Significantly more vulnerable – how much, or what kind?

Panayiotou v London Borough of Waltham Forest (2017) EWCA Civ 1624

This is an important court of appeal decision on the meaning of ‘significantly’ in Lord Neuberger’s definition of vulnerability under s.189(1)(c) Housing Act 1996 in Hotak v Southwark LBC (2015) UKSC 30, [2016] AC 811 (our report). Lord Neuberger, at 53, said:

“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.”

From the instant the Hotak judgment was given, we all knew that the meaning of ‘significantly’ would be the next battlefield for priority need in homeless decisions. And so it has proved. These were the joined second appeals of s.202 review decisions, both on the issue of ‘significantly’. Panayiotou v Waltham Forest and Smith v Haringey. Other cases have been stayed pending this decision.

On the cases:

Mr P’s s.202 decision read, in part:

“Applying the vulnerability test and taking into account the information in front of me, I am satisfied that your circumstances are not such for me to conclude that you are vulnerable. I am not satisfied that, as a result of your condition, you would be at more risk of harm from being without accommodation than an ordinary person would be. It is also emphasized that the comparator must be with ordinary people, not ordinary homeless people.” (…)

“Having considered the totality of your medical problems, unsettled lifestyle singularly and as a composite and having applied all of the above facts to the question of vulnerability, I am satisfied that you do not have any illness [or] disability or special reason that taken individually or collectively would render you significantly more vulnerable than an ordinary person who is homeless as described in the test case above …
I have considered that you are a 19 year old man. You said that you have recently obtained a sales job with Topshop for 8 hours a week, as you also attend College on a fulltime basis. I am aware you suffer from health issues including depression … for which you said you are now taking Fluoxetine 20mg to control the symptoms. I have taken into account that you lost your mother and brother at a very young age, leaving you in the care of your father … It is also alleged that he was abusive towards you and that you had to look after him more than he did you.
Although I sympathise with your situation, I do not think that your circumstances when considered as a whole are of an unusual degree or gravity, so that they amount to an ‘other special reason’ to render you vulnerable …
It is stated you have had little or no family support while growing up and that this was not considered in the council’s decision. As I have already acknowledged your circumstances above, I have considered whether you are vulnerable as a result … There is no evidence to establish that you are so affected that it impedes on your ability to carry out daily tasks including communicating effectively or engaging when required with services.”

Mr S’ s.202 review letter (by Minos Perdios, as Haringey had contracted out reviews – we’ll come back to this) read in part:

“In deciding whether a person is vulnerable in accordance with Section 189 (1)(c) of the above Act the Council must ask itself whether the applicant, as a result of being rendered homeless, is “significantly more vulnerable than ordinarily vulnerable”.”
He went on to quote what Lord Neuberger had said in Hotak at (53) and added:
“I agree that this is the correct assessment and that the correct comparator is an ordinary person if made homeless.”

Applying that test I must ask myself whether, as a result of being made homeless, you are significantly more vulnerable than an ordinary person. It is acknowledged that anyone who is homeless is vulnerable and that virtually everyone who is homeless suffers harm by undergoing the experience. However, I must consider whether you are significantly more vulnerable than the ordinary person if made homeless …
(Mr Perdios explained that the assessment is a ‘practical and contextual assessment of the applicant’s situation if and when homeless’, and continued:)

 … I would like to deal with what ‘more vulnerable’ means. [He set out paragraphs 52 and 53 of Hotak, and continued:] This clearly shows that a person is not vulnerable simply because they will suffer from harm. They are vulnerable if, when homeless, they will suffer significant more harm or even more harm than an ordinary person if made homeless. It is without doubt that you will suffer harm by being homeless but I am not satisfied that this is to the extent that you will suffer from harm that means that you are significantly more vulnerable than ordinarily vulnerable. For this reason I do not consider that you [are] “vulnerable” within the meaning of Section 189 (1) (c) of the Housing Act 1996.”

Then

In determining that Mr Smith was not ‘vulnerable’, Mr Perdios accepted that he had emotionally unstable personality traits and suffered from low mood, but said that this did not render him vulnerable since he did not need overnight care or any assistance with the activities of daily life, and there was no evidence of psychosis. Mr Perdios said at paragraph 15 that he was not satisfied that Mr Smith’s diagnosis “has a significant impact on your ability to look after yourself and deal with being homeless.” Mr Smith had:
“sufficient capabilities/resources to ensure that you do not come to significant more harm, injury or detriment than an ordinary person if made homeless, or indeed, more harm, injury or detriment”.
He noted Mr Smith’s GP’s opinion that his mental state would deteriorate if he continued to be homeless, but considered that “this would not be anything different to what I will find with an ordinary person if made homeless” – pointing to Mr Smith’s ability to engage constructively with advocates, medical practitioners and social workers, as well as the lack of evidence that he was genuinely suicidal.
Mr Perdios found that Mr Smith’s leg injury did nothing to change the position, since there was no evidence that the level of pain was disabling, or that his ability to mobilise or manage stairs was in any way restricted. He also found that Mr Smith’s history of cannabis abuse did not render him vulnerable: although it appeared to be causative of his anger management problems, he had not suffered any irreversible health issues as a result. Further, he could abstain from or reduce his drug use, and in any event his drug use had no impact on his “ability to manage [his] own affairs and deal effectively with being homeless”.
Mr Perdios also considered Mr Smith’s various issues ‘taken together’, and concluded:
“I am satisfied that there is nothing that significantly differentiates you from ordinary people who are homeless for the reasons given above. It does appear to me that your capabilities are not significantly compromised and you are quite capable of managing independently. Whilst I appreciate that it would be stressful being homeless nevertheless I am satisfied that you have sufficient capabilities/resources to ensure that you were not significantly more vulnerable than an ordinary person if made homeless.

