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Supreme Court overturns key test on homeless people and vulnerability

Supreme Court Main Entrance 03521C press office supplied 146x219The Supreme Court has today issued a landmark ruling in three linked appeals over when homeless people are to be considered ‘vulnerable’ under the Housing Act 1996 and therefore in priority need.

A key effect of the judgment is said to be that the test set out in the 1998 Court of Appeal case of Pereira has now been overturned.

The background to the cases is that under s. 188 of the 1996 Act local authorities have a duty to secure that accommodation is made available for applicants who are homeless and have priority need.

Priority need is defined in section 189(1) of the 1996 Act and includes at paragraph (c) persons who are “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.”

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The appellants in the linked Supreme Court appeals of Hotak v London Borough of Southwark, Kanu v London Borough of Southwark and Johnson v Solihull Metropolitan Borough Council had applied for accommodation on the basis that they had priority need.

The factual situation in the three cases was as follows:

  • The first appellant (Hotak) had very significant learning difficulties and symptoms of depression and PTSD. He was cared for by his brother. Southwark refused his application on the grounds that, if homeless, he would be provided with the necessary support by his brother.
  • The second appellant (Kanu) had multiple physical problems as well as psychotic symptoms and suicidal ideation. He was deemed by Southwark not to be in priority need because he would not be at a greater risk of injury or detriment than an ordinary street homeless person due to the ability of his wife and son to fend for the whole household.
  • The third appellant (Johnson) claimed to be vulnerable because he had become addicted to heroin while in prison and was in poor physical and mental health. Solihull found that he was not in priority need on the basis that he would not be less able to fend for himself than an ordinary homeless person.

The first and third appellants were unsuccessful in the courts below. The second appellant succeeded in the County Court but lost in the Court of Appeal.

Three issues arose in the subsequent appeals to the Supreme Court:

(1) Does the assessment of whether an applicant is vulnerable for the purposes of s. 189(1)(c) of the 1996 Act involve an exercise in comparability, and, if so, by reference to which group of people is vulnerability to be determined?

(2) When assessing vulnerability, is it permissible to take into account the support which would be provided by a family member to an applicant if he were homeless?

(3) What effect, if any, does the public sector equality duty (PSED) under s. 149 of the Equality Act 2010 have on the determination of priority need under the 1996 Act in the case of an applicant with a disability or any other protected characteristic?

In the Supreme Court ruling Lord Neuberger – with whom Lord Clarke, Lord Wilson and Lord Hughes agreed – dismissed the first appellant’s (Hotak’s) appeal. Lady Hale would have allowed it.

All five justices allowed Kanu’s appeal and dismissed the third appellant’s appeal.

On the first issue in the appeal, Lord Neuberger said that “vulnerable” in section 189(1)(c) connoted that the applicant must be significantly more vulnerable than an ordinary person who happened to be in need of accommodation.

The decisions of the Court of Appeal on this issue had all accepted that vulnerability had to be assessed comparatively, the judge said, adding that this was correct.

He agreed with Lord Wilson who had pointed out in argument that “vulnerable” carried with it a necessary implication of relativity.

“In the very type of case under consideration, it can fairly be said that anyone who is homeless is vulnerable…,” Lord Neuberger suggested.

Accordingly it followed that s. 189(1)(c) must contemplate homeless people who would be more vulnerable than many others in the same position.

Lord Neuberger said it “did not seem probable that Parliament intended vulnerability to be judged by reference to what a housing officer thought to be the situation of an ordinary actual homeless person”.

Such an assessment would be more likely to lead to arbitrary and unpredictable outcomes than if one took the ordinary person if rendered homeless, and considered how the applicant would fare as against him, the judge added.

Lord Neuberger said the comparator could not be an ordinary homeless person in the area of the relevant authority as this could lead to unacceptable outcomes with vulnerable people being put out on the streets.

Earlier in the judgment, the judge also noted that the 1996 Act did not refer to “street homeless” as a category or distinguish between the situations which might constitute homelessness; this called into question the authority making use of the term in assessing their duty to an applicant.

On the second issue concerning support provided by family members, Lord Neuberger said an applicant’s vulnerability under s. 189(1)(c) had to be assessed by reference to his situation if and when homeless.

“In other words, it is not so much a clinical assessment of his physical and mental ability (to use a shorthand expression): it is a contextual and practical assessment of his physical and mental ability if he is rendered homeless…,” the judge said.

The fact that it was a contextual and practical question pointed strongly in favour of the conclusion that, when deciding if he was “vulnerable”, one must take into account such services and support that would be available to the applicant if he were homeless, Lord Neuberger added.

