National Homelessness Advice Service July 2021

Vulnerability and priority need:

advising clients
A guide for frontline advisers supporting single people making a
homeless application where there may be an issue about priority
need
If your organisation is a member of the National Homelessness Advice Service (NHAS),
you can call the NHAS Housing Consultancy Line to seek further advice and support
when using this guide – telephone 0300 330 0517 Monday to Friday 9am to 6pm or via
webchat at nhas.org.uk.

Contents

1. What is priority need? ............................................................................................... 2

2. Why is priority need important? ............................................................................... 3
4. Guidance for clients who are making a homeless application ............................... 6
5. What to do if the local authority refuse to take a homeless application or take an
application but refuse to provide interim accommodation because they say your
homeless client is ‘not in priority need’. .................................................................. 7
6. What to do if the local authority makes a decision that your homeless client is
not in priority need .................................................................................................... 7
7. What to do if the local authority review upholds the decision that your client is
not in priority need. ................................................................................................... 9
Appendix 1. The assessment of vulnerability: some key points .................................. 11
A. The old approach ..................................................................................................... 11
B. The new approach outlined by the Supreme Court and Court of Appeal ............ 11
Appendix 2: Relevant law in relation to vulnerability and priority need ...................... 14
A. Housing Act 1996..................................................................................................... 14
B. Equality Act 2010 ..................................................................................................... 14
Appendix 3: Covid 19, vulnerability and priority need .................................................. 16

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1. What is priority need?

Priority need is one of the tests which a homeless person needs to pass for the local
authority to decide what help with housing they might be entitled to. Other tests include
whether the person is eligible for homeless assistance in terms of their immigration status,
actually homeless, homeless through no fault of their own or intentionally homeless and has
a local connection with the local authority where they are making their application.

The following people are automatically in priority need:

• A pregnant woman or any person living with a pregnant woman

• Households with children who live with them or who might reasonably be expected to
reside with them.

• 16 and 17 year olds who are not being looked after by social services under the Children
Act 1989

• 18 – 20 year olds (other than some students) who at any time between 16 and 18 were,
but are no longer, looked after, accommodated or fostered

• Any person who has lost their accommodation as a result of an emergency (e.g. fire or
flood or other disaster)

• A person who is homeless as a result of that person being a victim of domestic abuse

People who have experienced domestic abuse no longer have to show that they are
vulnerable as a result, but will need to show that they have become homeless as a result
of that abuse. Whether they are homeless will defined by s175-177 Housing Act 1996,
which includes consideration of whether it is reasonable for the person to continue to
occupy accommodation in light of the risk of domestic abuse.

Other than this a single person will usually have to persuade the local authority that they
are 'vulnerable' in order to be in priority need.
A homeless person may be 'vulnerable', in the words of s189 (1) (c) Housing Act 1996 and
the Homelessness (Priority Need for Accommodation) (England) Order 2002, as a result
of:
o old age
o mental illness
o mental handicap
o physical disability
o having been in care (and now 21 or over)
o having been in the armed forces
o having been in custody
o having fled actual or threatened violence or
o other special reason

The words ‘other special reason’ show that vulnerability arising from other causes (e.g.
being a refugee) must be considered by the Local Authority Homeless Service.

In June 2020 the statutory Code of Guidance was amended to include 2 further groups of
people who may be considered vulnerable for another special reason -- in this case as a
result of the Covid-19 pandemic.

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 o applicants who have been identified by their GP or a specialist as clinically
extremely vulnerable are likely to be assessed as having priority need. The
vulnerability of applicants who not on that list but are at increased risk should
also be considered in the context of Covid-19. See Appendix 3

o people with a history of rough sleeping might be considered vulnerable in the

context of COVID-19, taking into account their age and underlying health
conditions. See Appendix 3 for the meaning of ‘a history of rough sleeping’.

For further information see Chapter 8 on priority need in the Code of Guidance.

