Homelessness Update

26 October 2017

Sarah Salmon looks at two recent Court of Appeal decisions that provide guidance on: vulnerability under section 189(1)(c), Housing Act 1996; contracting out and the Public-Sector Equality Duty (PSED); and, intentional homelessness.

Vulnerability after Hotak

Following a raft of county court decisions that have been reported in Legal Action and on the Nearly Legal blog, the Court of Appeal has handed down a much-awaited decision dealing with, inter alia, the correct approach to vulnerability under section 189(1)(c) following the Supreme Court case Hotak v Southwark LBC [2015] UKSC 30; [2016] AC 811. Adrian Davis of Field Court Chambers provided a useful summary of the Hotak in our February 2016 housing newsletter available here.

An applicant has a priority need for accommodation if he or she is 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: s.189(1)(c), Housing Act 1996. In Hotak, it was held that an authority’s assessment of whether an applicant is vulnerable involves a comparison, and the correct comparator is the ordinary person if made homeless (per Lord Neuberger at [58]). Lord Neuberger also said at [53]:

“…I consider that the approach consistently adopted by the Court of Appeal that “vulnerable” in section 189(1)(c) connotes “significantly more vulnerable than ordinarily vulnerable” as a result of being rendered homeless, is correct.”

Part of the problem following Hotak, has been what is meant by “significantly”. The Supreme Court did not set out a definition.

The Court of Appeal in Panayiotou v Waltham Forest LBC; Smith v Haringey LBC [2017] EWCA Civ 1624 were tasked with considering one issue of general application: “what is the meaning of “significantly” in this context?” (see judgment at [28]). The judgment is available here.

The Court of Appeal, recognising that the use of the word “significantly” in Hotak was causing practical problems, set out what it though “significantly” meant.

  1. Drawing an analogy with the definition of “disability” contained within section 6, Equality Act 2010 was unhelpful and the wrong approach (see judgment at [56]-[58]).
  2. “Significantly” does not introduce a quantitative threshold. Lord Neuberger in Hotak described “significantly more vulnerable” as capturing the approach of the Court of Appeal in previous cases and although it must be recognised that the previous cases, in light of Hotak, were using the incorrect comparator none of the cases envisage a quantitative approach (see judgment at [59]-[64]).
  3. Lord Neuberger was using “significantly” in a qualitative sense that needs to be assessed considering an applicant’s particular circumstances:
  4. “…the question to be asked is whether, when compared to an ordinary person if made homeless, the applicant, in consequence of a characteristic within section 189(1)(c), would suffer or be at risk of suffering 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” (see judgment at [64]).
  5. Whether the test was met in a particular case was the reviewing officer to evaluate (see judgment at [64]).

The consequence of this for both local authorities and applicants is where “significantly” had been used within a decision letter in such a way so as to suggest a higher threshold i.e. importing a quantitative threshold, the decision will contain an error of law (see judgment at [68]-[70]).

Contracting out and the PSED

A secondary issue in Smith v Haringey LBC [2017] EWCA Civ 1624, was whether or not Haringey was prevented from contracting out the function of conducting its homelessness reviews either because of the terms of section 149, Equality Act 2010 which imposes the PSED or due to the terms of its constitution. Further, if Haringey was not so prevented, in its procurement exercise did it fail to comply with the PSED.

The Court of Appeal rejected these grounds of appeal in their entirety (see judgment at [71]-[88]). In doing so, however, Lewison LJ made some interesting obiter comments at [90] reminding practitioners that the regime for appeals on a point of law under the Housing Act 1996 was a right limited to a point of law arising from the review decision. Points taken during such appeals based upon the contracting out of functions, challenged administrative decisions usually taken some time ago for which any applicant would be out of time for a judicial review. Further, challenges to public procurement decisions are generally susceptible to challenge under the Public Contracts Regulations 2015 and indications in case law that a person may challenge a public procurement decision by way of judicial review was “not an invitation to pursue technical points that do not affect the individual”:

“Mr Smith was entitled to a decision which was lawful in the sense that the test required by the Housing Act 1996 had to be correct applied, irrespective of the person who applied it.”

