The Downward Drag of Pereira: Ongoing disputes with Vulnerability By Jed Meers, University of York
In 2012, Nicola Sturgeon heralded the scrapping of ‘priority need’ assessments for homeless households in Scotland. She described the change – which effectively results in anybody unintentionally homeless being owed the full housing duty – as ‘the most progressive homelessness legislation in Europe.’ In the aftermath of the Scottish Referendum, a great deal has been written about policy divergences north and south of the border. Sadly, for those of us in England, recent cases before the High Court and Court of Appeal bring into sharp relief how brutal our treatment of the homeless can be in comparison.
In England and Wales, one of the hurdles homeless applicants still need to navigate to be owed the full housing duty is the ‘priority need’ requirement. They can do so by demonstrating they fall into one of the categories outlined in s.189 Housing Act 1996 – a standard poor law inspired barometer of pregnant women, those with children, or people in old age – with a separate catch-all category of being ‘vulnerable’ for some ‘other special reason.’ There has been a gradual decline in the numbers accepted under this category; a trend demonstrated in figure one.
It is this construction of ‘vulnerable’ which can generate a downward drag on those accepted as being in priority need. The term is not defined anywhere in the legislation itself, which has, unsurprisingly, led to a smorgasbord of legal appeals grappling with the concept and attempts by the Courts to define and refine the term on multiple occasions. The current position – stemming from Bowers  and given added gloss by Pereira  – is whether the applicant ‘when homeless, [would be] 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.’
There are two key issues to note in its interpretation. Firstly, following Johnson, the test concerns an ‘ordinary homeless person’ who is already homeless – not somebody who is non-homeless who then becomes homeless. Secondly, with particular significance to recent appeals, the ‘ordinary homeless person’ is a ‘necessarily imprecise’ hypothetical construction which is largely left to the imagination of the local authority. It is assumed that ‘a busy local housing authority will have a vast experience of the range of homeless persons,’ and as such, they are best placed to create the appropriate comparator.
The problems this test can cause have been ably demonstrated in some recent case law. The judgment in Hotak serves as an example of the Catch-22 situation which can present itself when Local Authorities stretch the Pereira test outwards. Here, the appellant had learning difficulties, a history of self-harm, depression and post-traumatic stress disorder. He relied on his brother for daily support, including ensuring his personal hygiene, changing clothes, cooking meals and handling his finances. The Local Authority decided that he was not more vulnerable than the ‘ordinary homeless person,’ as he had the support of his brother – something homeless persons rarely enjoy.
Their decision was upheld by the Court of Appeal, who saw support from others as being part of the ‘intensely fact sensitive and practical’ process of assessing vulnerability. The judgment was applied more recently in Kanu, where the applicant suffered from Hepatitis B and haemorrhoids, and family support resulted in them falling foul of the Pereira test. However, could the facts of Mr Hotak’s case not be taken both ways? If he did not receive support, could it be argued that he is living independently and therefore is no less vulnerable than an ‘ordinary homeless person’?
This downward drag effect is particularly clear when Local Authorities draw on questionable evidence to support their construction of this ‘ordinary homeless person’ comparator. A good example was provided earlier this month by the Court of Appeal in Ajilore, where the applicant suffered from hepatitis B, had a history of class-A drug use, and was suicidal. The Local Authority officer found that he was not in priority need, in part due to his assertion that ‘it was not unusual for street homeless people to have thoughts of self-harm and suicide,’ an assertion supported by a ‘report published in the British Medical Journal in 2005 [which] confirmed that homeless people do have higher self-harm incidents than the ordinary population.’ In short, a lot of homeless persons want to kill themselves, so that does not render an applicant any different from an ‘ordinary homeless person.’
However, the Court found that this ‘report’ was not a published piece of research at all. In fact, it was a letter sent to the Journal by a General Practitioner, which detailed the result of a survey of 116 of their patients. In this small sample, 7.2% had an episode of self-harm or suicide attempts. This did not prevent the Court upholding his decision, deciding instead that ‘the statistics were used by the reviewing officer in order to back up the conclusions that he had drawn from his own knowledge of an ordinary street homeless’ person. Effectively, the statistics were for the purposes of illustration, instead of providing evidence per se.
The same approach has been used recently to justify denying a housing duty to those who have used drugs. In Johnson v Solihull, the applicant was a recovering heroin addict who had been in-and-out of prison since the age of 16. The Local Authority did not consider him ‘vulnerable’ in line with s.189, citing in their decision letter a study by Homeless Link finding that 92% of homelessness services work with people who use drugs. The logic goes that a lot of homeless people are recovering drug users, or are still using, so that does not render an applicant any different from an ‘ordinary homeless person.’
