A victim of human trafficking for the purpose of sexual exploitation should usually be considered vulnerable. More so if they suffer from mental health problems that require specialist support as a result of their experiences.
The UK Supreme Court has recognised that there is a growing need for victims to be protected and has shown sympathy in that direction. [1]
But when ‘GS’, a homeless single woman from Albania whose case had all of the above features, approached the London Borough of Waltham Forest for accommodation, they refused. The local authority found she was not “vulnerable” within the meaning of section 189 of the Housing Act 1996.
R (GS) v London Borough of Waltham Forest [2016] EWHC 1240 (Admin) is a stark illustration of the competing pressures on local authorities balancing unprecedented demand for housing stock against the need to operate sensitive policies towards certain groups, such as trafficking victims.
The refusal of GS’ claim for assistance meant that instead of owing her the ‘full homelessness duty’ to secure suitable accommodation, Waltham Forest owed her the lesser duties contained in section 192 of the 1996 Act:
- Advice and assistance: section 192(2) and (5);
- A discretion to secure accommodation: section 192(3);
- A housing needs assessment prior to giving any advice and assistance: section 192(4).
GS brought a legal challenge, arguing that the local authority had failed to comply with its obligations under section 192 of the 1996 Act. (Her challenge against the finding that she was not “vulnerable” was also proceeding in the Court of Appeal).
To cut several long, convoluted and overlapping stories short, the High Court agreed with her.
Where the local authority decision-making went wrong was its failure to make a “housing needs assessment” before taking a decision under section 192(3) on whether to offer discretionary accommodation. Unlike in previous cases [1], such a needs assessment could not be implied from a fair reading of the various decision letters (see § 101).
Linked to the first error, the local authority could not lawfully discharge the duty to provide advice and assistance because no needs assessment had taken place beforehand to inform the advice and assistance given.
Confusingly, the local authority also argued that it had not even made a discretionary decision under section 192(3) and that they were not obliged to make such a decision at that early stage of the process. This argument was rejected (see § 90).
On the time at which the duties in section 192 of the 1996 Act arise, the Court clarified that when a local authority is satisfied that an individual is homeless and eligible for assistance but has no priority need, the duties in section 192 (to provide advice and assistance and the discretionary power to accommodate) arise at that point. Later reviews of the decision do not affect this position (see §§ 127 – 131).
The local authority’s parting shot was that even if its decisions were unlawful, the entire claim was misconceived because GS should have challenged the decisions in the County Court rather than a judicial review in the High Court.
The argument fell wide of the mark.
Public law has long recognised that the existence of a duty and its exercise are two separate questions that may call for different remedies.
A statutory appeal to the County Court deals with the existence of the duty. It does not concern whether any duties have been lawfully exercised. Judicial review was therefore the appropriate action (§ 137).
[1] See for example, Hounga v Allen [2014] UKSC 47 at § 52 in Lady Hale JSC’s judgment.
[2] R (Savage) v Hillingdon LBC [2010] EWHC 88 (Admin) at §§ 51 and 55.
