Murky waters: the ongoing evolution of vulnerability under section 189 of the Housing Act 1996

n the latest instalment of a long line of Pt VII Housing Act 1996 "vulnerability" cases, Mrs Justice Rose observes—seemingly in jest—that perhaps "old Pereira habits die hard". We agree. In the wake of Hotak and Panayiotou, the judgment in Rother demonstrates the continuing challenge of what HH Judge Luba QC described in the course of oral argument in Johnson 5 as "drinking from the pure waters" of s.189(1)(c) of the Housing Act 1996; avoiding the "dangerous … glossing" of the "primacy of the statutory words" that has characterised the interpretation of "vulnerability" in priority need homelessness assessments. Many of those key problems that characterised the "steady stream" of case law in the Pereira test live on with reference to this new Hotak formulation, albeit in a diluted form. In trying to get back to "those plain words" of s.189(1)(c), the pure waters still look decidedly murky. In this case comment, we outline the facts and key focus of the court’s decision in Rother, before reflecting on three further issues: 1) the use of external medical advisors; 2) the lack of consideration of s.149 of the Equality Act 2010; and 3) the position in Wales following the Housing (Wales) Act 2014.