There have been a number of priority need cases in the Court of Appeal recently and Johnson v Solihull MBC, June 6, 2013, unreported [from a lawtel note] is another one.

Mr Johnson was 37 years old. He was a heroin addict, suffered from depression and had spent many periods in custody since he was 13 or 14 years old. For several years he had not had his own home, and would either stay with friends or family or sleep rough. He subsequently applied to Solihull for assistance under Part 7, Housing Act 1996. The authority decided that he did not have a priority need because he was not vulnerable. This decision was upheld on a review. In doing so, the reviewing officer, when comparing Mr Johnson to the “ordinary homeless person”, referred to a report which contained statistics demonstrating that a number of homeless people suffered from mental illnesses and drug problems.

The county court dismissed Mr Johnson’s appeal and Mr Johnson appealed to the Court of Appeal. He contended that (1) the reviewing officer had wrongly applied the test of vulnerability, as she had used as the comparator a homeless person affected by drug use rather than a homeless person who did not have such issues; (2) the composite assessment approach required of the reviewing officer when she considered “other special reason” under s.189(1)(c) meant that she should consider the individual factors and how they related to each other; (3) the judge had been wrong to limit to long-term prisoners the application of the Homelessness (Priority Need for Accommodation) England Order 2002 art.5(3), which provided that a person who was vulnerable as a result of having served a custodial sentence had a priority housing need.

The Court of Appeal dismissed the appeal. The reviewing officer had been entitled to, when comparing Mr Johnson’s circumstances to the ordinary homeless person, to determine that the ordinary homeless person was likely to suffer from mental illness and / or drug problems and it could not be said that the reviewing officer had failed to consider all of Mr Johnson’s circumstances together.

Nor was the reviewing officer wrong to find that Mr Johnson was not vulnerable by way of his imprisonment; he had not become institutionalised and the other evidence showed that his released had not led to him being vulnerable.

Comment

This decision, in my view, is contrary to the purpose of the Act and takes Pereira a step further than was intended. The purpose of the Act was to ensure that people who are at more risk of suffering harm when homeless are given accommodation. I freely accept that to make that judgment you need a comparator, but the comparator should be someone who is able to cope if they were homeless. The ordinary homeless person may well suffer from mental health problems, but so what? The question is whether they are vulnerable or not. If the majority of homeless people are vulnerable then the comparator should no longer be the ordinary homeless person.

It will be really interesting if this goes higher. As far as I am aware the House of Lords/Supreme Court have never looked at the question of vulnerability and this case would appear ripe for the Supreme Court to look again at Pereira and to see if it is – to use the oft quoted phrase – fit for purpose 16 years on.