Supreme Court to hear challenge to key test on homelessness and vulnerability

The Supreme Court will next week hear three cases where homeless applicants for housing assistance are seeking to challenge the Pereira test of vulnerability.

A five-justice panel comprising Lord Neuberger, Lady Hale, Lord Kerr, Lord Clarke and Lord Hughes will hear the cases of Johnson v Solihull, Hotak v Southwark and Kanu v Southwark over the three days from 15 December.

The key issues and factual background to each case – as set out on the Supreme Court website (www.supremecourt.uk) – are as follows:

Kanu v London Borough of Southwark

Issue

Whether a housing authority, who would otherwise find a homeless individual "vulnerable" for the purposes of the Housing Act 1996 and in priority need of housing, can refuse to do so due to support available from fellow homeless members of their household; if so, the scope and extent of the public body’s duty of enquiry into the availability and efficacy of such support.

Facts

The Appellant suffers from physical and mental health problems. He was evicted from his private rented accommodation in November 2011. He applied to the Respondent on the basis that he was threatened with homelessness and in priority need due to disability. He was placed in temporary accommodation pending a decision on his homelessness status. On 21 March 2013, the Respondent decided that although the Appellant’s health problems would render him "vulnerable" if he was on his own, he was not vulnerable (and, therefore, not in priority need) for the purposes of the Housing Act 1996 due to support he could receive from his wife and son. The Appellant’s appeal was allowed by Mr Recorder Matthews in Lambeth County Court on 22 November 2012 but this was reversed by the Court of Appeal on 29 July 2014.

Johnson v Solihull MBC

Issue

What test should a local authority apply in determining whether an individual is "vulnerable" and therefore in priority need for the purposes of the statutory homelessness provisions? In particular, should the individual be compared with ordinary homeless persons, or ordinary persons who happen to be homeless, and what factors can the local authority take into account?

Facts

The respondent concluded that the appellant, a homeless man with various personal problems including a history of drug use and incarceration, was not "vulnerable" for the purposes of s.189(1)(c) of the Housing Act 1996. The review officer took into account the fact that many homeless people have drug problems in applying the "ordinary homeless person" test. 

Hotak v Southwark

Issue

1. Whether the appellant is in priority need for the purposes of s. 189 Housing Act 1996.
2. Whether, in considering vulnerability due to mental illness or handicap or physical disability, a housing authority is entitled to consider support provided by a third party

Facts

The appellant suffers learning difficulties which affect his ability to cope with daily living. He relies on his brother for daily personal support. The appellant and his brother lived together in a flat belonging to a friend but were required to leave due to over-crowding. They made an application for housing assistance from the Council. The Council decided that the appellant was eligible for assistance and was unintentionally homeless. However, they found that he was not in priority need as a vulnerable person under section 189(1)(c) of the Housing Act 1996 because he received assistance from his brother and, in a homeless situation, he would not suffer injury or detriment or be able to be less able to fend for himself than would the ordinary street homeless person. The county court and Court of Appeal upheld the Council’s decision.

Bryan McGuire QC, Matt Hutchings and Jennifer Oscroft of Cornerstone Barristers are instructed to represent Shelter and Crisis on their intervention. Shelter is being advised by its in-house legal team, while Crisis has instructed Giles Peaker of Anthony Gold. Freshfields’ pro bono unit is also advising both charities.

The charities are concerned that the current application of the Pereira test means many vulnerable homeless people are not being assisted by housing authorities.

Commenting last month after permission to intervene was granted, Crisis chief executive Jon Sparkes said: “Local councils are wrongly refusing to help homeless people who come to them in desperate need as they do not consider them to be ‘vulnerable enough’.

“This has led to many people being turned away to sleep on the streets. The average age of death for a homeless person is just 47 – a shocking state of affairs in 21st century England. If the Supreme Court addresses this longstanding injustice, and people are fairly judged when they ask for help from their local council, protection for homeless people could be greatly improved.”

Kelvin Rutledge QC, Ashley Underwood QC and Catherine Rowlands – all also from Cornerstone Barristers – have meanwhile been instructed to act for Solihull and Southwark.