Three landmark appeals being heard this week should clarify who is ‘vulnerable’ and entitled to priority rehousing by local authorities.
On Monday, the Supreme Court began hearing three joint appeals by homeless people; Johnson, Hotak and Kanu. The central issue in each case is the respondent councils’ decisions that the homeless applicants were not ‘vulnerable’ and therefore, did not have a priority need under the Housing Act 1996, which meant that the councils did not have a duty to accommodate them.
This is the first time the issue of vulnerability has been before the Supreme Court and is set to be the most important case on homelessness in decades, with considerable implications for both single homeless people and local authorities.
As well as the parties, homelessness charities Crisis and Shelter, and the Equalities and Human Rights Commission (EHRC) have been given permission to intervene. The secretary of state for communities and local government also intervened.
The central issue is the way councils have decided vulnerability in these cases, using the ‘Pereira test’, originating from a 1998 Court of Appeal decision, which considers whether the applicant ‘is, 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 person would be able to cope without harmful effects’.
The council must consider whether the homeless applicant or a member of their household is vulnerable by reason of ‘old age, mental illness or handicap or physical disability or other special reason’ (section 189(1)(c) Housing Act 1996), or vulnerable by reason of fleeing violence or threats of violence, being formerly in care, or from a period of imprisonment.
In Mr Johnson’s case - Mr Johnson was a recovering addict who had said he was likely to relapse if homeless - the Court of Appeal accepted that Solihull Metropolitan Borough Council was entitled to consider that the ‘ordinary street homeless person’ was likely to use drugs or return to drug use. Solihull used figures from Homeless Link’s Survey of Needs and Provision 2010 to suggest drug use was ‘frequent’ amongst street homeless people.
Other cases since in the Court of Appeal have included the High Court accepting that a council was entitled to find that the ordinary street homeless person was likely to self-harm or attempt suicide, despite misinterpreting statistics on the prevalence of self-harm and attempted suicide, so the risk of self-harm and attempted suicide by the applicant was no different to the ‘ordinary homeless person’ (Ajilore v Hackney LBC).
In the other cases being heard, Mr Hotak had learning difficulties and other disabilities. When he applied as homeless, Southwark Council accepted that his disabilities would make him vulnerable, but because Mr Hotak’s brother would continue to help him if he was street homeless, such continued care meant that he would not be less able to fend for himself than an ordinary street homeless person.
In Mr Kanu’s case, Southwark Council did not accept that his mental health issues were enough to make him vulnerable, partly because he had the assistance of his wife and son. A key issue in the Court of Appeal was whether the council’s decision-making was in accordance with the council’s public sector equality duty in regard to disability and whether that duty added anything to the council’s obligations under the Housing Act 1996.
The issues raised by all three appeals cover: how the comparison with the ‘ordinary homeless person’ in the Pereira test should be carried out, or whether the test should be changed; whether councils are entitled to take into account that a homeless applicant, who is otherwise vulnerable, may have assistance from others; and whether the public sector equality duty requires something different to or more than the Housing Act 1996 in a council’s approach to disabled homeless people.
The interventions by Crisis, Shelter, and the EHRC, plus the further intervention by the Department for Communities and Local Government (DCLG), demonstrate what is at stake here. Whatever the Supreme Court’s decision, it is likely to define how local authorities assess the vulnerability of single homeless people, and so whether there is a duty to house them, for many years to come.
Giles Peaker is a partner in the housing and public law team at Anthony Gold Solicitors. He is instructed by Crisis in the intervention in these appeals