Today is the third of three days at the Supreme Court that focus on homelessness, housing duty and vulnerability (or rather, priority).

The three cases are:
– Hotak (Appellant) v London Borough of Southwark (Respondent)
– Johnson (Appellant) v Solihull MBC (Respondent)
– Kanu (AP) (Appellant) v London Borough of Southwark (Respondent)

(Interveners in all three cases:
Equality and Human Rights Commission, Shelter, Crisis and the Secretary of State for Communities and Local Government.)

What is it all about? Predominantly 189(1)(c) in the Housing Act 1996:

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 be 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—

(a) specify further descriptions of persons as having a priority need for accommodation, and

(b) amend or repeal any part of subsection (1).

(3) Before making such an order the Secretary of State shall consult such associations representing relevant authorities, and such other persons, as he considers appropriate.

(4) No such order shall be made unless a draft of it has been approved by resolution of each House of Parliament.

Hotak is a pretty straightforward case, at first sight; the two other cases are less clear. Hotak concerns two brothers, one of which (Sifatullah) would certainly be considered vulnerable if the other one (Ezatullah) had not said that he would look after his brother. The brothers were living in a friend’s flat in Southwark, but told to leave because of overcrowding. Ezatullah’s immigration status at the time, however, made him ineligible for housing assistance.

Southwark did give the brothers temporary housing while it made its mind up. It decided that Sifatullah was unintentionally homeless, and eligible for assistance, yet did not consider him vulnerable in terms of in priority need of housing because his brother was looking after him. This is where the case went off the rails.

If Sifatullah were a pregnant woman, unintentionally homeless (as it is called), and eligible for assistance, whether the person with whom she resides or might reasonably be expected to reside supports her or not makes no difference, as one of the lawyers highlighted on Monday.

Another one pointed out that the law does not contain an element of comparison. A person’s own condition makes him or her relatively vulnerable when on the street, and the law had the intention of preventing and eliminating all homelessness. This would mean that a) there is no such thing as “an ordinary street-homeless person” (used by Southwark to compare Sifatullah against) and b) one could say that being homeless in itself already points toward a person being less able to fend for himself or herself, as homelessness is not the norm in this country.

It looks like the practice of the application of this legislation – carried out by the decision-making housing officer – has been moving toward comparing a blind applicant with street-homeless blind applicants, deaf applicants with street-homeless deaf applicants, mentally ill applicants with street-homeless mentally ill applicants, applicants with substance abuse with homeless people with substance abuse.

More specifically, practice seems to be more and more relying on the premise that all homeless persons are, almost by definition, street-homeless mentally ill and/or substance abusers and/or physically ill, deserving no special protection (in Johnson, for instance). The law was not intended that way. The law does not even say anything like this.

The pregnant woman, however, is never compared with other pregnant women to determine her vulnerability. The same applies to any persons who have lost their home in a flood.

“Ideas about vulnerability are perhaps most often applied by those in more powerful positions to define those in less powerful ones.” (Kate Brown)