Previously, councils had decided whether someone was vulnerable by comparing them with ‘an ordinary street homeless person’. This resulted in councils deciding that people with depression, risk of self-harm and suicidal thoughts were not vulnerable, because this was no different to what an ordinary street homeless person suffered. Sometimes statistics were used to show the prevalence of such issues among the street homeless.

The result was that, in order to be considered as ‘vulnerable’, a homeless applicant potentially had to be even more vulnerable than people already suffering from the bad effects of long term homelessness.

In the joined cases of Johnson, Hotak and Kanu, the Supreme Court has found this to be the wrong approach. The council should consider whether the homeless applicant is more vulnerable than “an ordinary person if made homeless, not an ordinary actual homeless person”.

This should mean far fairer assessments of whether homeless applicants are owed a duty to be housed by the council because they are vulnerable. The applicant can no longer be compared to an ‘ordinary street homeless person’ who suffered from significant problems already.

In today’s ruling, The Supreme Court has also decided that while support by a family or household member could be taken into account in deciding whether a homeless applicant was vulnerable, councils would have to be certain that the support would be consistent and predictable, and that the support would be enough to overcome the vulnerability.

In addition, the Supreme Court has confirmed that councils are not allowed to take their own resources, such as funds or available accommodation into account when deciding on vulnerability.

Crisis and Shelter, the housing charities, intervened in the Supreme Court appeal, arguing that the comparison should be with the ordinary person, not the actually homeless. Giles Peaker of Anthony Gold acted for Crisis in the intervention.

Commenting on the ruling, Giles Peaker said: “I’m proud to have worked with Crisis on the intervention and delighted that the Supreme Court agreed with our case. The purpose of the law was to ensure that people who are at more risk of suffering harm when homeless are given accommodation. The test for vulnerability had become such a high hurdle that vulnerable people were turned away. The Supreme Court has set out clearly how the law should work to fulfil its purpose”.

If you would like to talk to Giles about this case please call 0207 940 4060 or email him.