Supreme Court re-defines "vulnerability" in homelessness cases

What is the difference between an "ordinary homeless person" and an "ordinary person made homeless"? This is not a question from a metaphysics exam paper but rather one of the real and practical issues that the Supreme Court had to grapple with in the joined appeals of Hotak v Southwark; Kanu v Southwark; Johnson v Solihull [2015] UKSC 30.

19/05/2015

Trevor Watt

Trevor Watt

Solicitor

What is the difference between an "ordinary homeless person" and an "ordinary person made homeless"? This is not a question from a metaphysics exam paper but rather one of the real and practical issues that the Supreme Court had to grapple with in the joined appeals of Hotak v Southwark; Kanu v Southwark; Johnson v Solihull [2015] UKSC 30.

Many a homelessness officer will have the wording of the so-called Pereira test carved in tablets of stone above their desk. Those engravings will now have to go the way of the Miliband Ed-stone as the Supreme Court disapproved of the test of vulnerability set out in that case; a test that has subsequently become "encrusted" over fifteen years with extraneous and non-statutory words and concepts.

Vulnerability

A homeless person has a priority need for accommodation if s/he is vulnerable as result of old age, mental illness or handicap or other special reason (section 189(1) Housing Act 1996). This simple statutory wording was explained in R v Camden ex parte Pereira [1999] as meaning that a person is vulnerable "if, when homeless, he 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 person would be able to cope without harmful effects." Or, to put it another way, a person is vulnerable if he is more vulnerable than a person who is less vulnerable. As the Supreme Court noted, the Pereira formulation is logically circular.

Subsequent cases had attempted to provide clarity about the non-statutory words that had crept into the definition ("fend for himself", "injury or detriment", and so on). The result of all this subsequent glossing of the statutory language was that the test had become in some cases whether a homeless person was more vulnerable than the ordinary street homeless person within the area of the local authority in question.

The Supreme Court was having none of it and returned to the simple language of the statutory test. The appeals raised three important questions:

  1. Does the assessment of vulnerability require a comparative exercise, and if so with whom?
  2. Can a local authority take into account support that will be provided to the applicant if he were to become homeless?
  3. What effect does the public sector equality duty have on a local authority's determination of vulnerability?

The correct comparator

The court held that vulnerability was a comparative concept and that the correct comparator was an ordinary person made homeless, not an ordinary homeless person, still less an ordinary street homeless person, and still even less an ordinary street homeless person within the local authority's district. The Act provides a definition of homelessness that should be applied to the concept of the ordinary person made homeless. The fact that drug use or mental ill health, for example, may be more common within the homeless population is therefore irrelevant to the question of whether an individual is vulnerable. The court strongly rejected the suggestion that such statistics play any useful part in the assessment.

Support from third parties

The court held that local authorities can take into account care and support that an individual will continue to receive when homeless, as long as they are satisfied that it will be provided on a consistent and predictable basis. Because a person is in priority need if they could reasonably be expected to reside with a vulnerable person, this could lead to the paradoxical situation in which an unsupportive family member could be better off (because they would be accommodated with the vulnerable person) if they refused to provide support than if they offered to. The court noted this paradox but stated that the purpose of the Act was to solve a practical problem, not to reward virtuous behaviour.

The Equality Act

The court held that the public sector equality duty (PSED) complemented a local authority's duties under the 1996 Act. Merely reciting the relevant section of the Equality Act will not do in a decision letter, but at the same time a conscientious decision maker could perfectly well discharge the PSED without referring to it explicitly. Clearly both physical and mental disabilities will be highly relevant to an assessment of vulnerability; both are expressly referred to in section 189(1) of the Act. In applying the re-formulated test of vulnerability the court directed local authorities to focus very sharply on: (1) whether an applicant has a disability; (2) the extent of such disability; (3) the effect of the disability (taken together with other features) when the applicant is homeless; and (4) whether the applicant is vulnerable as a result.

What this means for local authorities

The judgment is a useful "clearing out" of the accumulated case law that had served to obscure and complicate the test of vulnerability. There will no doubt be further cases in the higher courts as local authorities work out where the new boundaries of the test lie. Much as there were disputes about the characteristics and traits of an "ordinary homeless person" there are now bound to be disputes over those of the "ordinary person made homeless". Speculative flights of metaphysical fancy should be avoided however. Local authorities would be well advised to refer back to the plain and simple meaning of section 189(1) as the starting point, and not depart too far from it.

How Bevan Brittan can help

Bevan Brittan's housing team regularly advises local authorities on their housing duties and functions. Our team has a wealth of experience advising and acting in homelessness reviews and appeals. We can also act as a 'critical friend', ensuring that homelessness strategies and policies comply with the relevant law and guidance, and where required can assist with making section 184 and review decisions as robust as possible.

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