December 2004

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. However, in more recent cases (see Rother DC v Freeman-Roach), the principle discussed in the Tetteh case was found to be sound - it is sufficient for a decision letter to refer to the test that has been applied. There is no need to detail, in every case, the characteristics of the notional person with whom the applicant was being compared.

The claimant had applied to the defendant authority for accommodation while serving custodial sentences for drug offences.  His application indicated that he had no medical problems but that, although he had overcome the drug habit while in prison, he was at risk of relapsing into drug abuse if homeless on release.  The council accepted that the applicant was homeless but decided, on review, that he did not have priority need.  It was not satisfied that he was “vulnerable” (section 189(1)(c)).  An appeal to the county court under section 204 was dismissed.

The Court of Appeal dismissed a second appeal.  The authority had correctly stated and applied the vulnerability “test” that was broadly used at the time as set out in R v Camden LBC ex p Pereira (1998) 31 HLR 317.  It was not required to set out the characteristics of the “ordinary" person whom it had used as a comparator and nor was it required to identify what (if any) specific risk of injury or detriment to the applicant it had identified.

Although the council had not interviewed the applicant before notifying him of the negative decision, the statute did not require an interview to be conducted in all cases and nor did it require an authority to notify an applicant, in advance, of its likely decision or the grounds upon which it was likely to be based.

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