The ‘homelessness’ provisions are set out in Part 7 of the Housing Act 1996. Section 193 of the Act provides:
“193 Duty to persons with priority need who are not homeless intentionally
1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.
2) Unless the authority referred the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.”
Before priority need is considered, an applicant must be homeless within the meaning of s.175, eligible for assistance within the meaning of s.185, and is not intentionally homeless within the meaning of s.191.
“189 Priority need for accommodation
1) The following have a priority need for accommodation-
(a) a pregnant woman or a person with whom she resides or might reasonably expected to reside;
(b) a person with whom dependent children reside or might reasonably be expected to reside;
(c) 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;
(d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster.
2) The Secretary of State may by order-
- specify further descriptions of persons as having a priority need for accommodation, and
- amend or repeal any part of sub-section (1).”
The Homeless (Priority Need for Accommodation) (England) Order 2002 (2002 SI 2051) (the “2002 Order”) created further categories of priority need, none of which apply to the appellant. In the exercise of its functions relating to homelessness the Council was required by s.182(1) of the 1996 Act to have regard to any guidance given by the Secretary of State.
The Homelessness Code of Guidance 2006
The Department for Communities and Local Government: London published the Homelessness Code of Guidance for Local Authorities in July 2006. Guidance as to the assessment of priority need is given in chapter 10, parts of which make specific reference to the circumstances which the housing authority should consider.
Chapter 10.12 lists those categories of persons who may qualify for priority need on the ground of vulnerability either under s.189(1) or the 2002 Order:
10.12 A person has a priority need for accommodation if he or she is vulnerable as a result of:
1) old age [section 189(1)(c)];
2) mental illness or learning disability (mental handicap or physical disability [section 189(1)(c)];
3) having been looked after, accommodated or fostered and is aged 21 or more [2002 Order, paragraph 5(1)];
4) having been a member of Her Majesty’s regular naval, military or air forces [2002 Order, paragraph 5(2)];
5) having been in custody or detention [2002 Order, paragraph 5(3)];
6) ceasing to occupy accommodation because of violence from another person or threats of violence from another person which are likely to be carried out [2002 Order, paragraph 6]; or
7) any other special reason [section 189(1)(c)]. [attributions added]
In the case of (i) (ii) (vii) only, a person with whom a vulnerable person lives or might reasonably be expected to live also has a priority need for accommodation and can therefore make an application on behalf of themselves and that vulnerable person.
1.1. It is a matter of judgment whether the applicant’s circumstances make him or her vulnerable. When determining whether an applicant in any of the categories set out in paragraph 10.12 is vulnerable, the local authority should consider whether, when homeless, the applicant would be less able to fend for him/herself than an ordinary homeless person so that he or she would suffer injury or detriment, in circumstances where a less vulnerable person would be able to cope without harmful effects.
1.2. Some of the factors which may be relevant in determining whether a particular category of applicant is vulnerable are set out below. The assessment of an applicant’s ability to cope is a composite one taking into account all of the circumstances. The applicant’s vulnerability must be assessed on the basis that he or she is or will become homeless and not on his ability to fend for him or herself while still housed.” [original emphasis]
The reference in chapter 10.14 to the need, when assessing the applicant’s ability to cope, to take into account “all of the circumstances” was of particular relevance to the appellant’s application.
The Code proceeds to examine the separate categories of applicants listed in chapter 10.12. In the case of vulnerability arising from mental illness or learning disability the guidance states at chapter 10.16:
“10.16 … In considering whether such applicants are vulnerable, authorities will need to take account of all relevant factors including:
(i) the nature and extent of the illness and/or disability which may render the applicant vulnerable;
(ii) the relationship between the illness and/or disability and the individual’s housing difficulties; and
1) the relationship between the illness and/or disability and other factors such as drug/alcohol misuse, offending behaviour, challenging behaviours, age and personality disorder.”
The guidance makes no specific reference to the relevance, if any, of personal support which the applicant may receive and continue to receive from a source other than the housing authority.
In the case of those who may be vulnerable “having been looked after, accommodated or fostered and aged 21 or over”, or “having been a member of the armed forces”, or “having been in custody or detention”, or “having left accommodation because of violence” the Code advises that a housing authority “may wish to consider”, amongst other things, whether the applicant has any existing support networks including family or friends (chapter 10, paragraphs 20 (iv), 23 (vi), 25 (iv) and 29 (iii)). In the case of those who may be vulnerable for some “other special reason” chapter 10.30 states:
“10.30 Section 189(1)(c) provides that a person has priority for accommodation if he or she is vulnerable for any “other special reason”. A person with whom such a vulnerable person normally lives or might reasonably be expected to live also has a priority need. The legislation envisages that vulnerability can arise because of factors that are not expressly provided for in statute. Each application must be considered in the light of the facts and circumstances of the case. Moreover, other special reasons giving rise to vulnerability are not restricted to physical or mental characteristics of a person. Where applicants have a need for support but have no family or friends on whom they can depend they may be vulnerable as a result of another special reason.” [italics added]
At chapter 10.33 the Code recognises, as an example of a category of persons who may be vulnerable for another “special reason”, young people under the age of 25 (who do not otherwise qualify) who do not have a degree of support from family and friends, and may not have the ability to cope with the “practicalities and cost of finding, establishing and managing a home for the first time”.