Assessment of Priority Need Legal Test in Homelessness Law

Introduction

In the UK, the priority need legal test is statutorily provided by Housing Act 1996, Part VII, which puts legal duties on local authorities provide assistance to people threatened with or actually homeless. Other legislations that are relevant to this are the Homelessness Act 2002, the Homelessness Reduction Act 2017, and the Homelessness (Priority Need for Accommodation) (England) Order 2002. The latter has extended categories in priority need. All these legislations as well as authorities decided by the courts are discussed in this essay to critically evaluate whether the laws are failing the homeless people. This essay critically assesses the priority need legal test to evaluate whether the homelessness law and procedure are failing homeless people. The priority need legal test has been developed for the purpose of ensuring that a person who has a priority need of housing assistance, due to the factors that are already set out in the Housing Act 1996, would be given access to certain assistance by the local authority that addresses their homelessness either through temporary or permanent measures as the case may be. However, as this essay will establish, the priority need legal test does not allow the homelessness law to achieve the purpose of the homelessness laws, which is, to assist and aid vulnerable homeless people. Some of the most pressing issues due to which the priority needs legal test is not able to do justice to vulnerable homeless people is the discretionary nature of the decision making involved in different stages of making priority needs assessment and the priority need is based on the date of the decision and not on application.

Therefore, although the purpose of the priority need legal test can be clearly noted to be one that seeks to provide a means by which the local authority may be able to assess whether it has a duty to support an individual in preventing or relieving their homelessness, and a duty to provide temporary or permanent accommodation for such an individual. Helen Taylor has noted that the use of priority needs legal test as well as the other tests used by the local authorities to assess the nature of their duties to homeless people is as per the “legal rights-based approach to homelessness” taken by the UK so as to place “legal duties on local authorities to act in certain ways when an individual is homeless.”

Law and procedure for priority need assessment

In this part, the essay discusses the relevant law and procedure related to the priority need legal test and what it is trying to achieve. At the outset, it may be noted that s 188(1) of the Housing Act 1996 makes it incumbent for the local authority to provide housing to an applicant if they have reason to believe that the applicant may be homeless, is eligible for assistance and have a priority need.

Certain persons who are able to establish that they have priority need, would receive access to interim or temporary accommodation when they apply for homeless assistance, access to longer term accommodation if they are unintentionally homeless and in priority need in situations where the local authority accepts a full housing duty towards them, or access to short term accommodation if they are intentionally homeless but are eligible for assistance

---

1. Helen Taylor, Approaches to the use of priority need testing in UK Homelessness Legislation (Cardiff Metropolitan University 2019) 3.
2. s188 (1) Housing Act 1996.
3. s193 Housing Act 1996.

and in priority need. The difference between those homeless people who satisfy the priority need legal test and those who do not is that while the former would be entitled to assistance from the local authority for addressing the problem of their homelessness, the latter would only receive advice and assistance but not accommodation.

Priority need is one of the tests that is used to assess whether a homeless person is entitled to any housing assistance by the Council, and if so then what kind of housing are they entitled to. Certain categories of people, like a homeless person with children, or homeless person aged 16 or 17, to name a few, are automatically in priority need. Then there are certain groups of people who are required to convince the local authority that they are 'vulnerable' in order to be in priority need. This is provided under s189 Housing Act 1996, which notes that a homeless person may be 'vulnerable' in case of old age, mental illness, physical disability, been in care (and now 21 or over), been in the armed forces, been in custody, been in actual or threatened violence, or any other special reason.

Therefore, in case a person does not fit the automatic categories of priority need, they may still be able to persuade the local authority that they are in priority need, if they come within one of these categories mentioned earlier. In such cases, there are certain duties that are to be fulfilled by the local authority, including prevention duty, which is undertaken with households who are threatened with homelessness within 56 days; relief duty, which is to be undertaken for households who are assessed as homeless within 56 day period, and priority need test for individuals whose homelessness has not been relieved through prevention or relief duties within 56 days.

The local authority has a ‘full housing duty’ to provide accommodation if the person applying meets the key tests, which includes priority need of the person. In order to assess its duty, the local authority has to assess if the person is eligible under s.189A, and also a duty to agree a plan under s189A. The local authority may have a prevention duty to take reasonable steps to help prevent their homelessness under s.195. In the event that the local authority has reason to believe that the applicant may be homeless, have a priority need and be eligible for assistance, then duty to provide accommodation arises under s188(1) HA 1996. The Homelessness (Priority Need for Accommodation) (England) Order 2002/2051, makes it clear as to which persons will be considered to have priority need: children aged 16 or 17, young people under 21, and vulnerable people as described in para 5 and 6. Although this appears to be clear descriptive as to who would be considered priority need, the procedure for the assessment of such vulnerability may lead to some gaps; more importantly, the ways in which the authorities may use discretion based decision making and the vulnerability tests, may leave scope for failure to provide relief to homeless people who are vulnerable.