I appreciate that Dr Daley and/or others have stated that they consider you a vulnerable adult. Vulnerability has a very specific definition within S189 Housing Act 1996. It is for me to consider whether you are vulnerable as defined by the Supreme Court in [Hotak]. Given all the information available to me I do not agree that you are. 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.
I would like to highlight that the Supreme Court acknowledged that anyone who is homeless suffers harm by undergoing the experience. However, I must consider whether you are significantly more vulnerable than ordinarily vulnerable and the evidence in front of me does not lead me to conclude that this is the case. It is evident to me that you are resourceful enough to prevent yourself from being significantly more vulnerable than ordinarily vulnerable or even more vulnerable than ordinarily vulnerable.”

In the judgment, the court of appeal takes vulnerability, in the statutory context, to mean:

an impairment of a person’s ability to find accommodation or, if he cannot find it, to deal with the lack of it. The impairment may be 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.

On the meaning of ‘significantly’, the court of appeal sets itself two questions:

The first question is whether we should attempt any further exegesis of what Lord Neuberger meant, and whether reviewing officers should explain what they mean by “significantly”.

But it only really answers the first one, roughly in the affirmative. There is no direct answer on whether reviewing officers should explain what they mean by ‘significantly’, but given the findings on the meaning of the word, one might assume that would have to, at least, explain their evaluation.

What does significantly mean? The court of appeal sets out its view:

The appellants in both appeals draw the analogy with the definition of “disability” in the Equality Act 2010. For the purposes of that Act section 6 provides that a person has a disability if he has a physical or mental impairment which has “a substantial and long-term effect” on his ability to carry out normal day-to-day activities. Section 212 of that Act defines “substantial” as “more than minor or trivial”. If a person has a disability as so defined, then not only is it unlawful to discriminate against him on that ground, but in addition certain categories of person, for example employers, partnerships, local authorities and public service providers have a positive duty to make reasonable adjustments.

I do not think that this is a helpful analogy. In the first place the defined term is a different word. Second, although it is true that there is a blanket prohibition on discrimination on the ground of disability, there is also a positive duty to treat a disabled person more favourably. That duty is a duty to make “reasonable adjustments”. What those adjustments are in any particular case must depend on the extent of the disability in question. By contrast, if a homeless person has a priority need and has not become homeless intentionally the local authority owes the same duty to that person, namely to secure the provision of accommodation, irrespective of whether the test (whatever it is) is only just satisfied or is obviously satisfied by a wide margin. The degree of disability will no doubt go to the fulfilment of that duty by securing the provision of suitable accommodation, but the duty itself will have been triggered. Third, whereas the test of disability in the Equality Act takes an ability to carry out normal day to day activities as its reference point, Part VII of the Housing Act 1996 is all about finding accommodation. It is also important to emphasise that an assessment of whether someone is vulnerable within the meaning of section 189 (1) (c) is a “contextual and practical” assessment (Hotak at [62]). In the case of a person who falls within the category of “old age” the focus is not on his or her chronological age but on the effect of old age on his or her ability to deal with being homeless. Likewise in the case of a disabled person the focus is not on the extent of his or her disability, but on the impact of that disability, together with whatever support is available, to deal with being homeless. By contrast the definition of “disability” in the Equality Act is concerned with an individual’s unaided capacity to carry out normal day-to-day activities. Fourth, the use of the definition in the Equality Act focusses on only some of the characteristics in section 189 (1) (c) whereas the concept of vulnerability applies to all of them.
In both Mohammed v Southwark LBC and Butt v Hackney LBC the county court held that the test under the Housing Act 1996 was the same as the test under the statutory definition of “substantial” in the Equality Act 2010. In my judgment, for the reasons I have given, that was the wrong approach.

One important point is that in using the phrase “significantly more vulnerable” Lord Neuberger described that as encapsulating the approach of this court in previous cases. So we need to look back to see what this court has said in previous cases about the difference between a person who has a priority need and one who does not. In looking at the citations, however, it is important to bear in mind that in the light of Hotak each of them uses the wrong comparator.
In R v Waveney DC ex p Bowers (1993) 1 QB 238, 244 Waller LJ said:
“In our opinion, however, vulnerable in the context of this legislation means less able to fend for oneself so that injury or detriment will result when a less vulnerable man will be able to cope without harmful effects.”

