Homelessness Law and Priority Need Lecture PDF

Homelessness Law & Policy: “Priority Need” Vivien Gambling Kent Law School, University of Kent 1  Part 1 – The legal context and framework for the test of ‘priority need’ Part 2 – The categories of prior...

Homelessness Law & Policy: “Priority Need” Vivien Gambling Kent Law School, University of Kent 1  Part 1 – The legal context and framework for the test of ‘priority need’ Part 2 – The categories of priority need Part 3 – Non-vulnerability priority need Outline of categories today’s Part 4 – Vulnerability and categories linked to vulnerability lecture Part 5 – The use of medical evidence Part 6 – Reflections Abbreviations used in these slides: LA = local authority; App = applicant 2  PART 1 – CONTEXT & LEGAL FRAMEWORK Before the HRA Act 2017 there was a bigger distinction as regards – o duties to those in “priority need” (predominantly families with dependent children and limited specified categories of single people); compared with o people not in priority need (most single people and couples without dependent children and without significant health problems) – LA’s duty was (then) limited to providing advice Changes made by the Homelessness Reduction Act 2017 – the aim was to extend some help to all applicants, including those not in priority need PREVENTION and RELIEF (if already homeless) duties o During the period of the ‘relief duty’ (up to 56 days) the Applicant might be assisted to find accommodation (e.g. in the private rented sector) whether or not the Applicant is in priority need Local authority’s duties if applicant is eligible Prevention and relief duties apply whether or not app is in priority need, THREATENED but priorityWITH need is relevant to s.188 interim duty and HOMELESSNESS s.193(2) ‘main duty’ HOMELESS Prevention Duty (for up to 56 days) Relief duty (for up to 56 days) – – s.195(2) reasonable steps to help secure that Housing needs assessment – suitable accommodation becomes s.189A available Personalised housing plan - Housing needs assessment – s.189A s.189A(1) Personalised housing plan – s.189A(1) From time of application, duty to provide immediate accommodation if if App may be eligible, homeless, in PRIORITY NEED – s.188 If after 56 days App is still homeless, duty under section 193(2) – ‘main housing duty’ applies if App is eligible homeless, in PRIORITY NEED & not intentionally homeless When and why priority need matters Initial application stage o Duty to provide ‘interim accommodation’ immediately from the point of an application, if the applicant may be homeless, eligible for assistance and may be in priority need (s.188 Housing Act 1996) Later stage o If App remains homeless 56 days after application (and relief duty not brought to an end sooner) the relief duty ends. Priority need is of critical importance to determine whether section 193(2) duty is owed (‘full housing duty’) to secure suitable accommodation is available  Application to LA for housing help Priority need matters from App eligible, threatened when an App eligible, HOMELESS with homelessness application is made - s.188 – Prevention Duty Relief duty duty to secure Plus assessment & Plan interim Plus assessment & plan accommodation if App may be eligible, homeless 8 weeks after initial application, prevention and relief & in priority need duties may be ended (if not already brought to an end sooner) App still threatened with App still HOMELESS, priority need matters, as LA has to App homeless but homelessness, no ongoing not in priority need – consider whether s.193(2) main duty no ongoing duty housing duty applies App homeless, in priority need but If App is eligible, homeless, in intentionally priority need and not homeless – intentionally homeless, 193(2) s.190(2) – accommodation for duty to secure that suitable reasonable (limited) accommodation is available period 6  Note – s.193(2) only arises, if at all, after the ‘relief’ duty ) The ‘full A housing authority (local authority) has a ‘full housing duty’ to secure that suitable housing accommodation is available for the applicant (only) if: - duty’ 1. The person is ELIGIBLE for housing assistance s.193(2) 2. The person is HOMELESS – the 4 3. The person has PRIORITY NEED 4. The person is NOT INTENTIONALLY elements HOMELESS If the person has no LOCAL CONNECTION, the local authority may be able to refer the person to another local authority. 