A Game Changer from the Supreme Court?

Tuesday, 19 May 2015 - 10:22am

Supposing you lost your job, your home, and had no family to support you. Would you consider yourself to be vulnerable? Would the Law agree?

Photograph: R/DV/RS (Flickr)
Photograph: R/DV/RS (Flickr)

In a much-anticipated decision this week, the Supreme Court clarified the law around Priority Need categories for individuals approaching their local authority as homeless. These categories are currently defined in Section 189(1) of the 1996 Housing Act:

  1. a pregnant woman or a person with whom she resides or might reasonably be expected to reside;
  2. a person with whom dependent children reside or might reasonably be expected to reside;
  3. 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;
  4. a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster.

The most challenging part of this for housing advisers, local authorities and homeless people themselves has always been category (c). Unlike the other groups, where there is an element of objectivity, the issue of ‘vulnerability’ is a matter of opinion.

Some of the challenges Homeless Link members have faced in advising people on their rights have included:

  • Is vulnerability a relative term or an absolute one? If it is relative, then relative to whom?
  • What happens if a person is not vulnerable now but will be if they become homeless?
  • Isn’t a homeless person by definition vulnerable?
  • How does one factor in the relative vulnerability of different types of homelessness (e.g. rough sleeping versus sofa-surfing)?
  • How much discretion do councils have around reaching decisions on a person’s vulnerability? Can councils reach different decisions on the basis of the same evidence? If so can anything be done about this?
  • What happens if a person is already receiving support from an organisation, such as a day centre?

Last week the Supreme Court ruled on three cases and examined the wider issues they highlighted. The cases were all appeals by people who had been found to not be vulnerable and therefore not in priority need by councils.

1. Johnson v Solihull Metropolitan Borough Council

Craig Johnson was born in 1975 and has been a persistent offender since 1991. He has been convicted of 78 offences, mostly stealing, and has been in and out of prison. Shortly following his most recent release in April 2010, he made an unsuccessful application to Solihull Metropolitan Borough Council (“Solihull”) for accommodation under Part VII, on the ground that he had priority need under section 189(1)(c). He made a further application in October 2011. He claimed to be vulnerable because (i) he had become addicted to heroin while in prison, (ii) he had “lower back trouble” and “can’t climb up stairs”, (iii) he suffered from sleeping problems, depression and paranoia, and (iv) he suffered from asthma.”
Full judgement on www.supremecourt.uk

This case was, in essence, testing what should be used as a comparison of vulnerability.

2. Hotak v Southwark London Borough Council

Sifatullah Hotak was born in Afghanistan 25 years ago and was granted leave to remain in the UK as a refugee in 2011. He has significant learning difficulties, with a measured IQ on one test of 47, a history of self-harming, and symptoms of depression and post-traumatic stress disorder. His brother, Ezatullah, entered the UK in 2006, and has recently been granted leave to remain, albeit for a limited period. Sifatullah Hotak is reliant on his brother to prompt him to carry out such routine activities as washing, changing his clothes, and undertaking personal care routines, and to organise health appointments, meals, the making of benefit claims, and the finding of accommodation.
Full judgement on www.supremecourt.uk

Here the case was testing whether somebody receiving help from a third-party affects their level of vulnerability.  

3. Kanu v Southwark London Borough Council

Patrick Kanu is currently aged 48, and has physical problems, including back pain, hepatitis B, hypertension and haemorrhoids, as well as psychotic symptoms and suicidal ideation. His wife assists him in taking the necessary drugs, but stress raises his hypertension to what his doctors characterise as ‘quite dangerous levels’, which requires an increase in the dose of the relevant drugs.”
Full judgement on www.supremecourt.uk

This was effectively testing whether a council’s Public Sector Duty under the Equality Act should have an effect on determining a person’s priority need status.

Of the three appeals before the court, the Johnson and Hotak cases were lost on the technical points under consideration, whilst Kanu won. But the effect of all three was to lead the court to clarify a number of key points and overturn some commonly held assumptions. These are explored in more detail in the accompanying briefing.

It is probably too soon to know how things will practically change as a result. It is important to note that priority needs tests have NOT been abolished in the way they have been by the Scottish Parliament. Councils will still have to interpret the law, but the goalposts on vulnerability have shifted to a degree.

Crucially, we do not know how many people will now pass the vulnerability test who would have failed last week, and the challenges or providing accommodations will persist.  

Section 193 of the 1996 Housing Act states that local authorities have to ensure when housing homeless people to whom they owe a legal duty that accommodation is suitable for the applicant and that it is reasonable for him (the applicant) to accept the offer”. The Supreme Court decision will again stimulate debate as to whether the ‘suitable’ and ‘reasonable’ criteria is met when councils offer accommodation elsewhere in the country, either temporarily or permanently. Another recent court judgment has raised further questions about the circumstances as to how and when this maybe legal. 

Homeless Link, alongside St Mungo’s Broadway, were pleased to be able to support the intervention made by Crisis and Shelter using evidence from our members. Whilst the ruling was undoubtedly a significant victory, the fact remains that any real progress could be stunted without a real commitment from central government to address the shortage of affordable housing and provide local authorities with adequate resources to support people in need of housing help.  

Supreme Court ‘vulnerability’ ruling – key points for homelessness agencies

Key points and background information for The Supreme Court ruling on Wednesday 13 May 2015.