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How Vulnerable? Re-assessing Homelessness

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About The Author

Amy Ling (Former Private Law Manager)

Amy graduated with a first in Philosophy from The University of Manchester in 2012. Following three years working within the social housing sector, Amy is currently studying for her LPC and will begin a training contract at a city firm in September 2016. Amy is an accomplished mooter, and was on the winning team in the 2015 JustCite International Mooting competition. Outside of the law, Amy is a keen runner.

In many ways it seems obvious that a person without a home, perhaps sleeping in a shop doorway, is likely to be in some way ‘vulnerable’. However, the beauty of the English language, and indeed of that tricky beast, statute interpretation, has meant that this has been made far from simple, with counterintuitive and harsh results.

However, the landmark judgment in the Supreme Court of Hotak & Ors v London Borough of Southwark presents a welcome re-interpretation of what it means for a homeless person to be classed as ‘vulnerable’.

The Law & the Pereira Test

As also outlined in my previous article on the duties of local authorities in respect of homeless individuals, the law in this area is primarily governed by Part VII of the Housing Act 1996 ('the Act'), which sets out a variety of hurdles that any person must pass in order to be owed a duty by their local authority.

Part VII of the Act imposes duties on local authorities to provide assistance, advice and accommodation to those who are homeless or threatened with homelessness (as defined by ss.175(1) – (4)). Under sections 183 and 184, if a person presents to their local authority and the authority has ‘reason to believe that an applicant may be homeless or threatened with homelessness’ then they must make inquiries as to whether the applicant is eligible for assistance and what duties may be owed to them.

Whether a local authority will have a duty or not is dependent on whether the applicant is eligible for assistance, in ‘priority need’ and ‘unintentionally homeless’. Section 189(1) defines those who should be considered in priority need, including pregnant women, those with dependent children and, at s.189(1)(c) ('the vulnerability category'):

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.

This is important as those who are identified as having a priority need must, following section 188, ‘secure that accommodation is available for his occupation pending a decision as to the duty… owed to him’. Being considered to be in ‘priority need’ is therefore essential for anyone wanting to be housed even on an interim or temporary basis by the local authority.

Being in ‘priority need’ is often the gateway for single homeless people over the age of 18 to obtain the duty from local authorities, as many of the provisions are, in many ways understandably, directed at protecting households containing children. The consequence is that majority of those refused the homelessness duty are single people.

The meaning of the vulnerability category has largely been influenced by the 1998 judgment in R v Camden London Borough Council, Ex parte Pereira in which Hobhouse LJ argued that an assessment must be made as to whether the applicant is:

[L]ess 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 must appear that his inability to fend for himself will result in injury or detriment to him which would not be suffered by an ordinary homeless person who was able to cope. (emphasis added)

Although never enshrined in statute, this interpretation has become known as the ‘Pereira Test’ and has been relied upon by local authorities when assessing applicants for the homelessness duty.

The use of ‘ordinary homeless person’ has a huge impact in such a comparison, when considering the differences between the population of ‘ordinary persons’ and those of ‘ordinary homeless persons’. As just one example, the average life expectancy of a homeless person is on average 47 against the 78-82 average for the general population.

The Appeal: Ordinary Person who is Homeless or Ordinary Homeless Person?

The application involved three appellants: Hotak, Kanu and Johnson. Their situations starkly illustrate the high bar placed by local authorities in their interpretation of the Pereira Test.

Sifatullah Hotak came to the UK as a refugee from Afghanistan in 2011. He is described as having ‘significant learning difficulties’ with an IQ of 47, history of self-harming and symptoms of depression and post-traumatic stress disorder. He is reliant on his brother to support him with day-to-day activities such as washing and meals. After needing to leave their previous accommodation due to overcrowding, Hotak made an application to Southwark Borough Council under the vulnerability category. This was rejected on the basis that Hotak was not in priority need and that, if he was made homeless, he would be provided with the necessary support by his brother.

Patrick Kanu has physical problems, back pain, hepatitis B, hypertension, haemorrhoids, psychotic symptoms and a risk of suicide. Although the Medical Assessment Service advised that he should be treated as having priority need due to risk of self-harming or harming others, his application to Southwark Borough Council was rejected on the basis that he had not become homeless unintentionally and so was not in priority need. The reviewer was ‘not satisfied that if [Mr Kanu’s] household was faced with street homelessness they would be at risk of injury or detriment greater than another ordinary street homeless person’.

Craig Johnson is described as a ‘persistent offender’, who has spent most of his life in and out of prison. He made an application to Solihull Borough Council under the vulnerability category on the basis that he was addicted to heroin, had lower back trouble and suffered from sleeping problems, depression, paranoia and asthma.  An internal review of his case (which can be requested under s.202 of the Act) upheld the refusal on the basis that he was ‘not less able to fend for [himself] than an ordinary homeless person’ and ‘[e]ven if [he does] slip back into using drugs, this would not necessarily be anything unusual in relation to homeless people’ such that the reviewer was satisfied that ‘there is nothing that differentiates [him] from other homeless people’.

One of the key issues faced by the court was summarised by Lord Neuberger in the leading judgment as:

Does the assessment of whether an applicant is vulnerable for the purposes of section 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?

Firstly, vulnerability as an adjective ‘carries with it a necessary implication of relativity’, and therefore an exercise of comparability is appropriate. Secondly, Neuberger rejected the notion that the group for the applicant to be compared against is ‘the ordinary homeless person’ or even a ‘notional homeless person based on the particular authority’s experience’ and instead argued that Hobhouse LJ should have been taken to refer to ‘an ordinary person if made homeless’.

He also emphasised, following the 2014 judgment in Ajilore v London Borough of Hackney that the use of statistics to assess vulnerability is ‘a very dangerous exercise whatever the correct test of vulnerability’. For example, it would be incorrect to judge whether a person is vulnerable based on the prevalence of that vulnerability, such as mental or physical illness, within that particular population.

The appeal in Kanu was allowed and the review decision by the local authority quashed. The appeal in Johnston was dismissed, as it was felt although the reviewer had used the wrong test, the outcome was unaffected by this. The appeal in Hotak was also dismissed, but further submissions were invited for consideration regarding his application.

Consequences 

The issue in this case may appear in some ways to be a matter of semantics, however the impact of a few letters could have on the lives of single homeless people cannot be under-estimated.

Jon Sparkes, Chief Executive of the housing charity Crisis (who intervened in the appeal) welcomes the judgment, stating:

This ruling represents a major step in tackling the injustice faced by so many single homeless people in England today…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.

However, and unfortunately, it must be noted that temporary accommodation (an expensive form of housing which can involve local authorities renting properties from private landlords at market rate) is already under a huge amount of pressure. According to statistics released by the Department for Communities and Local Government, in December 2014 the number of households in temporary accommodation stood at 61,970, a 9% increase on the previous year. (Shockingly, these households contain over 90,000 children).

With more people eligible for help, many such as Richard Livingstone of Southwark Council, expect the pressure to increase. Heightened demand in an environment of increased cuts and continued austerity on a national and local level raises the serious question of how such accommodation will be sourced.

Further, as highlighted by the housing charity Shelter, there will still be those – such as Mr Johnson – to whom no duty is still owed, and whom will still face homelessness. This is a situation compounded by the strictness of the homelessness legislation and chronic lack of affordable housing. As Shelter argues, ‘until our housing shortage is properly addressed, and the holes in our housing safety net patched up, the stark truth is that some vulnerable people will continue to fall through the gaps – and, tragically, some will be the visible face of homelessness our streets’.

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Tagged: Housing Law

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