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Pereira test of vulnerability to be considered by Supreme Court

The UK Supreme Court will hear a trio of cases between December 15 and 17 on the issue of which homeless applicants are deemed to be vulnerable, and entitled to assistance, by warrant of this vulnerability.   This hearing has been deemed the most important case on homelessness in decades. 

As in Northern Ireland, councils in England & Wales only owe a duty to those homeless applicants who are seen to be unintentionally homeless and in priority need.  While some categories of applicant will pass the priority need test automatically, others will need to show that they are vulnerable in some way in order to meet this hurdle.  But, it is not enough just to be vulnerable.  A case from 1998 changed the definition of vulnerable for priority need purposes, to require applicants to show that they are more vulnerable than an “ordinary” homeless person.

The cases scheduled for hearing in the Supreme Court are supported by homeless charities Shelter and Crisis.  Both charities will be submitting additional evidence which will show that there are unfair regional variations in how the current test is applied by local authorities.

The Department for Communities and Local Government has also intervened in the case, and intends to argue against the assertion that the current test is flawed.

The Pereira test

The test commonly used to establish if someone is vulnerable and, therefore, in priority need has become known as the Pereira test. The Court of Appeal, in Pereira v Camden Council, held that a person is vulnerable if their circumstances are such that they would suffer more when homeless than ‘the ordinary homeless person’ and would suffer an injury or other detriment that the ordinary homeless person would not.

This, of course, leads to the question: what is an “ordinary homeless person”?  Those of us who work with people affected by homelessness know how devastating homelessness can be.  Rough sleepers have a lower life expectancy than the general population.  They are more likely to suffer from addiction issues and to have mental and physical health problems.  The ordinary homeless person is already vulnerable, by virtue of being homeless.  Our Adviser column looked at this issue previously, when discussing the importance of strong evidence to support a claim that an applicant is in priority need. 

The challenges

Three individuals will have their cases heard in the Supreme Court.  Each case was defeated in the Court of Appeal.  The cases are

  • Hotak – an applicant with learning difficulties and depression who was found not to be in priority need as he received support from his brother
  • Kanu – an applicant who is being treated for mental health problems and
  • Johnson – a recovering drug user who suffers from depression.

If successful, the case will impact on how local authorities and the Housing Executive investigate if an applicant for homelessness assistance is in priority need.

Priority need in Scotland

In 2012, the Scottish Parliament passed The Homelessness (Abolition of Priority Need Test) (Scotland) Order 2012.  This removed the priority need test and ensured that any applicants who could prove that they are unintentionally homeless and eligible for assistance would be entitled to assistance with homelessness. 

The Infrastructure and Capital Investment Committee is currently investigating homelessness in Scotland, and sought stakeholders’ comments on the decision to abolish priority need.  Their letter to the Housing Minister acknowledges that “universal backing” for this measure remains.  However, the Committee has asked for more information to explain the subsequent rise in the number of people rejected for homelessness assistance because they were found to be “intentionally homeless”.

(Photo : Resource: Flickr/Adamina © Nathalie Sandra Bellato)

Tagged In

Outside NI, Homelessness, Legal
This article was written on 16 December 2014. It should not be relied on as a statement of the current law or policy position. For help with housing issues please contact our helpline on 028 9024 5640 or use our online chat service at www.housingadviceNI.org.