20th April 2005

Editor's note: The landmark case of Hotak v London Borough of Southwark; Kanu v London Borough of Southwark; Johnson  v Solihull Metropolitan Borough Council [2015] UKSC 30 redefines how vulnerability should be assesed. The Supreme Court decided that the correct comparator to use, when assessing whether an applicant is vulnerable, is not 'an ordinary homeless person', but rather an ordinary person, when homeless. The use of the comparison with a 'street homeless' person, as in Osmani v Camden LBC [2004] EWCA Civ 1706 is to be avoided, as homelessness manifests itself in many different ways.

The claimant was an Algerian national who had sought asylum in the UK.  He held a private tenancy for eight years but when the landlord obtained a possession order he applied to Wandsworth for accommodation.  On a medical form he identified his conditions as including: chronic backache, cramps, rheumatism, hand injury, reduced eyesight and depression.  The council received written reports from his GP and a chartered psychologist and referred them to its own medical adviser (who did not examine the claimant or his medical records).  It decided that the claimant did not have a priority need for accommodation.  That decision was upheld on review.  HHJ Zucker dismissed an appeal.

The Court of Appeal dismissed the claimant’s second appeal.  If there remained any doubt about the correct legal test to apply in deciding whether an application was “vulnerable” within the meaning of Housing Act 1996 section 189(1)(c) then “Auld LJ’s judgement in Osmani v Camden LBC [2004] EWCA Civ 1706 had removed it”.  The council had not misdirected itself.  It did not matter whether a reviewing officer expressed his decision in terms that the applicant “was at no greater risk of injury or detriment than the ordinary homeless person", or in terms of the applicant being "no less able to fend for himself than the ordinary homeless person".  These were simply two ways of saying the same thing.  There was not procedural unfairness in not disclosing the medical adviser’s final report to the claimant as there was no rule that an applicant should always have “the last word” in respect of medical advice.


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