Homelessness, housing duty and vulnerability

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

courthouseThe 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)

Housing matters at the Supreme Court-2

Another case coming up soon is Hotak v London Borough of Southwark. This case centres on the question “Is a vulnerable person still a vulnerable person in terms of housing needs if he has a family member to look after him?”

The background is more or less the opposite of bedroom tax craziness. Two brothers were living with a friend; one brother was looking after the other. The two were informed that this was overcrowding, and that they had to leave.

So they applied for housing assistance. The council agreed that they were “unintentionally” homeless, but the council didn’t consider the vulnerable brother a priority because his brother looks after him. (That essentially is a go-ahead for making them both homeless.)

The vulnerable party has learning difficulties, has self-harmed and has had symptoms of depression and post-traumatic stress disorder. He relies on his brother to be able to cope with life, including matters of personal hygiene.

Housing matters at the Supreme Court

The Supreme Court will soon deal with two interesting cases concerning housing law and homelessness. The one that has most of my attention is Aster Communities Ltd v Akerman-Livingstone.

court houseQuickly summed up, it is about a man whose specific medical condition (a psychiatric injury as a result of a series of traumatic stressors) led to his local housing authority wanting to evict him from his temporary home, and then rehome him somewhere else. I think I understand his housing authority’s reasoning (which sees this differently, namely as purely following the rules), as well as the tenant’s situation.

In 2010, Mr Akerman-Livingstone was homeless. He has a severe prolonged duress stress disorder (PDSD, which I explain at the bottom of this post). When he went to his local housing authority, the Mendip District Council, the Council accepted that it had a housing duty toward him, a vulnerable citizen with priority needs. It gave him a home.

It is not entirely clear to me whether his disability is generally accepted or not, but that does appear to be so. The Court of Appeal’s judgment states that ‘he is a very sick man’ under 2, but ‘even assuming that Mr Akerman-Livingstone is able to prove his disability to the full’ under 5. In 2010, the District Council agreed that it owed a duty to him as someone with priority needs. This means that the District Council accepted that he has a disability. In 2012, the District Council again accepted that Mr Akerman-Livingstone has this disability, when he applied to them again as he was being threatened with homelessness as a result of the eviction proceedings that are at the heart of this case. So his disability appears to be fully accepted.

Why is he being evicted, you ask? Was he was causing problems for neighbours or had he developed serious rent arrears? No. There were no problems. The underlying reason for the eviction is that the District Council saw his current flat as merely the man’s temporary home. He cannot continue to live in his current home, says the District Council, because it wants to be able to give his current home to someone else who is homeless (likely also on a temporary basis). One can reasonably ask why the District Council does not simply give the homes they offered to Mr Akerman-Livingstone to other persons who are homeless and let Mr Mr Akerman-Livingstone continue to live in his current home. Problem solved, one would think, but real life is rarely that simple.

The problem started when the District Council wanted Mr Akerman-Livingstone to leave his current home and choose a different property where he would then have to move to. Because of his disability, he could not cope with that idea and everything it involved. His uncooperative response was considered ‘rejection of offers of suitable accommodation’ although it is a direct result of his specific psychiatric condition. It is like faulting a blind person for nor passing a vision test, in this very specific case. If Mr Akerman-Livingstone had not had this specific psychiatric injury, he would not have had such a problem coping. Essentially, the man requires peace and quiet and needs to be left in peace. Anyway, the District Council gave up and considered itself released from its obligation to house Mr Akerman-Livingstone.

The District Council then asked the housing association (Aster Communities Ltd, formerly Flourish Homes Limited) to start eviction proceedings against Mr Akerman-Livingstone so that the District Council could give his home to a different homeless person. When the housing association did this, Mr Akerman-Livingstone (presumably someone acting for him as his solicitor) responded that this was discrimination against him because of his disability (the PDSD). That, so he said, was in breach of Section 15 of the Equality Act 2010.

The court had two options for dealing with this: to proceed to a full trial to decide about the discrimination issue and then rule on the eviction or deal with the matter summarily, that is, take the shortcut that takes up a lot less time and money and which is what usually happens in eviction proceedings.

Not surprisingly, Mr Akerman-Livingstone wanted a full trial. Equally unsurprising is that the housing association did not. On 7 June 2013, the sitting judge agreed with the housing association.

To be allowed a full trial, Mr Akerman-Livingstone needed to have a seriously arguable case (that is, a fighting chance to win that case) in the eyes of the judge (judge Denyer). The judge did not think so and ordered the immediate eviction. Mr Akerman-Livingstone’s lawyer filed an appeal against this, but that appeal was rejected on 14 October 2013 by a second judge, at the High Court. Next, Mr Akerman-Livingstone’s lawyer appealed against the decision of the second judge. That appeal was heard in London, at the Court of Appeal, by Lady Justice Arden, Lady Justice Black and Lord Justice Briggs.

The Court of Appeal felt that it needed to answer two questions:

  • Should there be a full trial or not?
  • What would Mr Akerman-Livingstone have to show to prove his case? That was needed in order to be able to answer the first question because if Mr Akerman-Livingstone’s lawyer would not be able to prove his case, then there is no obligation to hold a full trial to decide about the eviction.

Well, said the Court of Appeal, even ‘if Mr Akerman-Livingstone is able to prove his disability to the full’, if Aster can show that the eviction proceedings are ‘a proportionate means of achieving a legitimate aim’ in the sense of Section 15(1)(b) of the Equality Act 2010, there will not have been unlawful discrimination.