This formulation does not presuppose a quantitative test. In Pereira, in a passage I have already quoted, the test was expressed thus:
“Thus, the council must ask itself 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 be able to cope without harmful effects.”
Again, no quantitative test was envisaged. In Osmani Auld LJ put the test thus:
“One has only to attempt to apply the Pereira test to any particular case by asking the question whether the applicant would, by reason of whatever condition or circumstances assail him, suffer greater harm from homelessness than an “ordinary homeless person”, to see what a necessarily imprecise exercise of comparison it imposes on a local housing authority.”
Imprecise or not, even this formulation does not require a quantitative threshold to be passed.

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.

How does this play out in practice? Well on the s.202 decisions in these cases, the decisions were:

On Mr P’s case

There is no trace of any quantitative threshold being applied. It is clear that she simply asked herself whether as a result of a characteristic within section 189 (1) (c) Mr Panayiotou would suffer “more harm” than an ordinary person in consequence of being without accommodation. That was the correct legal test.

However, on Mr S’ case:

Mr Perdios is an extremely experienced reviewer. In De-Winter Heald v Brent LBC [2009] EWCA Civ 930, [2010] 1 WLR 990 he was said to have carried out some 3,500 homelessness reviews. No doubt in the intervening years he has carried out many more. In his decision Mr Perdios began his discussion by setting out in three numbered paragraphs a summary (together with quotations) of what the Supreme Court had decided in Hotak. I have no doubt at all that in making his decision Mr Perdios conscientiously tried to apply that test. In paragraph 8 of his decision he said:
“a person is not vulnerable simply because they will suffer from harm. They are vulnerable if, when homeless, they will suffer significant more harm or even more harm than an ordinary person if made homeless. It is without doubt that you will suffer harm by being homeless but I am not satisfied that this is to the extent that you will suffer from harm that means that you are significantly more vulnerable than ordinarily vulnerable.”

It may be that by a benevolent interpretation of this paragraph (as required by Holmes-Moorhouse v Richmond upon Thames LBC (2009) UKHL 7) one could draw the conclusion that Mr Perdios was simply equating “significantly more harm” with “even more harm than an ordinary person,” in which event I would not have thought that he had made an error of law. Given the premise that an ordinary person suffers harm by being made homeless, the differentiating feature is that the applicant will suffer even more harm than that. The same is true of his expressions of the test in paragraphs 15, 18, 24 and 26. However, in paragraph 45 he said: “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.”

If Mr Perdios concluded, as he said he had, that Mr Smith might well be “more vulnerable than ordinarily vulnerable” he seems to me to have performed the comparative exercise required by Hotak. At that point he ought to have concluded that Mr Smith had priority need. In the context of that sentence I am reluctantly driven to the conclusion that Mr Perdios must have interpreted “significantly” as importing a quantitative threshold or what Mr Vanhegan called “more harm plus”. I would therefore allow Mr Smith’s appeal.

Mr S appeal therefore succeeded on this ground.

On Mr S’ appeal, there was a further ground – did the Public Sector Equality Duty mean that homeless review decisions could not be outsourced, as a PSED duty was non-delegable.

The short answer is no – Haringey’s constitution allowed delegation and

When Haringey contracted out its homelessness functions (as permitted to do by the 1996 Order) the exercise of its functions was transferred to HRL. Anything done by HRL was treated as having been done by Haringey. Moreover, section 149 (2) of the Equalities Act 2010 imposed the PSED on HRL, so there was no gap in the application of that duty.

Comment

This is, obviously a, well, significant decision. We are unlikely to get anything more on ‘significantly’ from the court of appeal.

The emphasis on the qualitative rather than quantitative nature of the evaluation is to be welcomed. Mr Perdios has been pushing his interpretation of ‘significantly more vulnerable’ for a couple of years. It has now been found to be wrong in principle. There will be a lot of homeless reviews tarnished by that approach. ‘Significantly’ is not ‘more harm plus’. It is about the specifics of the individual’s situation. No ‘threshold’ can be set, such as ‘yes you are depressed, but you haven’t actually tried to commit suicide’, as per Mr Perdios and indeed Now Medical. The decision maker must deal with the actuality and qualitative characteristics of the applicant’s situation.

It is slightly surprising to see the court of appeal primarily attributing Lord Neuberger’s use of ‘significantly’ to the submissions of Bryan McGuire QC for Shelter and Crisis as intervenors in Hotak. That reference was to ‘significant harm’ alone, not vulnerability. Indeed Bryan McGuire’s submissions on vulnerability where that it was ‘more than de minimis’.

The contracting out decision is not wholly. I have to say, a surprise. But there have been plenty of examples of councils failing to contract out properly, or adequately, so always worth checking.

 

 

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Homeless, Housing law - All and tagged , , , .

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