Duty to accommodate those who were “vulnerable” considered


Re: Hotak & Ors v London Borough of Southwark [2015] UKSC 30

Under the Housing Act 1996, s 188, local authorities have a duty to ensure that accommodation is made available for applicants who are homeless and have “priority need” (defined in s 189 (c) as including persons who are “vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason.”).

Held: “vulnerable” carries a necessary implication of relativity as it can fairly be said that anyone who is homeless is vulnerable. So, it follows that s 189(1)(c) must contemplate homeless people who would be more vulnerable than many others in the same position. As such, any services and support that would be available to the applicant if he were homeless must be taken into account. This conclusion is supported by the purpose of the legislation. It would be contrary to common sense to ignore any aspect of the actual or anticipated factual situation when assessing vulnerability. The PSED duty is “not a duty to achieve a result”, but a duty “to have due regard to the need” to achieve the goals identified in the Equality Act 2010, s 149. The weight and extent of the public sector equality duty are highly fact-sensitive and dependent on individual judgement.

Karon Monaghan QC and Helen Mountfield QC were involved in this case.