That said, the burden of proof is shared (Section 136 of the Equality Act 2010), continued the Court of Appeal, and that means that Mr Akerman-Livingstone ‘has to do no more than show that there are facts from which, in the absence of some other explanation, the court could conclude that Aster had discriminated against him.’

The Court of Appeal then looked at what the lower courts had done, and at what the European Court on Human Rights (located in Strassbourg, France) had said about related matters and similar cases. The Court of Appeal ended up agreeing with the judge who had sat in the High Court (the second judge, Justice Cranston). It felt that Mr Akerman-Livingstone’s case was not seriously arguable as his interests were not seen as heavily outweighing those of the housing association (proportionality).

The question as to what kind of tenancy Mr Akerman-Livingstone has did come up at some point, but is not important within this context.

First, Mr Akerman-Livingstone would have to show that to be evicted would amount to discrimination because of his condition (the PDSD).

Section 15 (Discrimination arising from disability) of the Equality Act 2010 says:

  • 15(1) A person (A) discriminates against a disabled person (B) if—
    (a) A treats B unfavourably because of something arising in consequence of B’s disability, and
    (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
  • 15(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

This shows that the case hinges on 15(1)(b). 15(1)(a) appears to be the case and 15(2) does not apply. If the housing association and the District Council had not known about Mr Akerman-Livingstone’s disability condition, it would have been impossible for them to be guilty of discrimination, as a person is not able to discriminate on the grounds of something he or she does not know. That was likely never a serious point of debate, as Mr Akerman-Livingstone had been given his current home in 2010 because the disability classified him as a vulnerable person with priority needs and in 2012, the District Council again accepted him as a person with priority needs.

It is often very hard to prove discrimination; that is why the burden of proof is shared (Section 136, Equality Act 2010), which means that the other party also has to show that it did not discriminate:

  • 136(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
  • 136(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

The real problem seems to be that it is the Housing Act that appears to be doing the discriminating – puts Mr Akerman-Livingstone at a disadvantage because of his disability – because it does not define ‘refuse’ and appears to contain no provisions for anyone who can be seen as ‘refusing’ an offer of housing when that ‘refusal’ is a direct consequence of a disability. In this case, the ‘refusal’ is an integral part of Mr Akerman-Livingstone’s disability. His condition led to the tick mark in that box that allowed the District Council to consider itself released of its duties toward Mr Akerman-Livingstone (which then in itself led to new duties, as the District Council releasing itself of its duties and starting eviction proceedings against him threatened to make him homeless again).

The man requires peace and quiet, not yet another upheaval and series of stressors. Moving home is one of the major life stressors, and the mere thought of having to decide on where he wants to move to next apparently already is too much for him. Moving home may aggravate his condition.

Frankly, I believe that the housing authority (the District Council) and housing association would have done a better job managing everyone’s resources including their own if the District Council had simply housed someone else in the properties offered to Mr Akerman-Livingstone and allowed Mr Akerman-Livingstone to continue to live in his current flat, as I already mentioned. Generally speaking, though, any party is free to choose to either carry out bad management or good management if it has the right to carry out that management and does not infringe on other parties’ rights.

There is another twist to the story. The head lessor is not Aster Communities Ltd but a property developer and the property developer apparently has asked Aster to deliver up the premises without any tenants in them. If that is the case, then the argument that the rights of other homeless persons are just as important as the rights of Mr Akerman-Livingstone might no longer apply (although the District Council’s new housing duties toward Mr Akerman-Livingstone appear to be less than what they were in 2010).

If it is indeed the case, however, that the District Council wants to evict Mr Akerman-Livingstone from his flat so that it can give the flat to someone else who is homeless, then in theory, it could end up rehoming Mr Akerman-Livingstone in the same flat from which he is being evicted (and that might even be with the head lessor as his new landlord, instead of Aster Communities Ltd).

Moreover, perhaps the District Council could have foreseen this course of events – in view of the man’s specific medical condition – when it housed the man in 2010. It could have prevented it. It could have given him a home it considered long-term housing and not just temporary. (It may not have been in a position to do that; it depends on the circumstances.)

It appears to be the housing and homelessness charity Shelter that is instructing the lawyers acting for Mr Akerman-Livingstone.

I am interested in the response from the Supreme Court. Decisions by the Supreme Court can have far-reaching consequences.

I emphasise that the above is just a general description of the background of this case. I also add that, unlike what the public may often think, justices and judges rarely have the freedom to apply their personal view and sometimes are forced to decide in a way they wish they did not have to. They have to take other cases into consideration, for example, and apply the law consistently.

—–

PDSD stands for Prolonged Duress Stress Disorder, but this is an outdated phrase. The correct name of the condition is Complex Post-Traumatic Stress Disorder or Complex PTSD. The current Diagnostic and Statistical Manual of Mental Disorders (DSM-5) considers PTSD a condition related to trauma and stressors, and includes Complex PTSD (or PDSD). DSM-5 was published on May 18, 2013. The previous edition of the DSM included PTSD but not the variant Complex PTSD, so I understand.

Someone with PTSD, complex or otherwise, can either be the victim or the witness of trauma. More specifically, it can concern:
1. Directly experiencing the traumatic event(s);
2. Witnessing the event(s);
3. Learning that the event(s) occurred to one or more close relatives or close friends;
4. Experiencing repeated or extreme exposure to aversive details of the event(s).

I guess you could see someone with Complex PTSD as someone who has been hit with a  baseball bat very badly, figuratively speaking, over and over and over, again and again, and who never got the chance to recover. That is just my lay person’s view, however.

See also this short later post.