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Vulnerability redefined

Posted on 14th May 2015

It’s worth taking a moment to feel sorry for beleaguered and underfunded local authorities, especially those in London. They have a whole host of duties that they have to comply with, including the recently expanded Care Act 2014 whilst at the same time they have less funding coming from Central Government and their hands are tied to prevent them claiming additional funding from local sources. They have no sooner been told that they must provide accommodation in borough to their homeless applicants wherever possible than the election confirms that the bedroom tax remains in place; the benefit cap will fall to just £23,000 meaning it is inevitable that the gaping hole in their revenues from rents will continue for at least 5 more years. Oh, and they will have to subsidise the sale of an unknown number of Housing Association properties under the Government’s extended Right to Buy scheme.

In this climate, it is almost inevitable that they may have tried to raise the barriers for priority need as the only control on who was given a full housing duty. Caseworkers who listen day after day to people talking about how they have become homeless and need support acclimatise to the suffering of the applicants to an extent that only the most desperate of cases get through.

On 13 May 2015 we finally got to hear what the highest UK court, now the Supreme Court, had to say on the issue of who is in ‘priority need’ or ‘vulnerable’. For almost 40 years since the statutory provisions were brought in, the matter had never been in front of the final UK appeal court. Against the background of cuts and the growing funding crisis in local government, it is possibly inevitable that the stakes were finally high enough for it to proceed this far.

For those hoping for the test for priority need to be re examined and rewritten, they were not disappointed.

The Supreme Court’s decision has swept away almost 20 years of established practice. The test since 1998 has been to consider whether someone, when street homeless, would be less able to fend for themselves than the ordinary homeless person so that they would suffer injury or harm when the ordinary homeless person would not.

The test was far from perfect, primarily because it involved a lot of conjecture. The test also did not really address how carers should be treated under the test. Could they be included? The test was also set up long before the Equality Act 2010 and so what, if any, impact should the Equality Act duties on the Council have on the determination of whether an applicant was in priority need? These were all questions that were now being asked of the Supreme Court.

The Supreme Court has simplified the test to be applied by local authorities by saying that actually vulnerability should not be considered in comparison with street homeless people. The Supreme Court president Lord Neuberger said comparisons with other homeless people “could lead to vulnerable people being put out on the streets.” An applicant’s vulnerability should be considered only in comparison to the ordinary person facing homelessness. The impact of the change is that it makes it significantly easier to be in priority need as the needs of the ordinary person facing homelessness will be significantly less than the typical person who is street homeless.

The ruling is being hailed as a victory by homelessness charities.

Crisis chief executive Jon Sparkes said: “This ruling represents a major step in tackling the injustice faced by so many single homeless people.”

Despite Lady Hale’s well argued dissent on the point as to whether assistance from family members or carers can be considered on whether someone is vulnerable, it was decided that the support someone would receive from others was relevant to the question of vulnerability. However the Court has made it clear that the issue should be considered carefully and has rejected any suggestion that support from family or friends should automatically lead to an assumption that the person is not vulnerable.

The Court also considered that the Equality Act would need to be considered on the facts of the individual case and therefore it could not be disregarded. Lord Neuberger made clear that although he has previously said that a benevolent approach should be taken to reading homeless decision letters, it was nonetheless important that sufficient and clear consideration had been given to the issues involving the applicant’s disability and the Authority’s duty to confirm it had been considered.

As a housing solicitor, this appears to bring some much needed sanity to the issue. People who are facing homelessness are in a very vulnerable place. The safeguard is in place for those that would not be able to cope if homeless due to a vulnerability, like old age, physical or mental illness or some other special reason. It is important that the humanity which meant that the safeguard was first put in place is retained and this decision redresses the imbalance that had developed and makes clear that an applicant does not need to be facing imminent death if street homeless. Evidence provided to the court by the charity Crisis showed that the average age of death for a homeless person is just 47. They are nine times more likely to take their own lives and 13 times more likely to be a victim of violence.

For the same reason, I applaud the Supreme Court’s decision to make clear that the ordinary person facing homelessness is not a comparator that changes in different localities or that the duty is dependent on resources in the local area. By doing so the Supreme Court have avoided any suggestion that there can be a postcode lottery on priority need.

There will be a lot of cases that need to be reviewed in light of this decision. It will probably take several months before all decisions made or appealed under the ‘Pereira’ test are reconsidered. There will also almost inevitably be some hangover where old mindsets at the Council need to be adjusted to the Supreme Court decision. My colleagues and I have been challenging decisions in the last 24 hours which cite the Pereira test and getting replies that were still clearly maintaining the Pereira test is valid, despite the judgment clearly rejecting it.

Overall, this is an incredibly good outcome for single homeless people who have often found it very difficult to get assistance when they face homelessness. With that in mind, those who awaited the decision and spoke of how it might be the most important housing decision of the decade were not disappointed.

This decision should now mean that the vast majority of homeless people who have a physical disability or have mental ill health should be accepted as being in priority need for accommodation. Let’s hope that the Supreme Court ruling will be welcomed by local authorities…

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