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Can the Supreme Court stop austerity hitting the vulnerable hardest?

Credit to Rob Young. Used under Attribution 2.0 Generic (CC BY 2.0)

The Supreme Court

Last month the Supreme Court delivered a land mark ruling in homelessness law. The case of Mr Kanu, demonstrates how far some cash strapped Council’s had squeezed the definition of vulnerability in order to avoid treating those with a physical disability or mental health issues as having priority need. With a further 12 billion in benefit cuts on the horizon, widening inequality and rising homelessness we ask: can we rely on the law to protect our most vulnerable?

Under the Cameron administration, homelessness has now reached crisis point. Crisis and Shelter, report that rough sleeping has increased by 37% over the last three years, and last year more than 130,000 people approached their local authority as homeless (equivalent to the population of Cambridge).

Under the Housing Act 1996, local authorities have a duty to ensure accommodation for people who are homeless and in ‘priority need’. However housing shortages and spending restrictions have meant that the definition of ‘priority need’ had become the critical factor in determining who is entitled.

From 1998 a precedent referred to as the ‘Pereira Test’ had been used to assess an individual’s circumstances. Lady Brenda Hale, Deputy President of the Supreme Court, summed this up: “We had reached the point where decision–makers were saying, of people who clearly had serious mental or physical disabilities, that ‘you are not vulnerable, because you are no more vulnerable than the usual run of street homeless people in our locality’”.

Last month’s judgement throws the state’s failure to protect its most vulnerable citizens into stark relief. In early 2011, an eviction notice was served to Mr Patrick Kanu (the successful appellant) and his family. Mr Kanu was already facing debilitating health issues, including mental health concerns. He initially sought support, but was rejected by the local authority. Later that year, Mr Kanu applied again when facing street homelessness. The Local Authority refused his application on the basis that he was not considered “in priority need”.

Mr Kanu approached Cambridge House, who provided Mr Kanu, with legal advice and representation.  By this time, Mr Kanu’s health was seriously deteriorating, suffering from chronic pain, hepatitis B, and levels of hypertension flagged by his GP as “dangerous”. Even more troublingly, Mr Kanu was experiencing severe mental health issues, including bouts of psychosis, attempted self-harm (often only prevented by Mr Kanu’s wife), and suicidal thoughts. Despite the Local Authority’s own Medical Assessment Service recommending his categorisation as in “priority need”, it decided that he was not sufficiently ‘vulnerable’ to be eligible for housing. The reason given was that Mr Kanu could cope with the effects of homelessness and in any event because he was married his wife could assist him.

The Housing Act 1996 states that Local Authorities have a duty to ensure that vulnerable homeless people who are not intentionally homeless are supported into housing. In Mr Kanu’s case this vulnerability was clearly significant. Yet, it was only after four years and against a backdrop of increasingly severe health issues that Mr Kanu’s won his appeal in the Supreme Court.  Sadly, the extent of Mr Kanu’s vulnerability became clear shortly after the Supreme Court judgement. Only 3 days later, Mr Kanu died aged 48 provoking the question: ‘How vulnerable is vulnerable enough?’

Under the new ruling, the Supreme Court has done away with the previous case law, including the Pereira Test, and specifically rejected some of the expressions used in homelessness cases such as “street homelessness” and “fend for oneself”. They have also abolished the use of statistics (a particularly blunt way of establishing ‘ordinary’ levels of vulnerability), and re-established the intended meaning of a “person who is vulnerable” under the Housing Act 1996. Critically, as Lady Hale commented, this means that vulnerability will now be established in comparison “with ordinary people generally”, not “ordinary homeless people”.

Despite the positive precedent established on May 13th, as local authorities brace themselves for the £12bn in welfare cuts stories like Mr Kanu’s are likely to become more rather than less common. The disturbing possibility is that, in the face of single-minded austerity, the law will not protect the most vulnerable. Either the government must accept the cost of caring or the stark reality of the cost of cutting – for our most vulnerable the threat of deprivation and destitution.

Supreme Court announces historic decision on priority need for vulnerable homeless

Landmark homelessness case to improve right to housing for people in priority need, successfully pursued by Cambridge House Law Centre

Homlessness, disability, supreme court, priority need, vulnerability, Credit to Franco Folini. Used under Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0)

Street homeless: vulnerable?