2. Why is priority need important?

If a person is homeless, eligible for homeless assistance AND in priority need the
local authority may have the following duties:
(1) to provide interim or temporary accommodation when the person applies
for homeless assistance. The local authority must simply have 'reason to
believe' that they are homeless, eligible for homelessness assistance and in
priority need for this duty to arise. This duty continues until the later of the
following:-
- local authority has notified the applicant that no relief duty is owed or
- the local authority has sent a decision letter setting out what accommodation
duties they do owe or
- the relief duty has been brought to an end. (s188 (1ZB))

This duty to accommodate will also continue where an applicant in priority need
has requested a review of the suitability of accommodation in connection with a
final offer of accommodation or a final Part 6 offer made under the relief duty.
(s188 (2A))

(2) to secure longer term accommodation for someone who is unintentionally

homeless and in priority need. This duty arises when the local authority
accepts a full housing duty towards them. (s193)

(3) to secure longer term accommodation for someone who is unintentionally

homeless and in priority need but who the local authority has decided has
deliberately and unreasonably refused to co-operate with the reasonable
steps they were asked to take to secure housing under the relief duty (s193B
and s193C)

(4) to provide short term accommodation for a homeless person who is

intentionally homeless but is eligible for assistance and in priority need.
Under this duty the local authority is obliged to provide accommodation to give
the homeless person a reasonable amount of time to find accommodation for
themselves. (s190 (2))

Where a person is not in priority need the local authority will still have duties:

• The Prevention Duty. If a person is threatened with homelessness within 56 days

and eligible for homeless assistance the local authority will have a duty to help
prevent them from becoming homeless and help them to keep their current
accommodation: s195 Housing Act 1996 as amended by the Homelessness
Reduction Act 2017 (HRA).

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• The Relief Duty: If a person is homeless and eligible for homeless assistance the
local authority will have a duty to help them secure housing for at least 6 months
(s189B Housing Act 1996 inserted by the HRA 2017).

3. The Initial Interview

When advising and assisting your client they may need help to show the local authority
how they might meet the ‘vulnerability’ priority need criteria for homeless assistance. Key
pointers are:

• Awareness of how the definition of vulnerability has been interpreted by the

Supreme Court and the Court of Appeal. Their judgments help us decide how to think
about vulnerability so that we can ask the client the right questions and they can give
relevant information to the local authority. See the main points from their judgments
in Appendix 1.

• Aim is to encourage the client to draw out and present all the relevant information
about their lives and circumstances to the Homeless Service who will assess whether
or not they are vulnerable.

• Focus on the impact of homelessness on the client when compared to a `robust and
healthy' ordinary person if rendered homeless i.e. how they are more at risk.

Being old, for example, by itself does not mean someone is vulnerable without
describing how their age will affect the risk they face when homeless.

Being an ex-offender or a victim of violence (other than domestic abuse) by itself

does not mean that someone is vulnerable, without explaining how that experience of
prison or violence will add to the risks they face when homeless.

• Emphasis is on the facts and evidence relating to the particular applicant. Use
examples from their everyday life, to show how homelessness affects them in
the light of their characteristics (age etc) or condition (physical or mental
health).

• Attention is on the client's problems 'in the round' when homeless i.e. taking them all
together

3a) Aspects of your client’s life to consider:

o Health issues
▪ physical and mental health / medical conditions
▪ current and future treatment
▪ particular requirements to help manage the condition (medication, need
for medical equipment, attending appointments, diet, rest, quiet, warmth
etc.)

o Activities of daily living

▪ personal care
▪ managing household affairs (dealing with correspondence, appointments,
language issues, communication, literacy)
▪ ability to manage any previous tenancy e.g. paying rent or bills, claiming
benefits
▪ getting around
▪ keeping safe
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 ▪ usual work/leisure/social activities

o Any special difficulties linked to

▪ having been in care or fostered (and now 21 or over) where there might ,
for example, be a history of not being able to find or maintain
accommodation, or of being at risk of exploitation, abuse or offending
behaviour which is linked back to the experience of being in care.

▪ having been in the armed forces: might they have been on active service
and suffering from post-traumatic stress or unable to cope with ordinary
civilian life; might they be without any support networks, family or friends?

