10 November 2017, by Connor Johnston
At  of Hotak v Southwark LBC  UKSC 30,  AC 811, Lord Neuberger explained that whether or not a homeless applicant was ‘vulnerable’ within the meaning of s189(1)(c) Housing Act 1996 required consideration of whether he or she would be ‘significantly more vulnerable than ordinarily vulnerable’ as a result of being rendered homeless. In the conjoined appeals of Panayiotou and Smith, the Court of Appeal considered the meaning of the word ‘significantly’ in this context as well as a number of issues relating to the contracting out of homelessness decision making in instances where the public sector equality duty under s149 Equality Act 2010 is engaged.
In relation to the first issue, the question for the court was whether the word ‘significantly’ denoted ‘any degree of comparative vulnerability which is more than trivial’ or whether it meant something else, and if so, what? Lewison LJ (with whom Beatson and Newey LJJ agreed) took the latter view. ‘Significantly’ did not mean ‘more than minor or trivial’. Rather, it involved a qualitative and not a quantitative assessment.
I do not, therefore consider that Lord Neuberger can have used “significantly” in such a way as to introduce for the first time a quantitative threshold, particularly in the light of his warning about glossing the statute. Rather, in my opinion, he was using the adverb in a qualitative 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.
Or, to put it another way, ‘an applicant would be vulnerable if he were at risk of more harm in a significant way’. See . Harm in this context refers to ‘an impairment of a person’s ability to find accommodation or, if he cannot find it, to deal with the lack of it’. The latter might take the form of ‘an expectation that a person’s physical or mental health would deteriorate; or it may be exposure to some external risk such as the risk of exploitation by others’. See . The assessment of these issues involves an evaluative judgment on the part of the local housing authority. See  and .
Adopting this approach the court went on to dismiss Mr Panayiotou’s appeal as the reviewing officer had not applied a quantitative threshold and had simply asked whether he would suffer ‘more harm’ if he were without accommodation than an ordinary person would. However, Mr Smith’s appeal was allowed. The reviewing officer in that case had said that:
It may very well be the case that you are more vulnerable than ordinarily vulnerable but I am not satisfied that you are significantly more vulnerable or even [more] vulnerable than ordinarily vulnerable.
The acknowledgment that Mr Smith might be ‘more vulnerable than ordinarily vulnerable’ should have led to the conclusion that he had a priority need. The fact that it did not suggest that he had wrongly adopted a quantitative or ‘more harm plus’ approach.
In relation to the public sector equality duty under s149 Equality Act 2010, the issue for the court was whether a local housing authority, pursuant to s70 of the Deregulation and Contracting Out Act 1994 and The Local Authorities (Contracting Out of Allocation of Housing and Homelessness Functions) Order 1996, SI 1996/3205, could lawfully outsource its homelessness functions in instances where the duty was engaged. The point taken on behalf of Mr Smith was that the public sector equality duty applies to the local housing authority itself and is non-delegable meaning that it cannot be outsourced. The court rejected this line of argument. Section 72 of the Deregulation and Contracting Out Act 1994 had the effect that where a local authority outsourced any of its functions, any acts or omissions on the part of the person to whom the functions had been outsourced were to be treated as those of the local authority. As such there had been no improper delegation of the duty. Nor had the contracting out of its homelessness functions been in breach of Haringey’s constitution.
The full judgment is available here: Panayiotou v Waltham Forest London Borough Council; Smith v Haringey London Borough Council  EWCA Civ 1624
Tessa Buchanan appeared for the Appellant, Jesse Panyiotou.
This is a judgment which housing practitioners have been waiting some time for. And it certainly provides a degree of clarity as to how to approach the assessment of vulnerability. Though as – the court observed – the danger with this kind of guidance is that it may simply replace ‘one imprecise formulation of the test with another’ posing a risk (in the words of Lord Hughes in R v Golds  UKSC 61,  1 WLR 5231) of ‘further semantic debate about the boundaries of meaning of the synonym’. See  and .
With that note of caution, my reading of the guidance – which is no doubt open to debate – is that the significance of an applicant’s vulnerability is primarily a question of its relevance to the applicant’s ability to deal with the consequences of homelessness. I.e. will a particular characteristic or condition have a noticeable effect on the applicant’s ability to find accommodation or, if it cannot be found, to deal with the lack of it? If so, then it is of significance. But if the effect is not noticeable, is something that would be experienced by any ordinary person, or is entirely unrelated to the ability to find accommodation or deal with the lack of it, then it will not be of significance. This approach focuses on the nature or quality of the condition which would seem to be in keeping with the court’s reference to a qualitative assessment.
The focus should not, on the other hand be (or solely be) on the degree of magnitude of the harm. So it is not as simple as asking whether the effect of a condition or characteristic is ‘more than minor or trivial’, or at the other end of the spectrum, whether it would result in ‘more harm plus’: a quantitative assessment.