Panayiotou v Waltham Forest, Smith v LB Haringey [2017] EWCA Civ 1624

Panayiotou v Waltham Forest, Smith v LB Haringey [2017] EWCA Civ 1624

The demise of significance

The Court of Appeal have considered the conjoined appeals of two homeless applicants who claimed that the Respondent housing authorities had applied a wrong legal test when considering whether or not they were ‘vulnerable’ within the meaning of s.189(1)(c) of the Housing Act 1996.

Section 189(1)(c) says that a person will be in priority need for accommodation if they are “a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason”.

Between 1999 and 2015, the established interpretation of the word ‘vulnerable’ was found in the case of R v Camden LBC ex p Pereira (1999) 31 HLR 317, 330 in which Hobhouse LJ expressed the test as:

“whether Mr Pereira is, when homeless, 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 cope without harmful effects.”

In the case of Hotak v Southwark LBC [2015] UKSC 30, Lord Neuberger approved a comparative test, but determined that the correct comparator was not “an ordinary homeless person”, but rather “an ordinary person if made homeless” [58], or “an ordinary person in need of accommodation” [59]. The expression to “fend for oneself” was disapproved, because it is the case that a vulnerable person may be able to fend for themselves but still fall within the definition [41].

In Hotak, the term ‘vulnerable’ was defined as connoting “significantly more vulnerable than the ordinarily vulnerable as a result of being homeless”.

What, exactly, had Lord Neuberger meant by the word significantly? Some courts favoured whatever reasonable interpretation had been adopted by any particular housing authority, others favoured a dictionary definition which should not be subject to interpretation. Arguments arose to whether ‘significantly’ meant more than de minimis, or whether there was a group of people who were more vulnerable than an ordinary person but not significantly so, creating kind of middling vulnerable who were not quite vulnerable enough. Did ‘significantly’ mean ‘vulnerable plus’? The problem had arisen because Lord Neuberger had imported a quantitative test.

In Panayiotou, the Court of Appeal has revisited these authorities and provided its thoughts on what Lord Neuberger might have meant by ‘significantly’, and what the definition of ‘vulnerable’ actually is.

The Court of Appeal has rejected the suggestion that Lord Neuberger imported a quantitative test. Rather, it is a qualitative test, requiring a consideration of the applicant’s particular characteristic and deciding whether that characteristic would have noticeable difference in the applicant’s housing context.

The test is set out fully at [64], but the main takeaway is this: “would it [the applicant’s relevant characteristic] make a noticeable difference to his ability to deal with the consequences of homelessness?”

The Court of Appeal’s decision will have the effect that housing authorities will have to apply a lower test than was previously thought under Hotak. References to the word ‘significantly’ will suggest that a higher threshold has been applied, and will be unsafe decisions.

It is always the case that a well-reasoned and carefully worded decision will be difficult to challenge. Housing authorities are encouraged to review their precedent letters with immediate effect.