In R v Islington, the claimant was first informed that the council accepted that they owed him a duty under section 189B, but refused to give homelessness

---

4. s190 (2) Housing Act 1996.
5. National Homelessness Advice Service, ‘Vulnerability and priority need: advising clients’ accessed < https://www.nhas.org.uk/docs/Hlink_Vulnerability_Assessment_Guide.pdf >
6. s189 Housing Act 1996.
7. Taylor, Approaches to the use of priority need testing in UK Homelessness Legislation, supra n 1.

assistance by notifying him that he was not considered to be in priority need. The court held that the council made an incorrect decision that their duty had ended when s188(1) duty ends in accordance with subsections (1ZA) to (1A), and therefore, the duty will end under if the authority have made a decision that they do not owe an applicant the duty under section 189B(2). This case relates to the procedural aspects of priority need test and makes it incumbent to notify the claimant that the s.188 duty to an end in circumstances where the relief duty is owed but an applicant is found not to have a priority need.

Critical assessment of law

In this part, the essay discusses whether the relevant law and procedure related to the priority need legal test is failing homeless people.

One of the important concerns that have been noted in literature regarding the use of the priority need test is that it allows discretion to the local authorities; it is particularly notable that the implementation of the priority need testing is itself reliant on discretionary decision-making. Discretionary decision-making is common within social welfare and administrative justice, and affects homelessness decisions. Because there is a discretionary element to decision making in this regard, it has been pointed out that such discretionary decision making can be based on “socially constructed” decisions on vulnerability; thus, decisions may be influenced by external pressures such as if housing is available or not, or internal pressures such as individual values. Thus, this available of discretion for the local authorities lends to an argument that at times decisions may be made on subjective criterion that has little to do with the objective fact of the person being homeless and vulnerable. Research with frontline workers has suggested that there is a definite impact of such subjective factors like the influence of supervisors and individual values in how discretionary decision-making regarding construction of vulnerability regarding homelessness may be made.

The pitfalls associated with the ways in which vulnerability may be constructed can be demonstrated with the way in which the Pereira test was developed through authorities and later discarded by the Supreme Court in Hotak v. LB Southwark. The Pereira test allowed the use of comparator for assessing whether vulnerability in the situation merited assistance; this was done by using an ‘ordinary homeless person comparator’ where the homeless person had to be established as less able to fend for himself than an ordinary homeless person. In other words, individual housing officers were required to judge whether individuals are more or less vulnerable than an ordinary homeless person; the

---

8. R. (on the application of Mitchell) v Islington LBC [2020] EWHC 1478 (Admin).
9. Taylor, Approaches to the use of priority need testing in UK Homelessness Legislation, supra n 1, 10.
10. Ibid.
11. Joanne Bretherton, Caroline Hunter and Sarah Johnsen, ‘You can judge them on how they look...’ Homelessness Officers, Medical Evidence and Decision-Making in England’ (2013) 7(1) European Journal of Homelessness 69, 70
12. Taylor, Approaches to the use of priority need testing in UK Homelessness Legislation, supra n 1.
13. Alden S, ‘Discretion on the frontline: The street level bureaucrat in English statutory homelessness services’ (2015) 14(1) Social Policy and Society 63.
14. Hotak v. LB Southwark; Kanu v. LB Southwark; Johnson v. Solihull MB [2015] UKSC 30.

Supreme Court disapplied the use of the test on the ground that it was measuring vulnerability of a homeless person against an already extremely vulnerable benchmark. However, the point is that for years the test continued to be applied by officers to assess the vulnerability and need of the homeless person.

Indeed, even with the judgment of Panayiotou and Smith, although a degree of clarity as to how to approach the assessment of vulnerability is provided there is still an emphasis on the comparator test where a person will be assessed for vulnerability based on whether he is more at harm than another ordinary person, which may lead to replacement of one kind of imprecise formulation of test with another as noted by Lord Hughes.

There are a number of other authorities that can be cited here to show how the authorities use of discretionary powers to assess vulnerability can be problematic. In the Covid 19 pandemic for example, the court has allowed the local authority to reach a review decision under the Housing Act 1996 that the appellant is not in priority need because of the COVID-19 pandemic. Moreover, the local authority’s assessment as to whether someone is in priority need is based on the date of the decision and not on application, which may mean that while circumstances change so that the local authority is not anymore required to provide assistance, the period in between when the person actually needed assistance may not have seen any assistance given to them. This is the reason why courts have stressed on the need to avoid improper delay of decision.

As there is lack of conclusive tests that can be applied by the authorities for assessing need of the applicants, there are at times decisions taken which affect the homeless people adversely and the decisions are later established in the courts as being incorrect. In this respect, courts have from time to time provided principles to guide local authorities to make decisions; for instance, in cases involving children, the court has noted that the question for the local housing authority is whether the child is dependent and not whether the child is wholly and exclusively dependent upon the applicant. Nevertheless, the very question of dependency is noted to be fact-sensitive so that it leaves discretion on the local authorities to assess on facts whether a child may be dependent or not.



