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Triple whammy in the Supreme Court – Judgment on Vulnerability and Priority Need

It is a sign of the importance of this decision that it feels like an understatement to say that tomorrow we will get the most anticipated housing law judgment of this decade. But we are just hours away from hearing what the Supreme Court have to say about possibly the most contentious question in housing law – what does ‘priority need’ in housing terms really mean and how do you get it?

Many have tried to answer the question and, until recently, it was thought that the Court of Appeal had answered it fairly adequately in R (ex p Pereira) v London Borough of Camden. For those not automatically deemed by law to be in priority need, satisfying ‘the Pereira test’ was the only way to be bestowed with the status. The Court of Appeal decided that someone was in priority need if, when street homeless, they are less able to fend for themselves than an ordinary homeless person so that injury or detriment to them will result when a less vulnerable person would be able to cope without harmful effects.

It was far from a perfect test, and it had been a test that has perplexed lawyers and doctors alike who have been asked to comment on it for the 17 years since that Judgment was handed down. However, for all its imperfections, it had remained the best and fairest way to assess whether a duty existed to the applicant. It preserved the ever increasingly rare and precious social housing stock to those who were most in need of it.

It is still slightly surprisingly however, given almost two decades have passed since that Judgment, that Wednesday’s judgment in the combined appeals of Johnson v Solihull, Hotek v Southwark; and Kanu v Southwark will be the first time we will hear whether the Supreme Court agree with the test we have been applying since 1998.

In Mr Johnson’s case – Mr Johnson was a recovering addict who had said he was likely to relapse if homeless. In the other cases before the Court of Appeal, Mr Hotak had learning difficulties and other disabilities. When he applied as homeless, Southwark Council accepted that his disabilities would make him vulnerable, but because Mr Hotak’s brother would continue to help him if he was street homeless, such continued care meant that he would not be less able to fend for himself than an ordinary street homeless person.

In Mr Kanu’s case, Southwark Council did not accept that his mental health issues were enough to make him vulnerable, partly because he had the assistance of his wife and son. A key issue in the Court of Appeal was whether the council’s decision-making was in accordance with the council’s public sector equality duty in regard to disability and whether that duty added anything to the council’s obligations under the Housing Act 1996.

When the Supreme Court hand down judgment tomorrow in Johnson et al, all housing lawyers will be looking for the link to the Judgment to digest whether the test we have been applying for almost 20 years remains good law. Waiting in the wings are a very long list of stayed appeals with many homeless applicants hoping for a clear indication from the court that the ‘ordinary homeless person’ was interpreted wrongly in Johnson v Solihull.

With funding cuts likely to get more dramatic in the coming years and social housing likely to get even more precious, the stakes are high for applicants with medical or other support needs.