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Local Government Lawyer: The Supreme Court on vulnerability

On 13 May, in three appeals about priority need for the homeless (Hotak, Kanu and Johnson [2015] UKSC 30; [2015] 2 WLR 1341), the Supreme Court overturned the test laid down 16 years previously, used by local authorities to decide whether a homeless person is "vulnerable" and so in priority need of accommodation.

The court ruled that the correct comparison is with an "ordinary person" so that the correct test is: significantly more vulnerable than an ordinary person, if homeless.

Legal context

Part 7 of the Housing Act 1996 contains the homelessness legislation. Section 189(1)(c) 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."

Having a priority need is a necessary condition for being owed a number of housing duties, including the main housing duty in section 193(2).

In R v Camden LBC, ex p. Pereira (1998) 31 HLR 317, at p.330 Hobhouse LJ gave guidance as to the application of the vulnerability test, as follows:

"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."

The history of the post-Pereira case law leading up to the Supreme Court decision may be viewed as a cautionary tale about the dangers of judicial glossing of statutory wording. It is doubtful Hobhouse LJ intended the above to be any more than practical guidance. However, in numerous subsequent cases his judgment was construed as if it was a statute and (despite judicial protestations to the contrary) elevated into the substitute "Pereira test".

The comparator issue

The main difficulty lay in the use of the comparator, the "ordinary homeless person". As verified by statistics produced by charities assisting the homeless, homeless people were likely to suffer from mental and physical ill health. A comparison with an ordinary homeless person therefore produced a "super-vulnerability test": more vulnerable than the vulnerable.

Over the intervening period since Pereira, a number of factors combined to put pressure on local authorities, particularly those in London, to refuse the main housing duty where they could: the scarcity of social housing, benefit cuts and cuts in grant funding. Thus, there was an upwards pressure on the threshold that had to be crossed in order to be considered "vulnerable".

At the Supreme Court hearing, counsel for the interveners, 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.

At paragraph 56, 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'."

At paragraph 60, Lord Neuberger gave short shrift to the argument that Parliament had implicitly approved the previous case law by not legislating to reverse it.

As Baroness Hale stated at paragraph 91 (agreeing with the majority on this issue): "we had reached the point where decision-makers were saying, of people who clearly had serious mental or physical disabilities, that 'you are not vulnerable, because you are no more vulnerable than the usual run of street homeless people in our locality'."

The family support issue

The other main issue, raised in the Hotak and Kanu cases, was whether support and care provided by a third party, such as a family member, was relevant to whether the applicant was "vulnerable".

The main argument advanced against taking such support into account was what might be described as the "bad brother" anomaly. In short, the "good brother" offering to support his ill sibling, so that he was protected from harm when homeless, would thereby deny both of them priority need; whereas the "bad brother" unwilling to support his ill sibling would thereby be rewarded by both of them qualifying for priority need status.

However, there was a more powerful argument for taking such support into account. This might be described as the "magic pill" argument. If an applicant's illness can be satisfactorily treated by medication, it seems counter-intuitive to treat him as vulnerable. The problem then becomes one of drawing a principled line. Lord Neuberger stated for the majority at paragraph 64:

"Once one accepts that point, it is very hard to see any logical reason for ignoring any support or assistance which an applicant would receive when homeless."

The Supreme Court's answers

The court decided unanimously that the Pereira test was wrong. The correct test is "significantly more vulnerable than ordinarily vulnerable" and the correct comparator is an ordinary person: see paragraphs 53, 57-59. Baroness Hale summarised this at paragraph 93: "more at risk of harm from being without accommodation than an ordinary person would be."

The court, by a majority, decided that third party support could be taken into account, but subject to the caveats that: (i) 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), (ii) the mere fact that such support will be available may not remove the applicant's vulnerability (paragraph 69) and (iii) there is no presumption that a family member will do what it is reasonable to expect him to do (paragraph 70). Baroness Hale dissented, reasoning that the appropriate dividing line was between support provided pursuant to a statutory obligation and other support (paragraph 94 onwards).

Future issues

It remains to be seen what local authorities' policy response to this judgment will be. A substantial change in the practice of vulnerability decision making will be required, and this is likely to be accompanied by other homelessness prevention and housing related support initiatives.

What is unlikely to be a viable option is to seek to erect a new comparator by putting too much weight on the word "significantly" more vulnerable within Lord Neuberger's judgment. This would amount to another gloss and tend to reintroduce the Pereira comparator through the back door.

Matt Hutchings is a barrister practising from Cornerstone Barristers. He represented interveners Crisis and Shelter in the three appeals.

This article was published in Local Government Lawyer.