7  Code of Guidance Homelessness Code of Guidance for local authorities Issued by the relevant government department – MHCLG Not a substitute for statutory law and case law – it is guidance not law Local authorities must have regard to the Code (s.182 HA 1996) and generally should give reasons if they do not follow the guidance Useful for lawyers and for students! When explaining the law it is not enough to refer only to the Code; but it is good to refer to the law (statutory provisions, case law) and relevant parts of the Code of Guidance  PART 2 – The categories of priority need Section 189 Housing Act 1996 189.— Priority need for accommodation. (1) The following have a priority need for accommodation— (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. (e) A person who is homeless as a result of that person being a victim of domestic abuse (2) [The Secretary of State may by order add categories of priority need…]…….. (5) …”domestic abuse” has the meaning given by s. 1 of the Domestic Abuse Act 2021  Priority Need categories Additional categories – 2002 Order Homelessness (Priority Need for Accommodation) (England) Order 2002/2051 Para 3: Children aged 16 or 17 (unless being housed through social services) Para 4: Young people under 21 who were “looked after” children after reaching 16 and before reaching 18 years Para 5: Vulnerable due to institutional backgrounds: (1) over 21 and vulnerable as a result of having been looked after, accommodated or fostered. (2) vulnerable as a result of having been a member of the armed services [and note s.8 Armed Forces Act 2021 – desirable to remove disadvantages] (3) vulnerable as a result of having been in prison Para 6: Vulnerable as a result of ceasing to occupy accommodation by reason of violence from another person or threats of violence from another person which are likely to be carried out. However in this Order “violence” does NOT include violence that is domestic abuse (as defined in s.1 Domestic Abuse Act 2021) – see section 78(8) Domestic Abuse Act 2021.  PART 3 Priority need NOT based on vulnerability (1) Pregnancy - s.189(1)(a) Person with whom dependent children reside or might reasonably be expected to reside - s.189(1)(b) (and see Code of Guidance): Whether dependent: R. v Kensington and Chelsea RLBC Ex p. Amarfio 2 F.C.R. 787; (1995) 27 H.L.R. 543 – 17 year old, on training scheme Residing with or reasonably expected to reside with – separated parents: R. v Lambeth LBC Ex p. Vagliviello (1990) 22 H.L.R. 392 – possible to have dependence on both parents, though unusual R. v. Westminster C.C., ex p. Bishop (1996) 29 H.L.R. 546, QBD- dependence needed R. v Oxford City Council (1998) 30 H.L.R. 506 - children lived with father (factual Q) Holmes-Moorhouse v Richmond upon Thames LBC UKHL 7 – whether might reasonably be expected to reside – (1) LA can take into account housing scarcity & (2) court order (of family court) for shared residence is not conclusive  Priority need NOT based on vulnerability (2) Homeless as a result of an emergency - s.189(1)(d). Person aged 16 or 17 – 2002 Order, para 3: LA can’t delay a decision: Robinson v. Hammersmith EWCA Civ 1122 Primary duty on child (social) services: R (M) v. Hammersmith UKHL 14 and R (G) v. Southwark UKHL 26 Young people under 21 who were looked after children between 16 and 18 (but not full-time students) – 2002 Order, para 4 Homeless as a result of being a victim of domestic abuse [s.189(1)(e)]  PART 4 Priority Need based on vulnerability – the categories Must be in a specified category AND vulnerable - ‘a single composite test’ [Crossley case] old age, mental illness or handicap or physical disability or other special reason (s.189(1)(c) HA 1996), institutional reasons (2002 Order, para 5), 1) over 21 and vulnerable as a result of having been looked after, accommodated or fostered 2) Vulnerable as a result of having been a member of the armed forces 3) Vulnerable as a result of having been in prison violence (2002 Order, para 6) – vulnerable as a result of ceasing to occupy accommodation by reason of violence – see Slide 10 Priority need based on vulnerability – some cases ▪ Crossley v Westminster City Council EWCA Civ 140 - Single composite test – LA should consider the combined impact of the various conditions on the Applicant that cumulatively might render the Applicant vulnerable. (In many cases there will be a mixture of reasons for the applicant’s vulnerability - Hotak). ▪ R. v. RB Kensington & Chelsea ex p Kihara (1997) 29 HLR 147 – suggests there needs to be ‘unusual gravity’ ▪Self inflicted? R v. Waveney District Council ex parte Bowers QB 238 – this case suggested that where vulnerability was ‘self-induced’, this should fall outside the category of “other special