▪ having been in prison either on remand or on a custodial sentence: might

they have specific support needs because they are not used to organising
their own lives; have they become institutionalised or are they without any
support networks, or at risk of exploitation by others?

▪ having fled actual or threatened violence (other than domestic abuse)

including racially motivated violence, gang violence.

▪ another special reason, which might include having been a refugee or a

victim of trafficking or modern slavery, fleeing harassment or being a
young homeless person who is at risk of abuse or exploitation but has not
been in care.

▪ Vulnerability in the context of Covid-19 will be assessed on the

circumstances of the individual homeless person and the risks to them. A
person in the clinically extremely vulnerable group, even if vaccinated,
would arguably be in priority need because if street homeless they could
not follow the government’s guidance for this group (which, for example,
loosely advises avoiding contact with unvaccinated people and crowded
places) as well as ongoing general recommendations for maintaining
social distancing and personal hygiene. If they are otherwise medically
vulnerable or rough sleeping, it will depend on their situation and the state
of the pandemic at that time. If case rates are high, more cases will be
arguable, emphasising your client’s own vulnerabilities. If there are a very
low number of cases locally, facilities are open and the weather is good, it
will be more difficult to persuade the LA that they are at risk.

3b) Questions to keep in mind when interviewing and advising your client

(1) How the client is or will be affected by homelessness in relation to the

above aspects of life? Encourage the client to describe their situation,
their feelings and fears.
(2) Who, if anyone, provides support – family, friends, voluntary agencies,
health or social services? What kind of support do they give?
Has or will this support change as a result of the client’s homelessness?
Will the support continue to be available on a regular basis?
What will happen, for example, if the family/friends are not available or
go away?
(3) How might these changes mean the client is more at risk than the ‘robust
and healthy’ ordinary person if rendered homeless?
(4) Who might be able to provide evidence in support? (GP, medical
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 consultants, social workers, specialist support agencies, family members,
friends)
Consider whether it would be best to obtain letters from them at this
stage.
A medical report may be particularly useful where the client has mental
health issues or suffers from medical conditions which may not obviously
appear to have an impact on their ability to cope when homeless.
If requesting a report, ask the GP etc. to consider (a) whether or not
his/her client’s health would get worse if s/he were (street) homeless and
(b) their opinion as to whether they would suffer more than the ordinary
person in the same position, giving reasons why they think this.

It may help to go through the activities of a normal day or week with some clients
to get to the level of detail which might assist the assessment of vulnerability.

3c) Does the client have a ‘protected characteristic’ so that the Equality Act
2010 applies? (see Appendix 2 for details about the definition of
disability)

If, in your assessment, the client comes within the protection of the Equality Act
then you should consider informing the local authority that you believe this to be
the case. Any letter to the local authority would then need to include a brief
description of the nature of the impairment and how it has a substantial and
long-term adverse effect on the client’s ability to carry out normal day-to-day
activities.

The local authority must give rigorous consideration to the homeless

disabled person’s circumstances and whether they are vulnerable as a
consequence.

NB. Some addictions and conditions are not treated as impairments for the
purposes of the definition of disability, but they may cause or exacerbate other
conditions which do qualify as a disability.

For example:
• If someone had ADHD (a protected disability) which showed up in
exhibitionism or a tendency to violence (excluded conditions) they would
not be entitled to the protection of the Act, but if the person also had other
symptoms such as hyperactivity or impulsiveness which led them to act
without thinking or without any heed of the danger, then they would have a
protected characteristic (notwithstanding the other excluded condition).

• a person who has a drug/alcohol addiction (excluded condition) may be

disabled if they have hepatitis C or alcohol-related memory loss or drug-
induced mental health problem.

4. Guidance for clients who are making a homeless application

• We recommend that you and your client make a list to help them tell the
interviewing officer about:

o all the problems relating to their health and all aspects of daily living;
o how those problems have got worse since they lost their accommodation or are
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 likely to get worse when they become homeless;
o who helps them with these problems while they have somewhere to live;
o how their support has changed or might change when they are homeless.

