In his oral arguments in the recent Supreme Court decision in Hotak, Jan Luba QC argued that ‘the safest course when dealing with a statute is to drink from its pure waters.’ He was talking about s.189(1)(c) Housing Act 1996, which details the ‘priority need’ hurdle homeless applicants must navigate to be owed a housing duty by their Local Authority.
Another post on this blog has outlined s,189(1)(c) and the problems with its interpretation through the so-called Pereira Test. The approach taken was to assess the applicant’s vulnerability against that of an ordinary street homeless person, which in turn led many homeless applicants who plainly appeared to be in need of assistance – such as Mr Ajilore – to be denied a housing duty under s.193 Housing Act 1996. This position had come under sustained criticism for moving far beyond the ‘pure waters’ of the statute, and creating discretionary space for the infiltration of considerations absent from the original intentions of the legislation.
However, in a landmark decision, the Supreme Court has reconsidered the meaning of ‘vulnerable’ under s.189(1)(c), ruling that its interpretation should be revised.
The facts of the three claimants (outlined in detail in paras.19-33) each turn on a particular element of the Pereira Test. In his lead judgment, Lord Neuberger outlined the three key issues addressed in the case: (i) whether the assessment of vulnerability requires an exercise in comparability, and if so, to whom; (ii) whether support from others can be taken into account when assessing vulnerability; and (iii) what role, if any, does the Public Sector Equality Duty under the s.149 Equality Act 2010 play. I will deal with each of these.
Firstly, the judgment is clear that ‘vulnerability’ necessitates some exercise of comparability, as an adjective which carries ‘a necessary implication of relativity’ (para.51), akin to the assessment of being ‘tall’ (para.92). Clearly, comparison demands a comparator. Here, the Court dispensed with the ordinary street homeless person, which was considered to be against the original intentions of the legislation and lead to ‘arbitrary and unpredictable outcomes’ (para.56). In other words, in the use of a street homeless person as a comparator, the test was assessing vulnerability using an already incredibly vulnerable benchmark. Instead, the Court assessed that an ‘ordinary person who is in need of accommodation’ (para.59) was the appropriate comparator.
The question in interpreting s.189(1)(c) therefore, is – simpliciter- whether the applicant would be, when homeless, significantly more at risk of harm than an ordinary person in need of accommodation (para.52). Perhaps with some of the more ornate constructions of comparators by Local Authorities in mind, the Court was clear that this ‘ordinary person’ is: ‘robust and healthy’ (para.71), made without reference to the resources available to the Local Authority (para.39), and cannot be formed from the ‘very dangerous’ use of statistics (para.43).
Secondly, the majority of the Court considered that taking into account support from third parties was a relevant factor which flows from the ‘contextual and practical’ nature of s.189(1)(c) (para.62), albeit with the requirement that such support would – if it were to mitigate a finding of priority need status – have to be provided on a ‘consistent and predictable basis’ (para.65).
The final key issue is the role played by the Public Sector Equality Duty (PSED). The judgment highlighted it as ‘complementary’ duty, requiring a sharp focus on: (i) whether the applicant has a protected characteristic under Chapter 1 of the 2010 Act, (ii) the extent of this, (iii) the likely effect of the protected characteristic in the broader context of the applicant’s position if they were to be made homeless, and (iv) whether this results in them being ‘vulnerable’ (para.78).
The ruling of the Court is a long-awaited decision which is likely to have far-reaching consequences. There are two points worth noting here.
Firstly, the revised judicial interpretation coupled with the complementary PSED, appears to enhance obligations towards those with disabilities. Indeed, it may well be the case that the findings of fact inherent in the process to claim DLA (or PIP) would prima facie render the applicant vulnerable. Even for lower rate components, the factual tests inherent – such as being unable to walk outdoors ‘without guidance or supervision from another person most of the time’ (s.73(1)(d) SSCBA 1992) – would appear to indicate that such an applicant, when homeless, would be significantly more at risk of harm than a ‘robust and healthy’ (para.71) ordinary person in need of accommodation (para.52).
Secondly, there is clear anxiety in the lead judgment to ‘emphasise the primacy of the statutory words’ (para.59), and consequently avoid the construction of already highly vulnerable ‘street homeless’ comparators. However, this inevitably leads to the question of what characteristics – if any – such a comparator possesses, and how ‘significantly more at risk of harm’ should be interpreted with reference to them (para.51).
Though this judgment is a positive step forward from the old downward drag of Pereira, the spaces it leaves in its re-casting will result in significant further litigation. In emphasising the original meaning of the statute, the Supreme Court has attempted to return to ‘purer waters,’ but quite how the revised interpretation of s.189(1)(c) will work in practice within Local Authorities already straining under huge financial pressures, remains to be seen.
 Incidentally, for those looking to fill a quiet evening, it is now possible to watch all UKSC hearings on their ‘on demand’ service. The footage of Jan Luba QC’s remarks can be see here https://www.supremecourt.uk/watch/uksc-2013-0234/151214-am.html at 58:04 – 58:17.
By Jed Meers, University of York