Lord Neuberger. Sketch by Isobel Williams http://isobelwilliams.blogspot.co.uk/

Lord Neuberger. Sketch by Isobel Williams http://isobelwilliams.blogspot.co.uk/

Last week, 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 previous test had put the bar impossibly high for the vast majority of single homeless applicants to get temporary housing. This was a particular problem in London and the South East, where local authorities took a hard line.

  •  Matt represented interveners Crisis and Shelter in the three appeals
  • ‘This ruling represents a major step in tackling the injustice faced by so many single homeless people in England today,’ said Jon Sparkes, chief executive of Crisis.

“During our intervention in this case, the Court heard evidence of just how horrific a homeless person’s life has to be before they qualify for council help. The average age of death for a homeless person is just 47; they are over nine times more likely to commit suicide and 13 times more likely to be a victim of violence. It’s a scandal that someone facing this kind of life can be told they’re not vulnerable enough for help.
The reality is that anyone sleeping on the streets is vulnerable, and we applaud today’s ruling for making it easier for people to get help. The Court is also clear that while councils are often under huge financial strain, this must not be used as an excuse for avoiding their legal duties.”
Jon Sparkes, Crisis

Under previous guidance laid down by the Court of Appeal in 1998, a homeless person seeking to convince a local authority that he or she was vulnerable had to prove that they were worse off than an ‘ordinary homeless person’. This became known as ‘the Pereira test’, after the name of the leading Court of Appeal case. The Supreme Court ruled that this was wrong and the correct comparison is with 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 decision is a welcome reminder that the UK’s highest court will not shrink from giving effect to what it regards as the correct meaning of an Act of Parliament, even if an incorrect reading has been accepted for years. As a QC (who shall remain nameless) recently told me: once you are before the Supreme Court ‘all bets are off’.

Now for the legal details. 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) the Court of Appeal 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.’

In numerous subsequent cases this judgment was construed as if it was the Act of Parliament and (despite judicial protestations to the contrary) elevated into a substitute test, ‘the Pereira test’. As the respondent local authorities told the Supreme Court, it had been followed by the Court of Appeal on 20 occasions. So, they argued, it was too late to change it.

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 interveners Shelter and Crisis showed the court examples of decisions in which homeless applicants with depression and suicidal tendencies or 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 para 56 Lord Neuberger hit the nail on the head, stating:

‘…if the comparison is with the ordinary actual homeless person, then … as Sedley J 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’.’

The Supreme Court recognised the injustice, and acted decisively to correct it.



Profile photo of Matt Hutchings About Matt Hutchings
Matt is a barrister at Cornerstone and specialises in civil and commercial litigation, property, housing and public law.

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