reason”. In the Crossley case the court said it is a grey area, and any other relevant factors need to be considered Vulnerability – case law pre the Hotak case…. And vulnerable: R. v Camden LBC Ex p. Pereira (1999) 31 H.L.R. 317: the Judge stated the question was whether P was vulnerable due to [a defined reason] – and the test of ‘vulnerable’ was whether Mr P when homeless was less able to fend for himself than an ordinary homeless person so that injury or detriment to him will result where a less vulnerable person would be able to cope without harmful The ‘accepted’ test applied became: Less able to fend for himself than an ordinary (street) homeless person BUT – in 2015 in Hotak the Supreme Court disapproved of Pereira. 15 Where are we now? The Supreme Court decision in Hotak The people and the facts : Sifatullah Hotak (para 23-28) Patrick Kanu (para 29-33) Craig Johnson (para 19-22) Key issues (para 35): Does vulnerability require comparison? If so, with who? Can the LA take care and assistance into account? What is the effect of the public sector equality duty [s.149 Equality Act 2010] where an 16 applicant who is homeless is disabled? Vulnerability in the Supreme Court – Hotak Some points of significance (para 37-47) 1. Vulnerability is not stand alone vulnerability, but vulnerability linked to homelessness (para 37) 2. Look at particular characteristics and situation of the applicant in the round – not by reference to separated problems (38) 3. Resources of LA have no part to play in deciding whether the applicant is vulnerable (39) 4. ‘Street homelessness’ and ‘fend for oneself’ are potentially dangerous terms to use (40). An applicant can be vulnerable and can still ‘fend for himself’ (41). Legitimacy of ‘street homeless’is under question (42)  Vulnerability in the Supreme Court Some points of significance cont’d (para 37-47) 5. Use of statistics is very dangerous (43). 6. Applicants in s.189(1)(a)(b)&(d) (categories not dependent on vulnerability) are not in priority need because they are vulnerable – so it is unhelpful to draw analogies (44). 7. It is ‘plainly wrong’ to state that LA are not required to make provisions for households where one or more member is in reasonable physical health (45). 8. A one stage test (composite assessment) is probably more practical (46). Vulnerability in the Supreme Court Vulnerability – a comparative concept Lord Neuberger: approach ‘consistently adopted by the Court of Appeal’ 🡪 vulnerable = ‘significantly more vulnerable than ordinarily vulnerable’ as a result of being rendered homeless (53). Therefore vulnerability is a comparative concept BUT who is the comparison with? The applicant should be compared with an ordinary person if made homeless, not an ordinary homeless person. (58) So what does ‘significantly more vulnerable’ mean? Vulnerability – in the Paniayiotou case Significantly more vulnerable – what does it mean? Does it mean: ‘a great deal’? Does it mean ‘more than trivial’? Series of contradictory decisions in county courts, before Panayiotou v. Waltham Forest LBC; Smith v. Haringey LBC EWCA Civ 1624 – a qualitative or a quantitative test? Court held – significantly = a qualitative test, about relevance: Question is ‘whether, when compared to an ordinary person if made homeless, the applicant, in consequence of a characteristic within s.189(1) (c), would suffer or be at risk of suffering harm or detriment which the ordinary person would not suffer or be at risk of suffering such that the harm or detriment would make a noticeable difference to his ability to deal with the consequences of homelessness. … an applicant would be vulnerable if he were at risk of more harm in a significant way.’ (para 64)  Vulnerability in the Supreme Court – Hotak Impact of 3 party support on vulnerability rd An otherwise vulnerable applicant might not be vulnerable if provided with 3rd party care and support. There needs to be a contextual and practical assessment of his physical and mental ability if he is rendered homeless (not a clinical assessment of his physical and mental ability). (62) question is one of fact; will the 3 rd party provide the support on a consistent and predictable basis? (65) If support is available, applicant can still be vulnerable. (69) Decision must be based on evidence. (70) Level of support needed to remove vulnerability might be so high that ‘it goes beyond what can be expected on any view.’ (70) Contrast Lady Hale’s opinion (in her judgment) Vulnerability - the Supreme Court The Equality Duty Equality duty “must be exercised in substance, with rigour, and with an open mind.” (78) “There is a risk that such words can lead to no more than formulaic and high-minded mantras... It is therefore appropriate to emphasise that the equality duty, in the context of an exercise such as a section 202 review, does require the reviewing officer to focus very sharply on (i) whether the applicant is under a disability (or has another relevant protected characteristic), (ii) the extent of such disability, (iii) the likely effect of the disability, when taken together with any other features, on the applicant if and when homeless, and (iv) whether the applicant is as a result vulnerable.” (78)  PART 5 Vulnerability – the use of medical evidence Inquiries – LA must put issues to applicant, not necessarily everything, but generality of adverse material R. v Tower Hamlets LBC, Ex p. Rouf (1989) 21 H.L.R. 294; R. v Tower Hamlets LBC, Ex p. Nadia Saber (1989) 24 H.L.R. 294; R. v Southampton CC, Ex p. Ward (1984) 14 H.L.R. 114; R. v Gravesham BC, Ex p. Winchester (1986) 18 H.L.R. 208, QBD. Role of independent medical assessor – Hall v Wandsworth LBC; Carter v Wandsworth LBC EWCA Civ 1740 Local authorities use of external medical consultants Vulnerability – medical evidence - a case example Guiste v The London Borough of Lambeth EWCA Civ 1758 Troy Guiste aged 23; lifelong thyroid condition causing convulsions if not treated; medicine needed to be appropriately stored. Disagreement over the seriousness of his mental health problems Solicitors obtained report of consultant psychiatrist, Dr Freedman, who noted anxiety, depression, hallucinations including voices telling him to harm himself, history of self-harm, impaired cognitive ability Local authority rejected Dr Freedman’s opinion and relied on ‘Now Medical’ – medics who did not meet or speak with Troy Guiste. What did the Court of Appeal say?  PART 6 – REFLECTIONS Vulnerability & Technicality – quotes to reflect on / critique ‘Whilst the plight of homeless families has been a key driver of statutory intervention, those homeless claimants who do not conform to the gender stereotypes of either male breadwinner or caring mother are forced to the more liminal and mobile zones of welfare, subject to discretion, interventions, surveillance and the ever present risk of permanent exclusion… the single homeless person is not only categorised by gender, but further divided through the application of technical legal/medical explanations of his or her homelessness and its effects.’ ‘We have conceptualised the social as combining both the notion of social protection from collective risk and the conditional integration of the excluded into mainstream society. Vulnerability is a particularly ambiguous and elusive requirement. It suggests a broadening of the social, whilst at the same time it has a gate-keeping function that quickly becomes technical, demanding legal and sometimes medical expertise to be applied before claims can be admitted.’ Helen Carr & Caroline Hunter (2008) Managing vulnerability: homelessness law and the interplay of the social, the political and the technical, Journal of Social Welfare and Family Law, 30:4, 293-307, DOI: 10.1080/09649060802580979  Monumental importance of Hotak & Panayiotou Injustice between 1999 and 2015 after Pereira? (if the wrong test of ‘vulnerable’ was applied) Some NB - old text books pre-2015 will be out of date issues to “Priority need” in Wales – enacted the Pereira test think Ambiguities of the test of ‘vulnerable’, e.g what about… is an ‘ordinary person’? Vulnerable applicants’ lives, including physical and mental health conditions, under the microscope The link between vulnerability and state institutions 26  Main References Homelessness Code of Guidance for Local Authorities (Ministry of Housing, Communities and Local Government (MHCLG)) R. v Kensington and Chelsea RLBC Ex p. Amarfio 2 F.C.R. 787; (1995) 27 H.L.R. 543 R. v Lambeth LBC Ex p. Vagliviello (1990) 22 H.L.R. 392 R. v. Westminster C.C., ex p. Bishop (1996) 29 H.L.R. 546, QBD R. v Oxford City Council (1998) 30 H.L.R. 506 Holmes-Moorhouse v Richmond upon Thames LBC UKHL 7 Higgs v Brighton and Hove City Council EWCA Civ 895 Robinson v. Hammersmith EWCA Civ 1122 R (G) v. Southwark UKHL 26 Crossley v Westminster City Council EWCA Civ 140 R. v. RB Kensington & Chelsea ex p Kihara (1997) 29 HLR 147 R v. Waveney District Council ex parte Bowers QB 238 R. v Camden LBC Ex p. Pereira (1999) 31 H.L.R. 317 Hotak v Southwark LBC UKSC 30 Panayiotou v. Waltham Forest LBC; Smith v. Haringey LBC EWCA Civ 1624 Guiste v Lambeth EWCA Civ 1758 27