• Emphasise to your client that they cannot assume that if they just tell the
interviewing officer that they suffer from a particular physical or mental health
condition, the officer will understand how it impacts on them now or when they
become homeless.

• Prepare a list of the names of people it would be helpful for the interviewing officer
to contact for more information (GP, hospital consultants, social services,
community agencies, etc.)

• Suggest that they take someone with them to the interview if they feel that they
cannot explain things clearly to the interviewing officer (possibly in addition to a
referral letter).

5. What to do if the local authority refuses to take a homeless application or

take an application but refuse to provide interim accommodation because
they say your homeless client is ‘not in priority need’.

If you think that your client is in priority need it may be possible to seek judicial review of
that refusal in the High Court.

• Send a letter immediately to Homeless Services and : -

(1) confirm that your client made a homeless application when they approached
Homeless Services
(2) explain why in your view Homeless Services should have ‘reason to believe’ that
they may be eligible, homeless and in priority need
(3) ask them to provide interim accommodation straight away
(4) also ask for a written decision and say that you will refer the client for legal advice
if interim accommodation is not provided.

• Refer your client to a housing solicitor as soon as possible

A solicitor can apply to the High Court for judicial review of that decision and an order
for interim accommodation to be provided.

Legal Aid is available if the client is on a low income and there is sufficient merit in
the case.

For advice on judicial review NHAS members can call the can call the NHAS Housing
Consultancy Line– telephone 0300 330 0517 Monday to Friday 9am to 6pm or via
webchat at nhas.org.uk.

6. What to do if the local authority makes a decision that your homeless client
is not in priority need

(1) If you think that the local authority has made the wrong decision, your client
can seek a review.
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 The review should be requested within 21 days of receiving the decision. You may
also want to ask for accommodation while the review is being carried out. The local
authority has discretion to accept a review out of time, but is likely only to exercise
this in compelling cases.

(2) At the same time, ask for a copy of the client’s housing file.

(3) Refer to a housing solicitor?

Consider whether your client should be referred to a housing solicitor because the
review raises difficult questions of fact or law. If your client is on a low income,
s/he may be eligible for legal aid.

If you decide that there is not enough merit in seeking a s202 review but subsequently
the client’s circumstances change or new evidence comes to light, you should consider
a fresh application to the local authority.
Things to consider when making representations on vulnerability

NB Advice from Lord Neuberger in the Supreme Court: challenges to local authority
decisions should not take a ‘too technical approach’ or ‘search for inconsistencies’ and
‘immaterial errors’. Nevertheless, one must carefully go through the decision letter to identify
any mistakes of fact or law.

• Go through the s184 decision letter with the client and check the facts as stated in
the letter are correct.
• Identify the key points in dispute.
• Decide whether you need additional fresh evidence to put to the local authority. The
review officer must consider all the facts and evidence which are available at the date
of the review. If you do not submit the fresh evidence for the review and you
subsequently have to lodge a County Court appeal, the court will not look at any new
evidence.
• Ask the local authority for sufficient time to make representations if it will be needed
to consider the housing file or gather evidence.
The review should be carried out within 56 days unless you and the local authority agree to
extend the time limit. If the local authority fails to complete the review on time, your client
may be able to appeal to the County Court. Seek legal advice.

Questions to keep in mind when considering a s202 review:

(1) Has the right comparator been used i.e. between the applicant and a healthy and
robust ordinary person in need of accommodation?
(2) Have ‘dangerous’ or misleading terms been used such as
i. “street homeless”: too difficult an expression to define and not referred to within
the statute - to be avoided
ii. “fend for oneself”: not referred to in statute and could lead to misleading test, e.g.
would suggest that support of family members should not be taken into account.
(3) Has there been non-permissible reference to statistics or the local authority’s
resources?
(4) Has the assessment of ‘risk of harm’ been set at too high a level? i.e. `significant’
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 has been interpreted as ‘substantial’ or ‘very serious’ rather than having a noticeable
effect on the applicant’s ability to find accommodation or, if it cannot be found, to deal
with the lack of it?
(5) Has too much weight been given to the role of third party support to the client if
homeless?
(6) Have sufficient enquiries been made?
(7) Have the relevant facts and evidence been properly taken into account?
(8) Have any relevant facts or evidence been ignored or played down?
(9) How has any medical evidence been treated? Has the local authority given too much
weight to the assessment of their own medical advisor rather than the applicant’s
doctor or other support professional? (Such factors might include the relative expertise
of the professionals, their relative knowledge and contact with the applicant, the
application of the correct ‘vulnerability’ test, and whether relevant expert opinions were
downplayed or ignored)
(10) Has there been a ‘rigorous consideration’ of the Equality Act duty, i.e proper and
conscientious focus on the statutory criteria and not just lip service (there does not
have to be a specific reference to the Equality Act, but there should be evidence of a
genuine consideration of the issues)?