Intentional homelessness and breaking the causal link

In Doka v Southwark LBC [2017] EWCA Civ 1532, the Court of Appeal held that despite a period of two years occupying a room in a property for which £500 per month was paid, the accommodation was too precarious so as to break the causation between the applicant’s present state of homelessness and his eviction from a property for which he had held a secure tenancy. The reviewing officer was entitled to conclude the applicant was intentionally homeless.

Legal Framework

Section 191, Housing Act 1996 provides that a person becomes homeless intentionally if he has deliberately done or failed to do something in consequence of which he ceases to occupy accommodation available for his occupation and which it would be reasonable for him to occupy.

When considering whether an applicant is intentionally homeless, an authority must look at the conduct which caused the present homelessness (Din (Taj) v Wandsworth LBC [1983] 1 AC 657) unless a later event (which is not itself an act of voluntary homelessness) supersedes the earlier conduct, so that it cannot reasonably be said that “but for” that earlier conduct, the applicant would not have become homeless, in which case the causal connection between current homelessness and earlier conduct will have been interrupted. In the absence of such an event, the question is whether the proximate cause of the homelessness is an event which is unconnected to the earlier conduct, in the absence of which the homelessness would probably not have occurred: Haile v Waltham Forest LBC [2015] UKSC 34; [2015] AC 1471.

A way of breaking the chain of causation is by obtaining intervening “settled accommodation”: Din (Taj). Whether accommodation is settled is a “question of fact and degree depending on the circumstances of each individual case”: per Ackner LJ in Din (Taj) at the Court of Appeal, unreported, cited with approval in Lambert v Ealing LBC [1982] 1 WLR 550.


In November 2010, Mr Doka, having accrued rent arrears, was evicted from a property for which he had a secure tenancy. It was accepted that he was intentionally homeless as a result. Between December 2010 and December 2012, Mr Doka resided in a room at the home of his former employer, Mr Theobald. Although initially a temporary arrangement, Mr Doka was informed he could live at the property until Mr Theobald’s son returned from university which would be a period of two to three years. Mr Doka also vacated the room for the days the son came home whilst at university. Mr Doka agreed to pay £500 per month for the use of the room. In December 2012, Mr Doka was asked to leave as Mr Theobald’s son returned. Between 2013 and October 2014, Mr Doka stayed with friends and finally applied to Southwark as homeless.

Southwark found that Mr Doka was intentionally homeless relying upon the eviction from the property held under a secure tenancy. In was contended by Mr Doka on review and on appeal that his residence at Mr Theobald’s property broke the chain of causation between his present state of homelessness and his eviction. Southwark upheld the original decision on review and his appeal to the county court under section 204, Housing Act 1996 was dismissed.

Court of Appeal

Mr Doka’s appeal was dismissed. The Court held, after a review of the authorities, that the reviewing officer was entitled to conclude that Mr Doka’s residence at Mr Theobald’s property was a precarious arrangement and that such an arrangement did not break the causation between his present state of homelessness and his eviction from the property for which he had held a secure tenancy: see para. 20 of the judgment.

The Court commented that the distinction in the decided cases between “settled” and “temporary” accommodation approved in Din was formulated at a time when Rent Act 1977 were still granted. Under the 1977 Act the tenant enjoyed a high degree of security. Noting that security of tenure had moved on and the majority of people who would be seeking accommodation after becoming intentionally homeless from available accommodation would find themselves looking for privately rented accommodation which was likely to be a six-month assured shorthold tenancy with no security of tenure under the Housing Act 1988, the Court said that

“What the applicant needs to establish is a period of occupation under either a licence or a tenancy which has at its outset or during its term a real prospect of continuation for a significant or indefinite period of time so that the applicant’s transition from his earlier accommodation cannot be said to have put him into a more precarious position than he previously enjoyed”: see paras. 11-18 of the judgment.

The judgment is available here.