The picture as it stands appears to be at odds with the purpose behind both the Pereira Test and s.189 Housing Act 1996. The principle is to ensure that those who are more vulnerable receive assistance, but the formation of a comparator which is already very vulnerable – and supported by what can often be shaky evidence – pushes the test downwards and denies the housing duty in questionable cases. Hotak is on appeal and will be heard at the Supreme Court on 10th December, which will be the first time the highest court has considered this issue. Hopefully they will take the opportunity to re-assess the test as it currently stands, and halt its downward drag.
Jed Meers, University of York (@jed_meers)
 See Homelessness (Abolition of Priority Need Test) (Scotland) Order 2012
 Data taken from the Department of Communities and Local Government
 R v Waveney DC Ex p. Bowers  Q.B. 238
 R. v Camden LBC Ex p. Pereira (1999) 31 H.L.R. 317
 Pereira  per LJ Hobhouse
 Johnson v Sollihul  EWCA Civ 752
 Ibid  per LJ Arden
 Tetteh v Kingston upon Thames Royal LBC  EWCA Civ 1775  per LJ Gage
 Hotak v Southwark LBC  EWCA Civ 515
 Hotak  per LJ Pitchford
 Ibid  per LJ Pitchford
 Kanu v Southwark LBC  EWCA Civ 1085
 Ajilore v Hackney LBC  EWCA Civ 1273
 Ajilore  per LJ Gloster
 Ajilore  per LJ Gloster
 Johnson v Solihull 
Using the Social Security System to Deliver Housing Policy By Louise Cheung, University of Southampton
The interaction between housing policy and social security law has been my primary research interest for the last few years. My PhD research has looked at several overarching themes to unpick this topic, including; government measures to prevent repossession, the ideology of homeownership, and the state versus individual responsibility for housing costs. The political basis behind the ideology of homeownership which takes into account financial investment considerations in conjunction with the x -factor benefits of home is of particular interest, and it has been my aim to marry this together with the state’s approach towards social security law and policy. The idea of home in law has been an ever increasing popular research area in property law. To gain an understanding of the nebulous idea of home; I would refer to the excellent account of the conceptualisation of home in law by Fox O’Mahony as primary reference material.
In the UK, it is fair to say that we are a nation of homeowners and this is a product of a string of governmental policies throughout the 20th and 21st century. I have found particularly interesting the contrast from the UK and continental European countries where renting is the main tenure, and the reasons why. For an insightful perspective on this, I would refer to a superb article by Matthew Phillips about why most Germans rent. In particular, the development of social housing and its relative decline since the 1980s is a pet interest of mine when contemplating the notion of tenure. There are many fascinating accounts of the history of social housing, including, Cole and Furbey’s ‘The Eclipse of Council Housing’.
The key means-tested social security welfare benefits that I discuss in my research are Housing Benefit for renters, and Support for Mortgage Interest for mortgaged homeowners. The increasingly residualised nature of the government safety net housing costs is a key aspect of my thesis’ discussion of these welfare benefits for housing costs. With the upcoming Universal Credit reforms, these benefits will be shelved, but the theory driving the use of tax payers’ money for the use of these welfare benefits for housing in both tenures remains relevant. The eligibility criteria, the method of delivery and the use of bright line rules all give details about the policy direction which drives the regulation governing these social security benefits. Statistics about the number of welfare benefit recipients, analysis of the mention of housing in key political manifestos throughout the 20th century, and budget records are all primary material which are analysed to give this research further depth to the exploration of material, to come to functional and evidenced conclusions.
A great difficulty in my research has been pinpointing the exact nature of housing policy, and the key objectives which run through it. Through researching the history of housing policy, it seems to me that there are two common threads which guide housing policy in amongst some incoherent policy; (1) provide support for rented accommodation for low-income households (mostly as a safety net) (2) to promote homeownership to enhance individual responsibility for housing costs. It is these two guiding objectives which tie together the various discussions relevant to my research, alongside the key theoretical underpinning of my thesis, which is measuring the relative shifting of state towards individual responsibility for housing costs, be that in the rented or owner-occupier sector.
It seems to me that property law lends itself to discussion of policy. Property law is about governing relationships between land/structures and people, and policy drives relationships that people have with the land/structures, and the impact people have on land/structures. If you would like to read more about contemporary legal research in property, please visit our blog, where discussion pieces about property law’s relationship with sustainability, policy and social justice can be found. The blog was created through the gathering of early career academics at the postgraduate stream of the most recent Modern Studies in Property Law Conference in Liverpool. The property collective editors welcome blog posts from those interested in property research and its connection to sustainability, policy and social justice.
Louise Cheung (@MsLouiseCheung)
PhD Candidate, University of Southampton, Law School, Faculty of Business and Law
Property Graduate Trainee, Hertfordshire County Council