For advice about a s202 review NHAS members can call the can call the NHAS Housing
Consultancy Line– telephone 0300 330 0517 Monday to Friday 9am to 6pm or via webchat at
nhas.org.uk.

7. What to do if the local authority review upholds the decision that your client
is not in priority need.

If you think that the local authority has still got it wrong, it may be possible to appeal to
the County Court under s204 Housing Act 1996 against the negative s202 review.

• Consider referring your client to a housing solicitor or seek specialist

advice as soon as possible.

• Legal Aid is available if the client is on a low income and there is sufficient merit
in the case.

• An appeal has to be lodged within 21 days.

• An appeal can only be brought on a point of law.

• Points of law can arise from any decision where – for instance:
o the wrong legal ‘test’ for assessing vulnerability has been applied.
o inadequate enquiries have been made into your client’s situation
o there is no or insufficient evidence to support the factual findings
o the relevant factors have not been taken properly into account
o the reasons for the decision are inadequate.

For advice about a s204 appeal NHAS members can call the can call the NHAS Housing
Consultancy Line to seek further advice and support– telephone 0300 330 0517 Monday to
Friday 9am to 6pm or via webchat at nhas.org.uk.

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10
Appendix 1. The assessment of vulnerability: some key points

A. The old approach

‘Vulnerability’ is not defined in s189(1)(c) Housing Act 1996 or in any regulations.

In the absence of a statutory definition, local authorities adopted and applied an
interpretation from the judgment of the Court of Appeal in R v Camden London Borough
Council, ex p Pereira (1998).
In order to pass the Pereira test a homeless applicant who did not fit into other priority need
categories had to prove vulnerability by persuading the local authority that they:
“when homeless [ will be] less able to fend for himself than an ordinary homeless person so
that injury or detriment to him will result when a less vulnerable man would be able to cope
without harmful effects”.
It became a common practice for local authorities to compare the homeless applicant with
the ‘ordinary homeless person’ who was street homeless and more likely than most to suffer
from mental and physical health problems.
If a local authority uses this approach to establish priority need then they are no longer
applying the correct law. This would give you a ground for a review.

B. The new approach adopted by the Supreme Court and Court of Appeal

Relevant cases:

Hotak v Southwark LBC, Kanu v Southwark, Johnson v Solihull MBC May [2015] Supreme
Court
Panayiotou v Waltham Forest LBC [2017] Court of Appeal
Rother DC v Freeman-Roach [2018] Court of Appeal

NB: References to specific paragraphs in the judgment in brackets

Defining Vulnerability
‘Vulnerable’ is a word which invites a comparison, so who should the homeless applicant
be compared with and how should the comparison be made?

• The comparison must be with the ordinary person who is in need of accommodation
and not the ordinary homeless person or street homeless person. (Hotak (93), (57)
- (59)).

• Further, the comparison is with ‘ordinary people generally, not ordinary people in
the locality' (Hotak (93)).

• The ordinary person is robust and healthy (Hotak (71) and confirmed in Rother DC
(32)).

• “Vulnerable” in section 189(1)(c) means being “significantly more vulnerable than

ordinarily vulnerable as a result of being rendered homeless” (Lord Neuberger in
Hotak, para 53). All people are at risk of harm from homelessness, but the Act did
not intend all homeless persons to qualify as vulnerable.

