In Hotak, the Respondent (Southwark Council) indicated s.21(1)(b) of the National Assistance Act 1948 gave the power to social services authorities to provide: “… temporary accommodation for persons who are in urgent need thereof, being need arising in circumstances which could not reasonably have been foreseen or in such other circumstances as the authority may in any particular case determine.”
In a joint circular from the Departments of the Environment, and Health and Social Security issued on 7 February 1974, the Government declared its objective of shifting the responsibility for providing temporary accommodation to the homeless from social services to housing authorities, where the burden properly lay under powers bestowed in Part V of the Housing Act 1957, save in the case of sudden large scale emergencies beyond the resources of the housing authority.
At paragraphs 8-12 the circular identified those who it was proposed should form the priority groups in this shift of responsibility:
8. Homelessness is almost always the extreme form of housing need. The Government believes that all those who have no roof, or who appear likely to lose their shelter within a month, should be helped to secure accommodation by advice, preventative action or, if these are not enough, the provision permanently or temporarily, of local authority accommodation.
9. It should be possible to extend some form of help to all who are homeless, whether families with children, adult families or people living alone. In areas where the housing situation is particularly difficult, however, it will not be possible to help all to the same extent and first claim on the resources available must be given to the most vulnerable, referred to in this circular as “Priority Groups”.
10. The Priority Groups comprise families with dependent children living with them, or in care; and adult families or people living alone who either become homeless in an emergency such as fire or flooding or are vulnerable because of old age, disability, pregnancy or other special reasons.
11. For these Priority Groups the issue is not whether, but by what means, local authorities should provide accommodation themselves or help those concerned to obtain accommodation in the private sector. Authorities will not wish to add the stress of uncertainty to the other stresses of those facing homelessness; and where a family or someone else in a priority group seems certain – despite their own efforts and those of the council – to lose their roof, the authorities should accept an obligation at least 7 days before the event and should tell the applicants that they will, in fact, secure accommodation for them.
12. Where a family has children there is no acceptable alternative to accommodation in which the family can be together as a family. The social cost, personal hardship, and long term damage to children, as well as the expense involved in receiving a child in care rules this out as an acceptable course, other than in the exceptional case where professional social worker advice is that there are compelling reasons apart from homelessness for separating children from their family; the provision of shelter from which the husband is excluded is also not acceptable unless there are sound social reasons as, for example, where a wife is seeking temporary refuge following a matrimonial dispute and it is undesirable that she should be under pressure to return home.”
The circular did not bring about the desired result nationally and the Housing (Homeless Persons) Act 1977 was enacted. Homelessness functions were removed from social services and the obligation placed unequivocally on the housing authority. Section 2(1)(b) (although not section 2(1)(a)) of the National Assistance Act 1948 was repealed by schedule 1 to the 1977 Act. Section 2 of the 1977 Act provided:
“(1) For the purposes of this Act a homeless person or a person threatened with homelessness has a priority need for accommodation when the housing authority are satisfied that he is within one of the following categories:
(a) he has dependent children who are residing with him or who might reasonably be expected to reside with him;
(b) he is homeless or threatened with homelessness as a result of any emergency such as flood, fire, or any other disaster;
(c) he or any person who resides or might reasonably be expected to reside with him is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reasons.
1) For the purposes of this Act a homeless person or a person threatened with homelessness who is a pregnant woman or resides or might reasonably be expected to reside with a pregnant woman has a priority need for accommodation.”
These provisions of the 1977 Act were subsequently consolidated into Part III of the Housing Act 1985. Section 59(1) of the 1985 Act was, as observed, in identical terms to the present section 189(1) of the 1996 Act.
It is submitted that from its inception the legislation has distinguished between the qualifying standard for families with children and pregnant women, for whom priority need is assumed, and other individuals who may qualify by reason of their vulnerability. In the latter case, the Court of Appeal resolved as long ago as 1982 that the exercise was a comparative one. In Waveney District Council ex parte Bowers the Court held that the test was whether the applicant was (for one or more of the statutory reasons) “less able” to fend for himself so that injury or detriment would result when a less vulnerable man (later, an average or ordinary homeless person) would be able to cope without harmful effects.
The questions are whether:
(1) the applicant when homeless is less able to fend for himself than the average homeless person so that
(2) injury or detriment to him will befall him which would not befall the average homeless person must be answered by reference to all the applicant’s circumstances.
The relevant personal circumstances include sources of assistance available to the applicant which render him no worse off than the average homeless person.
It is argued that s.189(1) does not reveal a legislative policy favourable to both members of the household to the exclusion of an examination whether the qualifying applicant is vulnerable in all the circumstances. S.189(1)(c) gives to a person who resides with a vulnerable person an equal right only if that other person is “vulnerable”. If a person is not vulnerable and would not be vulnerable by reason of the support he would receive, while street homeless, of a person with whom he is currently living, then neither has the right to be treated as having a priority need.
If, on the other hand, even with that support the qualifying applicant would be vulnerable if street homeless, then both are in priority need (c.f. the speech of Lord Griffiths in R v Tower Hamlets London Borough Council ex parte Ferdous Begum  AC 509 at page 519F-G). It is acknowledged that if a supporter chose to cease supporting the qualifying applicant the Council would have to make an assessment of vulnerability on that factual basis. But that is not an argument, for assessing vulnerability in fictional rather than actual circumstances. If circumstances change, a safety net is present in the form of a fresh application based upon the changed circumstances.