Court of Appeal hands down important guidance on when a homeless person is “vulnerable”

Tuesday 31 October 2017

In a decision expected to have widespread implications for homeless applicants, the Court of Appeal has handed down guidance on when a person is vulnerable and therefore in priority need of assistance under the Housing Act 1996.

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The judgment was given in the linked appeals of Panayiotou v London Borough of Waltham Forest and Smith v London Borough of HaringeyTessa Buchanan appeared on behalf of the appellant in the case of Panayiotou. She was led by Martin Westgate QC of Doughty Street Chambers and was instructed by Simon Mullings of Edwards Duthie.

This judgment offers important guidance on the recent Supreme Court decision of Hotak and clarifies a widely debated issue in homelessness law. It confirms that applicants cannot be excluded from homelessness assistance on the basis that they are not “much” more vulnerable than the ordinary person if made homeless.

The main housing duty is owed only to those who are “in priority need” under section 189 of the Housing Act 1996.  This includes, amongst others, a person who is “vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason” (section 189(1)(c) of the Housing Act 1996).

In Hotak v Southwark LBC [2015] UKSC 30, Lord Neuberger stated that “‘vulnerable’ in section 189(1)(c) connotes ‘significantly more vulnerable than ordinarily vulnerable’ as a result of being rendered homeless” (at paragraph 53).

Following the decision in Hotak, there was much uncertainty over the meaning of “significantly” as used by Lord Neuberger, and the issue was the subject of several appeals to the County Court. Many decision-makers took the view that “significantly more vulnerable” meant “a great deal” or “much” more vulnerable than the ordinary person if made homeless, and that a person would only be in priority need if the harm or risk of harm they might suffer crossed a particular threshold of severity.

The Court of Appeal held that this was wrong. Giving the judgment of the Court, Lewison LJ explained that Lord Neuberger had used “significantly” in a qualitative, not quantitative, sense: “In other words, the question to be asked is whether, when compared to an ordinary person if made homeless, the applicant, in consequence of a characteristic within section 189(1)(c), would suffer or be at risk of suffering harm or detriment which the ordinary person would not suffer or be at risk of suffering such that the harm or detriment would make a noticeable difference to his ability to deal with the consequences of homelessness” (at paragraph 64).

The Court found that the reviewing officer in Smith “must have interpreted ‘significantly’ as importing a quantitative threshold” and had therefore erred.  On the facts, the decision in Panayiotou was dismissed.

The full judgment is available: [2017] EWCA Civ 1624

Tessa Buchanan is a social welfare practitioner and is a member of the Housing Team at Garden Court Chambers.

 

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