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 So, what does ‘significantly more vulnerable’ mean? In Panayiotou Lord Justice
Lewison at para 44 said that a relevant feature of vulnerability was ‘an impairment of
a person’s ability to find accommodation or, if he cannot find it, to deal with the lack
of it. The impairment may be an expectation that a person’s physical or mental
health would deteriorate; or it may be exposure to some external risk such as the
risk of exploitation by others.’

An applicant would be significantly more vulnerable if as a result of one of the

characteristics or conditions set out in s189(1) (c) (e.g. mental illness, physical
disability, being in care etc) ‘the applicant would suffer or be at risk of suffering harm
or detriment which the ordinary person would not suffer or be at risk of suffering such
that the harm or detriment would make a noticeable difference to his ability to deal
with the consequences of homelessness. To put it another way, what Lord Neuberger
must have meant was that an applicant would be vulnerable if he were at risk of more
harm in a significant way.’ (Panayiotou (64))

• Close attention must be given to the particular circumstances of the applicant ‘in the
round’, i.e. not so much by reference to each of the applicant’s problems but by
reference to them when taken together. (Hotak (38)).

• No account can be taken of the demands on the local authority or its

resources when making a decision on a homeless application (Hotak (39)).

• No statistics can be used as a comparator to measure vulnerability: 'The use of

statistics to determine whether someone is vulnerable is a very dangerous exercise'
(Hotak (43)).

Taking into account support from others

• The care given by statutory bodies or by a carer (whether a family member or not),
can be taken into account. “An applicant might not be vulnerable if, when homeless,
he would be provided with support and care by a third party (often no doubt a family
member with whom he was living).” (Hotak (61) – (65))

• This support can only be taken into account where the housing authority is satisfied
that the third party will provide support “on a consistent and predictable basis”.
(Hotak (65))
▪ Further, 'The mere fact that such support would be available may not prevent the
applicant from being vulnerable.” (Hotak (69))
▪ “It is not unreasonable to expect members of the same family to support each other if
they are living together, but:
(i) whether a particular applicant will in fact receive support and if so what support,
must be a case-specific question, to which the answer must be based on
evidence,
(ii) in a particular case, the level of support may have to be so high to obviate
vulnerability that it goes beyond what can be expected on any view, and
(iii) as already explained, the fact that there may be very substantial support does not
of itself necessarily mean that the applicant will not be vulnerable.” (Hotak (70))

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Duty under the Equality Act

• Where the EA 2010 is engaged, i.e. the person has a protected characteristic, the
effect is to increase the level of scrutiny required by the housing authority.
▪ This requires the reviewing officer to focus 'very sharply' on
(i) whether the applicant is under a disability (or has another relevant protected
characteristic),
(ii) the extent of such disability,
(iii) the likely effect of the disability, when taken together with any other features,
on the applicant if and when homeless, and
(iv) whether the applicant is as a result ‘vulnerable.’ (Hotak (78)).
▪ The duty must be ‘exercised in substance, with rigour and with an open mind’. (Hotak
(78))

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Appendix 2: Relevant law in relation to vulnerability and priority need

A. Housing Act 1996

Section 189(1)(c) of the Housing Act 1996 states that “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” has a priority
need for accommodation.

Homelessness (Priority Need for Accommodation (England) Order 2002, SI 2002/2051

sets out a list of those who may be in priority need if they can show that they are vulnerable:

(1) A person (other than a relevant student) who has reached the age of twenty-one and
who is vulnerable as a result of having been looked after, accommodated or fostered.

(2) A person who is vulnerable as a result of having been a member of Her Majesty’s
regular naval, military or air forces.

