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When is harm "Significant"?

"(1) Jesse Panayiotou v London Borough of Waltham Forest
(2) Steven Smith v London Borough of Haringey
[2017] EWCA Civ 1624
19th October 2017 Lewison, Beatson and Newey LJJ

David Lintott successfully appeared for 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" 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.

Did Lord Neuberger use the term to mean that an applicant would be vulnerable if he were at risk of more harm in a significant way, a question of evaluative judgment for the reviewer as contended on behalf of the Respondent authority, the London Borough 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, Mr Panayiotou?

A unanimous Court of Appeal in which Lewison L.J. gave the leading judgment has held that the answer to this question is 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 that case.

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 disaster, in other cases a comparative test needs to be applied. In these linked appeals the relevant category was that in section 189(1)(c) of the Housing Act 1996:

"a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside."

For nearly 20 years guidance on this category came in the form of a test expressed by Hobhouse LJ in the case of R v Camden LBC ex p Pereira (1999) 31 HLR 317 at 330. However, in Hotak v Southwark LBC [2015] UKSC 30, [2016] AC 811 the Supreme Court held that, although the test was a comparative one, the comparator was not "an ordinary homeless person" as laid down in Periera but an ordinary person who is in need of accommodation. Lord Neuberger said at [53]:

"Accordingly, I consider that the approach consistently adopted by the Court of Appeal that "vulnerable" in section 189(1)(c) connotes "significantly more vulnerable than ordinarily vulnerable" as a result of being rendered homeless, is correct."

Lord Neuberger did not define "significantly" and the term has caused difficulty for County Court Judges charged with determining the issue of whether a relevant applicant is vulnerable as defined in section 189(1)(c). HHJ Lamb QC (in HB v Haringey LBC) and HHJ Luba QC (in Butt v Hackney LBC) have 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 these two appeals took the view that "significantly" is an ordinary English word that needs no further explanation. There are a number of applications for permission to appeal raising the same point which have been adjourned to await the result in this case. Given the fact that the use of this adverb is causing practical difficulty, the Court of Appeal decided to explain what is meant by it.

In these appeals both Judges held that that the respective Appellant was not vulnerable as a result of their medical difficulties and an appeal to the County Court was dismissed. Each Appellant brought an appeal to the Court of Appeal as a second appeal, the case of Smith v Haringey was heard with that of Panayiotou v London Borough of Waltham Forest because both involved consideration of what is meant by the term "significantly".

Significantly

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."

In the case of Smith v Haringey the Court of Appeal went on to determine that it was possible for Haringey to contract out its reviewing function because:
- When Haringey contracted out its reviewing function, as a result of a combination of section 149(2) of the Equalities Act 2010 and section 72 of the Deregulation and Contracting Out Act 1994, the exercise of that function was transferred to HRL and anything done by HRL was treated as having been done by Haringey. The contracting out arrangements do no more than enable HRL to carry out the practical implementation of the statutory obligations under the Housing Act Part VII (paragraphs [79]-[80]);
- Haringey's constitution, as properly understood, did not restrict contracting out its homelessness function, the decision in issue in the Smith case not being "discretionary decision-making" (paragraph [84]); and
- Haringey's procurement process itself was not flawed in that it did consider whether there were any equalities implications and decided that there were not (paragraph [87]).

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 transcript of the Court of Appeal's Judgment.

David Lintott acted for the successful Respondent local authority in the Panayiotou v London Borough of Waltham Forest appeal. He regularly acts for Local Authorities in a wide range of housing and planning matters. For more information please contact 020 7242 4986 or email clerks@cornerstonebarristers.com.