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Managing Homelessness not Rock Climbing. When is Harm ‘Significant’?

29.03.2018

There are times when you are asked to do a case and the answer leaps off the page. Panayiotou v London Borough of Waltham Forest EWCA Civ 1624 [2017] H.L.R. 48 was just such a case, but when I took it on I wouldn't have anticipated making submissions to the Court of Appeal about rock climbing in a homelessness case.

I was instructed on behalf of the Respondent local authority, the London Borough of Waltham Forest, in one of two linked appeals dealing with the issue of what is meant by the term "significantly more vulnerable than ordinarily vulnerable". This was used by Lord Neuberger in the Supreme Court case of Hotak v Southwark LBC [2015] UKSC 30, [2016] AC 811 to describe those in priority need as defined in section 189(1)(c) of the Housing Act 1996.

To determine whether a local housing authority has a positive duty to secure accommodation for a homeless applicant, whether that person has a priority need is critical. Although some categories of person automatically qualify such as pregnant women or those made homeless by flood, fire or other disasters, in other cases a comparative test needs to be applied. In Panayiotou the relevant category was that in section 189(1)(c) of the Housing Act 1996, which deals with a person who is "vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason". Vulnerable defined by Lord Neuberger as meaning "significantly more vulnerable than ordinarily vulnerable".

The essential question for the Court of Appeal was this: did Lord Neuberger use the term 'significant' to mean that an applicant would be vulnerable if he were at risk of more harm in a way significant when dealing with the consequences of homelessness, a question of evaluative judgment for the reviewer as I submitted on behalf of Waltham Forest; or did he mean that an applicant would be vulnerable if he were at risk of a particular quantity of harm, such as more than de minimis harm as contended for on behalf of the Appellant?

For those who litigate regularly in this field, the concept of a matter being an evaluative judgment for the reviewer is a familiar one. There are many cases which emphasise that the Housing Act 1996 is carefully drafted to leave questions of fact to the person entrusted with making the review decision, usually the local authority's review officer (see for example Adel William v Wandsworth (2006) HLR 42 at [19]-[20], Bubb v Wandsworth LBC CA EWCA Civ 1285 [2012] H.L.R. 13 per Neuberger L.J at [19]-[21], El Goure v RBKC EWCA Civ 670 [2012] P.T.S.R. 1664 at [41]-[45])

However, the legal test "significantly more vulnerable than ordinarily vulnerable" was causing problems in the County Court. HHJ Lamb QC (in HB v Haringey LBC) and HHJ Luba QC (in Butt v Hackney LBC) had both held that a reviewing officer must explain what is meant by 'significantly'. By contrast, Recorder Powell QC (in Ward v Haringey LBC) and both the judges in the Panayiotou appeals took the view that 'significantly' is an ordinary English word that needed no further explanation. There were a number of applications for permission to appeal raising the same point, which were adjourned to await the result in Panayiotou.

When my opponent Martin Westgate QC was making his submissions it seemed to me that he was suggesting that any amount of harm that was not de minimis must result in a finding that an applicant was in priority need, because they were in some way more vulnerable than an ordinary person made homeless. If such were the test, many people indeed would be vulnerable. Perhaps the best way to illustrate the importance of the term 'significant' as used by Lord Neuberger is to contrast what a homeless person would be expected to do when dealing with the with the consequences of homelessness and what they would not.

In my submissions to the Court, I posed the case of a homeless person who was a keen rock climber, but was unable to pursue his hobby due to a knee problem. In one sense, he was more vulnerable than an ordinary person who presumably would not have an injured knee, but was his injury significant - would it have a bearing on his ability to deal with the consequences of being homeless? Probably not. What was needed was for the reviewer to form an evaluative judgment as to whether any injury would have a significant effect on the applicant's ability to deal with the consequences of homelessness. Importantly, because any such judgment is for the reviewer it can only be challenged on the usual Wednesbury grounds - if any such finding is said to be unreasonable that means unreasonable verging on an absurdity. This gives the reviewer a wide margin within which to exercise his judgment. However, this wide margin only applies if the reviewer applies the correct legal test.

When the judgment in Panayiotou is examined it can be seen that Lewison LJ (with whom Beatson and Newey LJJ agreed) has adopted the above interpretation.

Lord Justice Lewison held that both Appellants in these appeals were wrong to draw an analogy with the definition of 'disability' in the Equality Act 2010, section 212 of which defines 'substantial' as "more than minor or trivial". Furthermore, in both Mohammed v Southwark LBC and Butt v Hackney LBC, the County Court was wrong to hold that the test under the Housing Act 1996 was the same as the test in the Equality Act 2010 (paragraphs [56]-[58]). Lord Neuberger described the phrase "significantly more vulnerable" as encapsulating the approach of the Court of Appeal in previous cases (albeit those cases had used the wrong comparator). In those previous cases, such as R v Waveney DC ex p Bowers [1993] 1 QB 238 at 24, Pereira itself and Osmani v Camden LBC [2004] EWCA Civ 1706, [2005] HLR 22, no quantitative test was envisaged (paragraphs [59]-[63].

Accordingly, at paragraph [64] Lord Justice Lewison adopted the interpretation urged on behalf of the London Borough of Waltham Forest and defined 'significantly' as follows:

"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. To put it another way, what Lord Neuberger must have meant was that an applicant would be vulnerable if he were at risk of more harm in a significant way. Whether the test is met in relation to any given set of facts is a question of evaluative judgment for the reviewer."

The Court of Appeal also held that the London Borough of Haringey was not precluded from contracting out its reviewing function by the terms of section 149 of the Equality Act 2010 or by the terms of its constitution. An issue which arose only in the Smith v Haringey case.

It followed that the Court of Appeal dismissed the appeal against the decision letter in the case of Panayiotou v London Borough of Waltham Forest where the decision maker had concluded that Mr Panayiotou "would not be more at risk of harm from being without accommodation than an ordinary person would be" (paragraphs [66]-[67]). The Court of Appeal, however, upheld the appeal against the decision in Smith v Haringey on the limited ground that, because the reviewer had concluded in respect of Mr Smith "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 reviewer must have interpreted 'significantly' as importing a quantitative threshold (paragraphs [69]-[70]).

Click here for a copy of the Court of Appeal's Judgment. The case will soon be reported in the Weekly Law Reports.