(3) A person who is vulnerable as a result of:

(a) having served a custodial sentence (within the meaning of section 76 of the
Powers of Criminal Courts (Sentencing) Act 2000)(1);
(b) having been committed for contempt of court or any other kindred offence;
(c) having been remanded in custody (within the meaning of paragraph (b), (c) or (d)
of section 88(1) of that Act). (Reg 5 of the above order)

(4) A person who is ‘vulnerable’ as a result of ceasing to occupy accommodation by

reason of violence from another person or threats of violence from another person
which are likely to be carried out. (Reg 6 of the above Order) (NB new separate
provision for those homeless because of domestic abuse)

B. Equality Act 2010

Section 4 of the Equality Act 2010 defines “protected characteristics” as age, disability
(including mental or physical impairment), gender reassignment, marriage and civil
partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

Section 6 of the Equality Act 2010 states that a person has a disability if they have a physical
or mental impairment, and the impairment has a substantial and long-term adverse effect on
their ability to carry out normal day-to-day activities.

In s 212(1) of the Equality Act 2010 ‘substantial’ is defined as ‘more than minor or trivial'.

In para 2(1) of Schedule 1 of the Act the effect of an impairment is defined as ‘long term’ if:
(a) it has lasted for at least 12 months,
(b) it is likely to last for at least 12 months, or
(c) it is likely to last for the rest of the life of the person affected.

If an impairment ceases to have a substantial adverse effect on a person's ability to carry out
normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is
likely to recur. (para 2(2), Schedule 1)

If a person has certain specified medical conditions they will as a matter of law be deemed to
have a disability:
(1) cancer
(2) multiple sclerosis
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 (3) HIV infection if it is infection by a virus capable of causing the Acquired Immune
Deficiency Syndrome. (para 6 Schedule 1)
(4) where that person is certified as blind, severely sight impaired, sight impaired or
partially sighted by a consultant ophthalmologist (reg 7 Equality Act 2010
(Disability) Regulations 2010 SI 2010 /2128).

On the other hand, there are certain exclusions from the definition of disability which do not
amount to a physical or mental impairment. These are set out in the Equality Act 2010
(Disability) Regulations 2010.

The exclusions are:

(1) Addiction to alcohol, nicotine or any other substance is not to amount to an

impairment unless the addiction was originally the result of administration of
medically prescribed drugs or other medical treatment. (reg 3)

(2) (a) a tendency to set fires,

(b) a tendency to steal,
(c) a tendency to physical or sexual abuse of other persons,
(d) exhibitionism, and
(e) voyeurism. (reg 4)

(3) Seasonal allergic rhinitis, but this can be taken into account where it aggravates
the effect of any other condition.

See also Equality Act Guidance.

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Appendix 3: Covid 19, vulnerability and priority need

1. Who are the clinically extremely vulnerable? – the Code of Guidance says they are
likely to be in priority need
People who are clinically extremely vulnerable are at high risk of serious illness from
coronavirus (COVID-19) infection. They should have received a letter advising them to shield
or have been told by their GP or hospital clinician – but they might not have

Clinically extremely vulnerable people may include:

1. Solid organ transplant recipients.
2. People with specific cancers:
o people with cancer who are undergoing active chemotherapy
o people with lung cancer who are undergoing radical radiotherapy
o people with cancers of the blood or bone marrow such as leukaemia, lymphoma or
myeloma who are at any stage of treatment
o people having immunotherapy or other continuing antibody treatments for cancer
o people having other targeted cancer treatments which can affect the immune
system, such as protein kinase inhibitors or PARP inhibitors
o people who have had bone marrow or stem cell transplants in the last 6 months, or
who are still taking immunosuppression drugs
3. People with severe respiratory conditions including all cystic fibrosis, severe asthma
and severe chronic obstructive pulmonary disease (COPD).
4. People with rare diseases that significantly increase the risk of infections (such as
severe combined immunodeficiency (SCID), homozygous sickle cell).
5. People on immunosuppression therapies sufficient to significantly increase risk of
infection.
6. Those with problems with their spleen, for example splenectomy (having your spleen
removed)
7. Adults with Down’s syndrome
8. Adults on dialysis or with chronic kidney disease (stage 5)
9. Women who are pregnant with significant heart disease, congenital or acquired.
10. Other people have also been classed as clinically extremely vulnerable, based on
clinical judgement and an assessment of their needs. GPs and hospital clinicians have
been provided with guidance to support these decisions.

