Hotak v Southwark London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kitchin,Lord Justice Pitchford,Lord Justice Richards,Lord Justice Moore-Bick |
| Judgment Date | 15 May 2013 |
| Neutral Citation | [2012] EWCA Civ 1874,[2013] EWCA Civ 515 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 May 2013 |
| Docket Number | Case No: B5/2012/1145 |
[2012] EWCA Civ 1874
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LAMBETH COUNTY COURT
(HIS HONOUR JUDGE BLUNSDON)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Kitchin
Case No: B5/2012/1145
Paul Brown QC and Heather Emmerson (instructed by Centre 70) appeared on behalf of the Appellant
The Respondent did not appear and was not represented
This is an application for permission to appeal against the order of His Honour Judge Blunsdon dated 27 April 2012 dismissing an appeal brought by the appellant by his brother and litigation friend under s.204 of the Housing Act 1996. Permission to appeal was refused by Lord Neuberger MR on the papers by order dated 23 August 2012. The appellant has requested that decision be reconsidered at an oral hearing and so it is that it comes before me today.
The appeal challenged the decision of the London Borough of Southwark dated 3 June 2011 that the appellant is not in priority need of housing within the meaning of s.189 of the Act on the basis that, although the appellant is homeless and his medical conditions are such that, considered on his own, he may be vulnerable within the meaning of s.189(1)(c), he does not fall within that provision because his brother, who is also homeless, can continue to provide him with support. The judge upheld that conclusion and dismissed the appeal. The effect of the decision is that the council is not under a duty to provide the appellant with accommodation under s.193 of the act.
In refusing permission to appeal, Lord Neuberger reasoned that, when determining whether an applicant is vulnerable, one has to consider whether he is more vulnerable than an average homeless person with none of the particular problems from which the applicant suffers. If, thanks to special facts, such as care provided to him by a third party, the vulnerability which he would otherwise have due to his particular problems does not exist, then he is not vulnerable. Lord Neuberger could see no reason why, as a matter of logic, fairness or principle, one cannot take into account the voluntary acts of a third party, particularly a relation such as a brother, when deciding whether an applicant is, as a matter of fact, vulnerable. Although particular phrases in some of the cases may appear to provide some support for the contrary view, upon further examination they do not do so. They were concerned with defining what acts potentially bring an applicant within the concept of vulnerability rather than giving assistance on the question whether he is, bearing in mind all the circumstances of the particular case, in fact vulnerable.
Upon this application the appellant has been represented by Mr Paul Brown QC and Miss Heather Emmerson. In developing his submissions, Mr Brown has taken me to the words of s.189(1)(c) of the Act and submits that the section confers priority needs status on a person who is vulnerable by reason of one of the matters there set out and also a person with whom such a vulnerable person resides or might reasonably be expected to reside. He submits that the statutory scheme is that, where an applicant is part of a household that would stay together for mutual support in the event that they were homeless, both the applicant and the other member of his household are given priority need for accommodation under the statute, rather than neither. This, Mr Brown submits, and I agree, is not a point with which Lord Neuberger specifically dealt when refusing permission on the papers. I think it is an argument which has a real prospect of success and which merits consideration by this court.
Mr Brown has also referred me to the decisions of this court in R v Waveney District Council ex parte Bowers [1983] 1 QB 238, R v London Borough of Camden ex parte Pereira [1999] 31 HLR 317 and Osmani v London Borough of Camden [2004] EWCA Civ 1706. As I have said, Lord Neuberger considered that these were concerned with the finding that acts potentially bring an applicant within the concept of vulnerability. However, focusing his attention particularly on the decisions in Bowers and Pereira, Mr Brown has persuaded me that it is at least arguable that this court contemplated a test which requires the question of vulnerability to be answered by reference to the applicant's ability to cope and fend for himself.
Finally, Mr Brown submits that the Code of Guidance also provides some support for the appellant's contentions. I am doubtful this adds much, if anything, to Mr Brown's other points. Indeed, in the course of his submissions to me, he frankly accepted that, if the appellant does not prevail on his other points, then he is unlikely to prevail on this one. Moreover, in his written submissions, he has expressed reservations about the extent to which it is appropriate to interpret s.189(1)(c) by reference to the Code.
Nevertheless, for the reasons I have given, I am satisfied that an appeal does have a real prospect of success and it raises an important point of principle, namely the correct approach to the test for vulnerability under s.189. An appeal would resolve the uncertainty which apparently exists for applicants for social housing and local housing authorities in relation to this issue.
I am therefore satisfied that it is appropriate to grant permission to appeal.
Order: Permission to appeal granted.
[2013] EWCA Civ 515
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LAMBETH COUNTY COURT
HIS HONOUR JUDGE BLUNSDON DATED 27 APRIL 2012
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Lord Justice Richards
and
Lord Justice Pitchford
Case No: B5/2012/1145
Paul Brown QC and Heather Emmerson (instructed by Centre 70 Advice Centre) for the Appellant
Kelvin Rutledge QC (instructed by London Borough of Southwark) for the Respondent
Hearing date: 2 May 2013
Approved Judgment
The issue
The issue raised in this appeal is whether, when assessing an applicant's "priority need for accommodation" under section 189(1)(c) Housing Act 1996 (that is, whether the applicant is "vulnerable" by reason of old age, mental illness or handicap or physical disability or other special reason), the housing authority is entitled to have regard to the personal support and assistance which has been and will continue to be provided to the applicant, if made street homeless, by a family member with whom the applicant is currently living.
The factual background
The appellant was born on 1 May 1989 and is now aged 23 years. He is a native of Afghanistan who entered the United Kingdom in February 2008 and made an application for asylum on his arrival. He was granted leave to remain on 8 March 2011 which expires on 8 March 2016. The appellant's brother, Ezatullah Hotak ("Ezatullah"), was born on 15 June 1990 and is now aged 24 years. He entered the United Kingdom in 2006 and has since been granted leave to remain.
On his arrival in the United Kingdom the appellant lived in Liverpool for about 18 months supported by NASS. He was arrested for an alleged theft of £20 and was remanded in custody. On 12 July 2010 the appellant was released from custody without charge and he travelled to London to be with his brother. They lived together in a flat belonging to a friend in Peckham in the London Borough of Southwark. In March 2011 the appellant and his brother were required to leave the flat because of over-crowding. On 25 March 2011 they attended together to make an application for housing assistance from Southwark housing department ("the Council"), the local housing authority. Ezatullah was, at the time of the application, by reason of his immigration status, ineligible in his own right and the application was made by the appellant. The Council took time to make an assessment of the appellant's entitlement and needs and, in the meantime, the brothers were accommodated.
It is common ground that the appellant suffers learning difficulties which affect his ability to cope with daily living, has self-harmed during his period in custody and has suffered symptoms of depression and post-traumatic stress disorder; that he relies on Ezatullah for daily personal support, including prompts to undertake personal hygiene, to change his clothes, to undertake routine, and to organise health appointments, meals and finances; that but for Ezatullah's support and assistance the probability is that the appellant would be treated as "vulnerable" for the purposes of section 189(1)(c) of the 1996 Act. In the light of these mutual concessions it is not necessary for the purpose of this judgment further to describe the evidence which justified them.
The Council's decisions
On 27 April 2007, after making inquiries under section 184 Housing Act 1996 the Council made a decision that the appellant was eligible for assistance, and was unintentionally homeless. However, it also found that he was not in priority need under section 189(1)(c) because he received assistance from his brother and, in a homeless situation, he would not suffer injury or detriment or be less able to fend for himself than would the ordinary street homeless person. The appellant requested a review of this decision on 17...
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