Abilities of a homeless person

A homeless person is in priority need for housing, amongst other possibilities, if they are “vulnerable” as a result of mental illness or handicap or physical disability or other special reason – s.189(1)(c) of the Housing Act 1996. R -v- Camden LBC ex p Pereira (1998) 31 HLR 317 has been the leading case on the meaning of “vulnerable” since the judgment was reported. The Supreme Court changed that in Hotak v LB Southwark; Kanu v LB Southwark; Johnson v Solihull MBC [2015] UKSC 30; [2015] 2 WLR 1341. This article considers a couple of issues which now arise.

The New Test

The Pereira test was, “whether [an applicant] is, when homeless, less 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.” The Supreme Court in Hotak said this test had been treated by courts and reviewing officers as almost a statutory definition when it was simply intended to be guidance to Camden as to how to approach Mr Pereira’s application. To explain who is vulnerable by reference to a “less vulnerable” person is logically circular and therefore highly questionable. Also, the term “ordinary homeless person” can plainly be interpreted in more than one way.

The test is now that “the person who is old, mentally disordered or disabled, or physically disabled, must as a result be more at risk of harm from being without accommodation than an ordinary person would be” (Lady Hale at [93]) or “significantly more vulnerable than ordinarily vulnerable as a result of being rendered homeless” (Lord Neuberger at [53]). The Court of Appeal has since decided in Panayiotou v LB Waltham Forest [2017] EWCA Civ 1624 that "significantly" is not a quantitative test but a qualitative test so that the homeless person must simply suffer more harm than the ordinary person rather than a significant amount of extra harm on top of more harm.

The Supreme Court went on to say that “vulnerable”, like virtually all adjectives, carries with it a necessary implication of relativity. It follows that s.189(1)(c) must contemplate homeless people who would be more vulnerable than many others in the same position. However, courts and reviewing officers have wrongly been making a comparison with the ordinary person who is actually homeless rather than the correct one with the ordinary person if rendered homeless.

NowMedical and the reasonable function test

It occurs to me that there are two interesting questions left open by the Supreme Court in Hotak. The first concerns NowMedical, the organisation which provides medical advice to local housing authorities on issues such as vulnerability. As I pointed out in a previous article (Defining Vulnerability [2007] JHL 76), NowMedical’s reports do not normally purport to apply the Pereira test but a different one of their own making which refers to whether a person’s condition is such as to significantly impede their reasonable function so as to be able to fend for themselves. While someone whose “reasonable function” is “impeded” may well qualify as vulnerable, not everyone who is vulnerable within the meaning of the Act has difficulty functioning at a reasonable level – the applicant in Pereira itself provided an example in that his problem was that he might descend into drug use if homeless although he was fine if housed.

The Supreme Court in Hotak said that certain expressions, such as “street homelessness” and “fend for oneself”, have entered the vocabulary of those involved in homelessness issues which can lead to difficulties when they are applied to strictly legal problems. They may start to supplant the statutory test, which is normally inappropriate. They may be apt for the particular case, but not necessarily for the general run of cases. Also, they may mean different things to different people. “Fend for oneself” is not the statutory test and a person may be vulnerable even though he can fend for himself.

This reasoning applies equally to NowMedical’s talk of someone’s “reasonable function” being “impeded”. It seems to me that, if NowMedical do not change their language, they will open up any subsequent local housing authority decision to challenge on appeal. In Guiste v LB Lambeth [2019] EWCA Civ 1758 there was an unsuccessful attempt to import NowMedical's functionality test into the test for priority need.

Vulnerability and living independently

The second question left open by Hotak concerns local housing authorities’ assessments of a potentially vulnerable applicant’s abilities. It is very common for decision letters to assert that an applicant is able to carry out day-to-day activities and live independently. They often refer to particular activities such as being able to obtain the help of a solicitor, to communicate, to cook, to dress, to manage finances or to use public transport. The fact that these are the wrong things to look at is indicated by the fact that these abilities manifest themselves while a person is housed whereas the authority is supposed to be considering what happens to them when they are homeless. However, there is an even more fundamental problem with this approach.

In R v Oldham MBC ex p Garlick [1993] AC 509 the House of Lords had held that a person who lacks capacity cannot be regarded as a homeless person in priority need under the Act because their needs are addressed under community care legislation. They specifically stated that those who are vulnerable but nevertheless able to lead an independent existence have the status of priority need and can apply as homeless. The Supreme Court in Hotak confirmed this position by stating that the Housing Act 1996 Part VII “is primarily to do with the provision of bricks and mortar and not with care and attention for the gravely disabled which is provided for in other legislation” and, as well as Garlick, referred to R (M) v Slough BC [2008] 2008 UKHL 52, [2008] 1 WLR 1808 paras 7-29 (see particularly para 11).

Essentially, according to Garlick, a person who is vulnerable within the meaning of s.189(1)(c) of the Housing Act 1996 is commonly, by definition, a person who can live independently. It follows that pointing out that a person can live independently cannot possibly indicate that they are not vulnerable since that is a characteristic normally shared by those who are vulnerable. This is not an issue which has yet been explored in caselaw but it may well be the next big issue.