Housing law has seen a lot of action in the last year. There have been cases about which council is liable for social care when one council has placed a family out of area for what’s known as the Temporary Housing duty; and another one about the extent to which a council can even ‘post’ people a long way from their current setting, under the Housing Act.
But the most important case has been one which has changed the correct approach to a central concept in who is owed a housing duty: that of vulnerability and priority need. It’s called Hotak.
Housing officers had been encouraged to treat people with obvious needs in this manner, as being lawful: “You are not vulnerable, because you are no more vulnerable than the usual run of street homeless people in our locality”. They had been doing this so as to focus on housing the most vulnerable, locally, and the court in Hotak, has said no – in fact the council’s duty is to house any vulnerable person (subject to the other criteria of eligibility, homelessness and not being intentionally homeless, of course.) The long standing est in Pereira, decided in 1999 has been overridden, and the court has reiterated that the duty is not affected by the shortage of housing or other financial resources available to the council. A duty is a duty, after all.
That message will have a positive effect for Care Act duties are interpreted, and is a good sign of robustness in the judicial approach to duties as opposed to discretions.
It’s all the more important for people now working in First Contact roles or Advice and Information roles to be aware of (or ideally offering a co-ordinated steer in relation to) the interface between housing and social care rights – because securing housing in specialist but unregistered accommodation or ordinary housing association properties through nomination rights, can be something that the Housing department organises – by dint of an evidence basis about vulnerability, disability, priority need etc, by social work or care management staff.
Legal Aid lawyers with a Housing ticket from the Legal Aid Agency are permitted to assist people with Care Act issues, if the person is homeless or threatened with homelessness – through an amendment to the Legal Aid legislation found in the Care Act and Children and Families Act, which is a good way of ensuring that some more lawyers embrace community care law. So there is some hope for legal challenge!
What does the Hotak case say?
H and the other people in the cases heard together were all homeless and male. The Housing Act defines as being in priority need, people who are vulnerable as a result of old age, mental illness or handicap, or physical disability or other special reason, and there is no comparator specified.
Merely being homeless does not constitute priority need, and nor does simply being old or ill or disabled. But if those issues put one at greater risk of harm than an ordinary person who was homeless, then that was enough. If a person was disabled or had some other protected characteristic under the Equality Act, then a housing authority bound by the public sector equality duty in that Act needed to give the case heightened scrutiny.
From now on, the comparator is to be an ordinary person, who is in need of accommodation, not ordinary homeless or street homeless people, or people in the particular locality.
Vulnerability connotes significantly more vulnerable than ordinarily vulnerable.
‘Significant’ connotes ‘more than minor or trivial’, or ‘substantial’.
If a person has a carer or family member to help them, that is relevant to vulnerability, but only if the existence of that person obviates the vulnerability altogether, not because the need centres upon something that the carer or relative can achieve for the person. if the vulnerability is not wiped out altogether by the help, the person’s supporter can then be housed with the individual deserving of being found to be vulnerable.
Which comes first, housing or social care, in terms of legal hierarchy?
The answer to that is easy! it’s the housing duty. Section 23 of the Care Act makes that clear.
In practice, however, the courts have always allowed the notion of what is a reasonable time for discharging the homelessness duty to a vulnerable person in priority need, to be extended, massively, by reference to how very hard it is to find suitable accommodation for people.
It is that fact which means that in practice, integrated or singular adult social care teams may well have no option but to accept that they must use the Social Care department’s resources, and statutory powers or duties, temporarily, rather than those open to their local Housing colleagues, in order to manage the risk to the person’s wellbeing in the meantime.
There will therefore continue to be some people who need to be placed in care homes, or boosted into units in social housing, where Social Care holds the nomination rights, on account of the extremity of their needs. That question is no longer determined by FACS, but by the eligibility criteria regulations (inability to achieve two or more domains plus consequential significant impact). The fact that access to a roof over the head of the person may be the only way of meeting the need is not a question relevant to eligibility but only to care planning and commissioning!
The duty in the Care Act to co-operate with other councils or one’s own colleagues comes into play here, see s6 (4)(b) for specific reference to housing authorities and colleagues. Arrangements must be made for co-operation and all councils should have reviewed their relations in this sphere by now, for practicality and smoothness. This d should ensure that an embarrassing flow of case law about warring teams as to whose job someone’s situation really is, and whether Adult Social Care functions ARE the only way of meeting the need, is limited…
Impact on training and education
Someone (preferably more!) in a unitary or county and district council set-up needs to know about both adult social care law and housing law, it seems to me, in order to ensure that this interface operates fairly and is realistically manageable.
My training team provides specialist half days and whole days about the relationship and we are always up to date. (Sorry for advertising, but we have to make a living!). Email [email protected] if you can see the sense of getting us in.