Another issue with regard to the decision making of ‘vulnerability’ for assessing priority need legal test, tis that it can at times requires consideration of medical evidence. Such assessments are made by homelessness officers and research

---

15. Panayiotou v Waltham Forest London Borough Council; Smith v Haringey London Borough Council [2017] EWCA Civ 1624.
16. R v Golds [2016] UKSC 61.
17. Kyle Bankole-Jones v Watford Borough Council [2020] EWHC 3100 (Admin
18. R. v Kensington and Chelsea RLBC Ex p. Amarfio [1995] 2 F.C.R. 787; (1995) 27 H.L.R. 543.
19. Mohammed v Hammersmith and Fulham London Borough Council [2001] UKHL 57, [2002] 1 AC 547, HL.
20. R v Lambeth London Borough Council ex p Vagliviello (1991) 22 HLR 392, CA.
21. McGrath v Camden London Borough Council [2007] EWCA Civ 1269.
22. Joanne Bretherton, Caroline Hunter and Sarah Johnsen, ‘You can judge them on how they look...’ Homelessness Officers, Medical Evidence and Decision-Making in England’ (2013) 7(1) European Journal of Homelessness 6

has suggested that there may at times be bias against some high need groups and inconsistency in decisions because the homelessness officers do not only base their decisions on the ‘expert’ medical evidence put to them, but also their intuition and judgement. In this context again, the assessment is whether a person is more vulnerable than an ordinary homeless persons. What research shows is that officers may give more weight to some experts over others in determining the nature of medical evidence for assessing vulnerability. Therefore, there is a possibility that the assessment of vulnerability becomes a reason for exclusion of some people from assistance.

The definition of vulnerability is simple and straightforward as noted by Waller LJ in R v Waveney DC, ex parte Bowers, however it is the one aspect of assessment of priority need legal test that has proved to be most problematic because of the discretionary nature of the decision making and the different factors that may affect decisions. Even after the decision in Hotak, it has been noted that the deficiencies of the approach adopted in Bowers and Pereira have not been addressed. Finally, the problem of how priority need test affects refugees who are also vulnerable groups, needs to be considered. As pointed out in literature, refugees are not recognised as ‘priority need’ only because they are refugees. This means that refugees are often deprived of housing assistance under s188 even though they are vulnerable.

Conclusion

To conclude, although the law appears to have the purpose of providing support to homeless people who are in priority need or are vulnerable, the way in which decision making powers are provided to the homelessness officers and local authorities makes it difficult to achieve the purpose. Homeless people may be denied opportunities to receive assistance even when they are vulnerable because of the way vulnerability is assessed. Therefore, it can be said that the law is failing the homeless people.

Table of cases Hotak v. LB Southwark; Kanu v. LB Southwark; Johnson v. Solihull MB [2015] UKSC 30. Kyle Bankole-Jones v Watford Borough Council [2020] EWHC 3100 (Admin). McGrath v Camden London Borough Council [2007] EWCA Civ 1269. Mohammed v Hammersmith and Fulham London Borough Council [2001] UKHL 57, [2002] 1 AC 547, HL. Panayiotou v Waltham Forest London Borough Council; Smith v Haringey London Borough Council [2017] EWCA Civ 1624. R. v Camden LBC, ex p Pereira (1998) 31 HLR 317, CA. R v Golds [2016] UKSC 61.

---

23. Ibid.
24. R. v Camden LBC, ex p Pereira (1998) 31 HLR 317, CA
25. Bretherton et al, You can judge them on how they look...’, supra n 11.
26. R v Waveney DC, ex parte Bowers [1993] QB 238.
27. I Loveland, ‘Changing the meaning of ‘vulnerable’ under the homelessness legislation?’ (2017) 39(3) Journal of Social Welfare and Family Law 298.
28. Ibid.
29. Lavinia Mitton, ‘The newly-recognised refugees most at risk of homelessness in England’ (2021) 50(1) Journal of Social Policy 59
30. Ibid.

R. (on the application of Mitchell) v Islington LBC [2020] EWHC 1478 (Admin).

R v Lambeth London Borough Council ex p Vagliviello (1991) 22 HLR 392, CA.

R. v Kensington and Chelsea RLBC Ex p. Amarfio [1995] 2 F.C.R. 787; (1995) 27 H.L.R. 543.

R v Waveney DC, ex parte Bowers [1993] QB 238.

Books

Taylor H, Approaches to the use of priority need testing in UK Homelessness Legislation (Cardiff Metropolitan University 2019). Journals

Alden S, ‘Discretion on the frontline: The street level bureaucrat in English statutory homelessness services’ (2015) 14(1) Social Policy and Society 63.

Bretherton J, Caroline Hunter and Sarah Johnsen, ‘You can judge them on how they look...’ Homelessness Officers, Medical Evidence and Decision-Making in England’ (2013) 7(1) European Journal of Homelessness 69.

Loveland I, ‘Changing the meaning of ‘vulnerable’ under the homelessness legislation?’ (2017) 39(3) Journal of Social Welfare and Family Law 298.

Mitton L, ‘The newly-recognised refugees most at risk of homelessness in England’ (2021) 50(1) Journal of Social Policy 59.

Websites National Homelessness Advice Service, ‘Vulnerability and priority need: advising clients’ accessed < https://www.nhas.org.uk/docs/Hlink_Vulnerability_Assessment_Guide.pdf >