The 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.”
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