LEGAL VIEW: Ed Mitchell looks at the practice implications of a case that centred on the use of homelessness legislation
Issue: Accommodation for recovering drug users.
Case: Crossley v Westminster Council  EWCA Civ 140.
Background: Secure accommodation has to be a vital element of any drug rehab ilitation plan. The homelessness legislation, however, does not require a local authority to accommodate people just because that would help them get off drugs. It is not as simple as that. The key issue is vulnerability. This case shows how support workers can help clients show they are vulnerable under the legislation – and therefore have the right to accommodation.
The Facts: Mr C was taken into care aged three. At 13, he began to abuse heroin. Over the next 20 years, his life was marked by prison, homelessness and short-term stays in hostels. But in 2005 Mr C, while still on the streets, enrolled on and stuck to a methadone maintenance programme. He applied to Westminster Council to be housed.
Generally, a homeless person’s right to accommodation is contained in Part VII of the Housing Act 1996 if they are not intentionally homeless but are in “priority need”. The categories of priority need include a person who is “vulnerable” for a “special reason”. Case law provides that the test for vulnerability is whether a person, if street homeless, would, due to that special reason, be less able to fend for him or herself than an ordinary homeless person so that injury or detriment would result (known as the Pereira test)
Westminster rejected Mr C’s application on the grounds that during the previous nine weeks of street homelessness Mr C
had not resumed heroin abuse. According to Westminster, this showed that “detriment” (a relapse) would not result if Mr C
remained street homeless. In other words, he was not vulnerable. Mr C appealed to the county court.
The Decision: The county court allowed Mr C’s appeal. Westminster lost its appeal to the Court of Appeal which ordered it to reconsider Mr C’s application. Westminster’s approach to the evidence had placed Mr C in a “lose-lose” situation. His attempt to sort himself out had counted against him because the nine weeks of abstinence showed, according to Westminster, that he would not relapse.
But the evidence disclosed 20 years of heroin abuse and an associated chaotic lifestyle. In the light of this, Westminster’s
conclusion called for a convincing explanation. Westminster erred in law by failing to provide that explanation.
Practice Point: The courts will not interfere with the merits of a council’s vulnerability decision unless it is “perverse” – one that falls outside the zone of reasonable decisions that were open to the council. This is a high hurdle for appellants. But councils must also give reasons for their homelessness decisions.
Support workers and other professionals can play an important role in supplying the evidence that will increase the chances of a successful application.
Ed Mitchell is a solicitor and consultant editor of the Journal of Social Housing Law