2. Who has “an underlying health condition which increases the risk of morbidity or
mortality from COVID-19?” – the COG says they may be in priority need
This is defined by reference to the list of those prioritised for vaccines by the JCVI, which
currently includes:
• aged 65 or older (regardless of medical conditions)
• under 65 with an underlying health condition including (but not limited to) those listed
below (that is, anyone instructed to get a flu jab each year on medical grounds):
o chronic (long-term) respiratory diseases, such chronic obstructive pulmonary
disease (COPD), cystic fibrosis and severe asthma
o chronic heart disease (and vascular disease)
o chronic kidney disease
o chronic liver disease
o chronic neurological disease including epilepsy
o Down’s syndrome
o severe and profound learning disability
o diabetes
o solid organ, bone marrow and stem cell transplant recipients
o people with specific cancers
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 o immunosuppression due to disease or treatment
o asplenia and splenic dysfunction
o morbid obesity
o severe mental illness

Who are those with a ‘history of rough sleeping’ – the CoG says their
circumstances need to be carefully considered.
There is no definition of a history of rough sleeping in the guidance but in the Protect
Guidance sent to LAs in November 2020 MHCLG gave an indication of its meaning in
stating that the target groups for assistance included:
• Long term rough sleepers who have slept rough for at least 1 month; or
• Repeat rough sleepers who have been identified on more than 1 separate occasion
sleeping rough, where there has been a break during which they had accommodation
or were in prison or other institution.

In his letter dated 8 January 2021 to all LAs, Robert Jenrick, the Secretary of State for
Housing Communities and Local Government, said that:

“…given the new variant of COVID-19 that is driving infection rates, and the Prime
Minister’s announcement of a new national lockdown, it is clear we need to redouble our
efforts to ensure that people who sleep rough, who we know are vulnerable to this
disease, are kept safe and that we do everything we can to protect the NHS.

It is for this reason that I am asking you to redouble your efforts to help those currently
sleeping rough to be accommodated. This means you should (subject to individual
assessments) make offers of safe and appropriate accommodation to people who are
rough sleeping now. This will include people who may have previously been offered
accommodation but rejected it or left accommodation, and individuals new to rough
sleeping who require help to move on from rough sleeping. As part of this, we also
expect you to carry out a rapid assessment of need for everyone that you accommodate
and consider interventions for those new to rough sleeping.”

In the COVID-19 clinical homeless sector plan (a detailed procedural guide for LAs when
accommodating rough sleepers following Luke Hall MP’s letter of 26 March) the Ministry’s
description of rough sleepers includes those ‘people with a history of rough sleeping in
temporary, communal accommodation’. This is presumably a reference to night shelters,
but could also include hostel-type accommodation where facilities are shared.

In the Summary - Homeless people at increased risk of severe illness from Covid 19 the
Ministry refer to the extremely vulnerable and vulnerable groups as above, but with the
following significant modification:
• Rough sleepers who are aged over 55. For the general population, those over 70 are
considered to be at increased risk. However, given that the average age of death for
rough sleepers is 45 for men and 43 for women, we recommend the age limit is
reduced to 55 for the purpose of operationalising this guidance.

In Chapter 1 (Rationale and key components) the following points are made about the risk
factors for rough sleepers:
• 60% of homeless people are at increased risk of severe illness from COVID-19 –
primarily due to high levels of chronic illness.
• People who are street homeless, living in hostels (with shared dining, bathroom and
toileting facilities and sometimes with shared rooms) and emergency accommodation
will not always be able to follow government advice.
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 • There is strong evidence of premature aging in the homeless population with the
average age of death being 45 for men and 43 for women. Homeless people over the
age of 55 will have an underlying co-morbidity, although this may not be diagnosed
due to lack of access to services.

• Many homeless people who develop symptoms of COVID-19 cannot currently follow
government advice to self-isolate.
• In communal settings there will be a very high likelihood of outbreaks with high attack
rates.
• High levels of co-morbidity will result in high case fatality rates for those infected.

Although the government is stepping back from “Everyone In”, the Protect Guidance and
various statements and evidence of increased risk to this group have not changed and can
still be relied on in representations.

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