For the first time since the homelessness provisions came into force in 1977 the meaning of ‘vulnerability’ has been considered by the highest court in the land. This is of critical important for homeless people, particularly those with disabilities who do not have children and other groups who are often not considered in “priority need”.

Increasingly vulnerable single homeless people have been refused housing and left to fend for themselves as cash strapped councils have turned away people with disabilities on the basis they are not a priority because they are able to cope or at least cope as well as an ‘ordinary homeless person’.

The Supreme Court was asked to decide how Local Authorities should approach the statutory test of vulnerability contained in the Housing Act 1996. Under the Act a homeless person without children is considered to be in priority need for accommodation if they are “vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason” S189(1)(c) HA 1996. In a series of appeals brought by Southwark and Solihull Councils, the Court of Appeal had previously ruled that a person was deemed to be vulnerable and in priority need, only if they would suffer more than an “ordinary street homeless person”.

The Supreme Court allowed the appeal of Mr Patrick Kanu against Southwark Council’s decision that he was not in priority need for housing finding that his suffering should not have been compared with a street homeless person, but rather an ordinary person who stood to lose his accommodation. The Court also rejected the submission that the Equality Act 2010 could never add anything in vulnerability cases and that instead each case should be received on an individual basis.

In response to today’s judgement Mr Stuart Hearne of Cambridge House Law Centre, and the case lawyer stated:

“This is a very welcome judgement. I would hope that it will also be welcomed by Local Authorities. It will make it much clearer who should be assisted. In the past Local Authorities were having to compare homeless applicants with other homeless people to consider who is more vulnerable – this was a very difficult decision and one that led to disputes and some very disabled people being refused accommodation. It is not in anyone’s interest, including that of Local Authorities, that people who have disabilities or mental health issues should not be housed or left street homeless.

Rough sleepers have a lower life expectancy than the general population and are more likely to have mental and physical health problems.

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”.

Available for comment:

Stuart Hearne Cambridge House Law Centre Manager and Case Solicitor

shearne@ch1889.org

Karin Woodley Chief Executive of Cambridge House

Kwoodley@ch1889.org

Notes to editor

The Supreme Court, in three appeals heard together, Kanu v Southwark LBC, Hotak v Southwark LBC and Johnson v Solihull BC was asked to decide how Local Authorities should approach the statutory test of vulnerability contained in the Housing Act 1996.

Mr Patrick Kanu had physical problems: including hepatitis B and hypertension as well as psychotic symptoms and suicide ideation.  He was cared for by his wife but despite her care, stress was raising his hypertension to what doctors characterised as “quite dangerous levels”.   Southwark Council had accepted that Mr Patrick Kanu would be in priority need for accommodation if he was on his own but decided that as he had a wife then he was not in priority need.

Mr Sifatullah Hotak is an adult with significant learning difficulties, with measured IQ on one test of 47 and a history of self-harming and depression and post-traumatic stress disorder.  His brother, Ezatullah looked after him but was also homeless.  Southwark Council decided that as Mr Hotak had a brother to care for him he was not considered to be in priority need.

The Court has overturned previous case law and guidance and has now established that:

  1. An authority’s duty to the homeless under Part VII Housing Act 1996 is not to be influenced or affected by the resources available to the authority.
  2. The correct comparator when assessing whether someone is vulnerable for the reasons in s189 (1)(c ) is an ordinary person if made homeless.
  3. Support from a third party can be taken into account when assessing whether a person is vulnerable but that needs to be applied with “considerable circumspection” and that the fact of support in itself is not enough.
  4. In the case of an applicant who has or may have a disability then at each stage of the decision making process the decision maker must have due regard to the need to achieve the goals of the Equality Act 2010 which include the need to eliminate discrimination, advance the equality of opportunity between those that have a disability and those that do not and to take active steps to meet the needs of those with a disability. S149 (1) (a)- ( c) Equality Act 2010.
  5. That the consideration of the public sector equality duty must be exercised “in substance, with rigour and with an open mind”.

The full judgment can be downloaded from the Supreme Court website:

https://www.supremecourt.uk/news/latest-judgments.html

Mr Patrick Kanu was represented by Mr Stuart Hearne of Cambridge House Law Centre.  His barristers were Mr Zia Nabi of Doughty Street Chambers and Ms Helen Mountfield QC of Matrix Chambers.

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