Supreme Court overturns 16 year old test on homelessness vulnerability in landmark legal ruling

Ref. Hotak, Kanu and Johnson [2015] UKSC 30; [2015] 2 WLR 1341
The Housing Act 1996 contains the statutory authority on homelessness vulnerability. S. 189 (1) (c) of Part 7 provides that:

“(1) The following have a priority need for accommodation… (c) 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.”

This was the subject of the prominent case of R v Camden LBC, ex p. Periera (1998) in which Hobhouse LJ gave guidance as to the application of the vulnerability test to assessing need:

“when homeless, 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.”

In the following years, that statement has been elevated to the status of the ‘Pereira test’ and widely accepted – until now.

The problem discussed revolved around the ‘ordinary homeless person’. As per statistics produced by various homeless charities, homeless people are more likely to suffer from mental illness or physical ill health. As such, using the ‘ordinary’ homeless person as a benchmark introduced a category of super-vulnerable vulnerable people.

The pressures of a shortage of social housing and an increase in homeless numbers of the years between the 1998 case and the present day, resulted in an upward pressure on what constituted ‘vulnerable’ – with councils avoiding where possible their statutory duties to the homeless.

At the hearing, Shelter and Crisis showed the court examples of decisions in which homeless applicants with depression and suicidal tendencies, or those who had suffered from serious abuse when homeless, were denied priority need status on the basis that they were no worse off than many actual homeless people. Lord Neuberger stated:

“if the comparison is with the ordinary actual homeless person, then … as Justice Sedley pointed out in R v Hammersmith & Fulham London Borough Council, Ex p Fleck (1997) 30 HLR 679, 681, there would be a real risk that ‘a sick and vulnerable individual (and I do not use the word “vulnerable” in its statutory sense) is going to be put out on the streets’, which he described as a ‘reproach to a society that considers itself to be civilised’.”

Beyond this, the issue of whether support or care provided by a third party mitigated the status of an otherwise ‘vulnerable’ person was discussed. The arguments for taking into account support consisted of:

  1. The “bad brother” anomaly. The “good brother” offering to support his ill sibling, so that he was protected from harm when homeless, would deny both of them priority need. The “bad brother” unwilling to support his ill sibling would be rewarded by both of them qualifying for priority need status.
  1. The “magic pill” argument. If an applicant’s illness can be satisfactorily treated by medication, it is counter-intuitive to treat him as vulnerable.

Despite over 16 years of the Pereira Rule, the Supreme Court held that it was now invalid.

The correct test is “significantly more vulnerable than ordinarily vulnerable” and the correct comparator is an ordinary person – not an ordinary homeless person. This was summarised by Baroness Hale as “more at risk of harm from being without accommodation than an ordinary person would be.”

The court, by a majority, also decided that third party support could be taken into account, subject to

  • the local authority must be satisfied that, as a matter of fact, the third party will provide such support on a consistent and predictable basis (paragraph 65),
  • the mere fact that such support will be available may not remove the applicant’s vulnerability (paragraph 69)
  • there is no presumption that a family member will do what it is reasonable to expect him to do (paragraph 70).

Thus, despite the ongoing pressures of constrained social housing supply and a relatively substantial homeless population, the position of councils obligated to assist the homeless is now comparatively weaker than it has been for almost two decades. The line above which a person becomes ‘vulnerable’ has been lowered – though it remains to be seen whether there is sufficient scope in the word ‘significantly’ to raise it once more.

SRJ                                                                                                                                               15.06.15

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