The judge suggested that this conclusion was supported by the purpose of the legislation in question. Those who were more vulnerable in practice if they were homeless could be expected to receive priority treatment.

“It would seem contrary to common sense if one were to ignore any aspect of the actual or anticipated factual situation when assessing vulnerability,” Lord Neuberger added.

The judge said it did not matter – at least in principle – whether the support was provided pursuant to a legal obligation. He did agree with Lady Hale though that housing authorities could only take third party support into account where they are satisfied that it would be provided on a consistent and predictable basis.

Lord Neuberger said the primary focus of s. 189(1)(c) was on the applicant, not the benefit of the third party and it would place an excessive burden on housing authorities if family support were disregarded.

However, he added that the mere fact that support was available did not of itself prevent the applicant from being vulnerable.

The judge said he accepted that it was not unreasonable to expect members of the same family to support each other if they were 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 (which can of course include appropriate inferences), (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 very substantial support does not of itself necessarily mean that the applicant will not be vulnerable”.

Thus, Lord Neuberger said, in some cases, the support might be every bit as good as the applicant would receive if he were housed, but it would still not prevent him from being vulnerable. “Accordingly, the reviewing officer must always consider very carefully whether the applicant would be vulnerable, after taking into account any support which would be available.”

On the third issue in the appeal, the weight and extent of the PSED were highly fact-sensitive and dependent on individual judgment, the judge said.

In cases such as the present one, the authority’s equality duty could fairly be described as complementary to its duty under the 1996 Act.

“More specifically, each stage of the decision-making exercise as to whether an applicant with an actual or possible disability or other 'relevant protected characteristic' falls within section 189(1)(c), must be made with the equality duty well in mind and ‘must be exercised in substance, with rigour, and with an open mind',” Lord Neuberger said.

He went on to say that the reviewing officer must focus very sharply on: (i) whether the applicant had a relevant protected characteristic, (ii) its extent, (iii) its likely effect, when taken together with any other features, on the applicant if and when homeless, and (iv) whether the applicant is vulnerable as a result.

Dissenting in part, Lady Hale would have allowed the first appellant’s (Hotak’s) appeal. She concluded that, while any statutory services which would be available to an applicant should be taken into account when assessing his vulnerability, family support should not.

It was not consistent with the intention of the statute to take into account help which might be available from other members of the household, she said.

Both the vulnerable person and their non-vulnerable family member qualified as being in priority need, Lady Hale argued. The 1996 Act permitted the non-vulnerable family to apply on behalf of both themselves and the vulnerable person. Parliament did not intend applications to be made by a family member who was not looking after the vulnerable person.

Lady Hale added that there was House of Lords authority for this proposition and none for the suggestion that the existence of a carer within the same household could mean that a person who was otherwise obviously vulnerable was not to be treated as such.

Responding to the judgment, Matt Hutchings of Cornerstone Barristers, who represented Shelter and Crisis, interveners in the appeals, said: ‘The Supreme Court today overturned the test that has been used by local authorities for 16 years to decide whether a homeless person is ‘vulnerable’ and so in priority need of accommodation.

“Previously, under guidance given by the Court of Appeal in the case of Pereira, applicants had to show that they were more vulnerable than an ‘ordinary homeless person’. Statistics showed that such a person was likely to suffer from very poor mental and/or physical health. So the test became ‘more vulnerable than the vulnerable’.

“The Supreme Court decided that this was wrong, and the correct test was ‘more vulnerable than an ordinary person’. In so doing, they have reinstated the original intention of Parliament.”

Shelter and Crisis predicted that this should make it easier for people to prove they are vulnerable, and make sure that local councils took full account of their individual circumstances.

Campbell Robb, chief executive of Shelter, said: “At the mercy of an almost impossible test, thousands of vulnerable homeless people have been forced to sleep rough or pushed into dangerous situations. Today’s landmark ruling should make this a thing of the past, and mean the law rightly acts to protect those who need it most.

“Far too often at Shelter we hear from homeless people in utterly desperate situations, like someone fleeing domestic violence or coping with a severe mental health problem, who’ve been wrongly refused help by their local council and left to fend for themselves on the streets.

“Even in the face of council budget cuts and an affordable housing drought, we must ensure vulnerable homeless people get the help they are entitled to. Today’s judgment shows that our homelessness laws remain a vital safeguard for those who lose their home through no fault of their own, and they must be upheld.”

[This article was based in considerable part on the Supreme Court’s summary of the ruling]

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