him.

5

By virtue of section 175(4) a person is threatened with homelessness "if it is likely that he will become homeless within 28 days".

6

If a person (referred to as an "applicant") applies to a local housing authority (an "authority") for "accommodation" or "assistance in obtaining accommodation", and the authority "have reason to believe that he is or may be homeless or threatened with homelessness", then, subject to certain exceptions which are irrelevant for present purposes, section 183 provides that the subsequent sections of Part VII apply. If the authority have "reason to believe that an applicant may be homeless or threatened with homelessness", section 184 requires them to make inquiries whether an applicant is eligible for assistance and if so what duties are owed to him (and to inform the applicant of their decision).

7

Sections 188, 190, 192 and 193 impose duties on authorities depending on the status of the applicant. There are three statuses of importance when deciding on the extent of an authority's duties, namely eligibility for assistance, priority need, and intentional homelessness. Eligibility for assistance and intentional homelessness are respectively defined in sections 183(2) and 191, and neither is in point for the purposes of the instant appeals.

8

Priority need is of central relevance to these appeals, and section 189(1) identifies those who have "priority need for accommodation" as being:

"(a) a pregnant woman or a person with whom she resides or might reasonably be expected to reside;

(b) a person with whom dependent children reside or might reasonably be expected to reside;

(c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;

(d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster."

9

Section 189(2) enables the Secretary of State "to specify further descriptions" of priority need and "to amend or repeal any part of subsection (1)". By the Homelessness (Priority Need for Accommodation) (England) Order 2002 (SI 2002/2051), the Secretary of State added four new priority need categories. They are (i) children between 16 and 18, other than certain children for whom local authority children's services have responsibility, (ii) those under 21 who were between 16 and 18, in care or fostered (other than certain students), (iii) those over 21 who are vulnerable as a result of having been in care (other than certain students), or having served in the armed forces or having been in custody, and (iv) those who are vulnerable as a result of leaving accommodation on account of violence or threats of violence.

10

Under section 188, if the authority "have reason to believe that an applicant may be homeless … and have a priority need", they must "secure that accommodation is available for his occupation pending a decision as to the duty … owed to him".

11

Section 190 is concerned with cases where an authority are satisfied that an applicant is homeless but became homeless intentionally. If such an applicant also has priority need, the authority must provide him with (a) accommodation for a period which is sufficient to give him a reasonable opportunity to find alternative accommodation, and (b) advice and assistance in securing such accommodation – section 190(2). Section 190(3) provides that, if such an applicant does not have priority need, he shall only be provided with such advice and assistance.

12

Sections 192 and 193 are concerned with cases where an authority are satisfied that an applicant is homeless, but did not become homeless intentionally. Section 192 applies where the authority are satisfied that such an applicant does not have priority need. In such a case, the authority must provide the applicant with advice and assistance in attempting to secure accommodation, and they may (but not must) secure that accommodation is available to him – section 192(2) and (3). Section 193 applies where the authority are satisfied that such an applicant has priority need. In such a case, subject to exceptions which are irrelevant for present purposes, the authority must secure that accommodation is available for the applicant.

13

Sections 195 and 196 are concerned with cases where the authority are satisfied that an applicant is threatened with homelessness, and for present purposes it suffices to say that an authority's obligations in such a case reflect the obligations in sections 190, 192 and 193 in relation to the actual homeless.

14

Section 202 entitles an applicant to seek an internal review of an authority's decision, inter alia, under sections 190 to 193 and 195, or as to the suitability of any accommodation offered to him. The procedure under any such review is governed by section 203. Section 204 permits any applicant who is dissatisfied with the outcome of any such review to appeal to the County Court on a point of law. An appeal lies from the decision of the County Court to the Court of Appeal, and from there to the Supreme Court, but in each case permission to appeal is needed in the normal way.

15

Section 4 of the 2010 Act lists "the protected characteristics", and they include "disability", which is itself defined in section 6 as including mental or physical impairment, whose nature is further explained in Schedule 1. Section 13 deals with direct discrimination generally, and it involves "A treat[ing] B less favourably than A treats or would treat others" "because of a protected characteristic". By virtue of section 15(1), discrimination against a disabled person also occurs if "(a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim". (This definition effects a statutory reversal of the majority House of Lords decision in Lewisham LBC v Malcolm [2008] UKHL 43, [2008] 1 AC 1399.) Section 19 deals with indirect discrimination.

16

Section 29(1) and (2) provides that a person concerned with providing a service to the public must not discriminate against a person by not providing the service or as to the terms on which the service is provided. Section 29(6) specifically outlaws discrimination by "[a] person … in the exercise of a public function" which is not the provision of a service. Section 29(7) imposes a duty to "make reasonable adjustments" on a person who provides a service to the public or who exercises another public function. Section 20(1) and (2) states that where a person, A, has to make adjustments, the obligation involves satisfying three requirements, of which only one is potentially relevant in the present context, namely that identified in section 20(3) which provides:

"The first...

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