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The Queen on the Application of Hotak (Claimant) v Secretary of State for the Home Department (Defendant)
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1 User Commentary

Melanie Davidson (In-house lawyer) 28 September 2015

Case Commentary: Hotak v London Borough of Southwark, Kanu v London Borough of Southwark and Jonhson v Solihull Metropolitan Borough Council [2015] UKSC 30

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Whether (i) the assessment of an applicant to determine his vulnerability under section 189(1)(c) of the Housing Act 1996 invoves an exercise in comparability and, if so, who this comparable group should be (ii) whether it is permissible to consider the support and assistance provided by a family or household member, if he were homeless (iii) whether section 149 of the Equality Act 2010 affected the determination of priority need under section 189 in the case of an applicant with a protected characteristic

Judgment was handed down in the joined cases of Hotak v London Borough of Southwark, Kanu v London Borough of Southwark and Jonhson v Solihull Metropolitan Borough Council on 13 May 2015. The case raises important questions on the assessment of a homeless applicant's vulnerability for the purpose of determining whether he can claim a priority need under section 189(1) of the Housing Act 1996; see Lord Walker in Runa Begum v Tower Hamlets London Borough Council [2003] UKHL 5 at para 114.

Lord Neuberger gave the decision of the court with which Lord Clarke, Wilson and Hughes agreed, Lady Hale dissenting in part.

Addressing the first ("comparability") issue, as to who you would compare the claimant against when assessing their claim, Lord Neuberger restated the doctrine that "vulnerable" (see section 189(1)(c) of the 1996 Act) is to be taken as meaning "significantly more vulnerable than ordinarily vulnerable" as a result of being homeless; see Ex P Bowers [1983] QB 238 pp. 241I-245A and R v Camden London Borough Council exp Pereira (1993) 31 HLR 317 at p.330. Accordingly one must compare the claimant's situation against the hypothetical situation of an ordinary person if they were made homeless/in need of accommodation.

As to whether support or assistance from a third party could be taken into account when assessing their vulnerability, this has to be assessed by reference to his situation if and when homeless. Third party support from family members and the like can only be considered by the authorities if provided consistently and predictably. 

The final issue concerned section 149 of the Equality Act 2010 ("the equality duty") and therefore Mr Kanu's appeal. Lord Neuberger considered that Mr Kanu had "what appears to be a pretty strong case for claiming to be vulnerable" but recognised that had Southwark Council not made errors in its assessment, notably in relation to its choice of comparator, he may not have reached the same decision. 

Lady Hale dissented on the decision to refuse Hotak's appeal. She drew a distinction between charitable care (whether provided by family, friends or charities) and that required under statute, noting that he benefitted from the former. In assessing his vulnerability the support he received from his brother should not have been taken into account for it was inconsistent with the intention of the statute. Both of them would have qualified as priority need as under the 1996 Act the non-vulnerable family member can apply on behalf of the vulnerable person. 

Appeal dismissed in respect of Hotak and Johnson. Appeal of Kanu accepted.  


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