Solicitors Journal – No such thing as an ‘ordinary homeless person’

01 Jan 2018

Housing, Public Law and Judicial Review

On 13 May, in three appeals about priority need for the homeless (Hotak, Kanu, and Johnson [2015] UKSC 30), the Supreme Court overturned the test used by local authorities for 16 years 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 test is ‘significantly more vulnerable’ than an ordinary person. It also gave short shrift to the argument that parliament had implicitly approved the previous case law by not legislating to reverse it.

The Supreme Court agreed there should be a substantial modification of the principles in the leading Court of Appeal cases, Pereira and Osmani. The history of the 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. 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’.

In Pereira (1998), Lord Justice Hobhouse gave guidance as to the application of this 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.’

It is doubtful Hobhouse LJ intended this 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 main difficulty lay in the use of the comparator, the ‘ordinary homeless person’. Statistics showed that actual ordinary homeless persons 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.

At the Supreme Court hearing, counsel for the interveners, Shelter and Crisis, showed 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 hit the nail on the head, stating: ‘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”‘.

This article was published in Solicitors Journal.