Homelessness and vulnerability

What is the correct test as to whether a person has a priority need for accommodation by reason of vulnerability? Riccardo Calzavara reports on an important Court of Appeal ruling.

A person has a priority need for housing if inter alia he is “vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason”: s.189(1)(c), Housing Act 1996. It was previously considered that whether a person was vulnerable required consideration of whether he would be less able to fend for himself when homeless so that he would be more likely to suffer injury or detriment than an ordinary homeless person: R. v Camden LBC ex p Pereira (1999) 31 H.L.R. 317, CA.

In Hotak v Southwark LBC [2015] UKSC 30; [2016] AC 811; [2015] H.L.R. 23, the Supreme Court held, inter alia, that a person is vulnerable if he is “significantly” more at risk of harm without accommodation than an ordinary person would be. For these purposes, an ordinary person is “an ordinary person who is homeless” not an “ordinary homeless person”.

Each of the appellants applied to their respective local housing authorities for homelessness assistance. Both sought a review of the authorities’ decisions that they were not in priority need and, on receipt of negative review decisions, appealed to the county court alleging, inter alia, that too high a threshold had been applied when considering whether they were “significantly more vulnerable than ordinarily vulnerable”. Both appeals were dismissed and both appealed to the Court of Appeal on what “significantly” meant in Hotak. The appeals were heard together.

The Court of Appeal held in Panayiotou v Waltham Forest LBC; Smith v Haringey LBC [2017] EWCA 1624, 19 October 2017 (Lewison, Beatson, and Newey LJJ) that “significantly” does not introduce a quantitative threshold, rather, it is to be read as applying a qualitative test: “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”, per Lewison LJ, at [64].

In Mr Panayiotou’s case, it was held that there was no trace of any quantitative threshold being applied when the review decision-maker said “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.” His appeal was dismissed. In Mr Smith’s case, however, it was held that the review decision-maker had applied “significantly” as importing a quantitative threshold when 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.” His appeal was allowed.

Each party had an additional ground of appeal: Mr Panayiotou alleged that the review decision-maker had failed to make relevant findings of fact. That ground was dismissed on the facts.

Mr Smith’s additional ground had three parts, each of which was dismissed. The review decision had been carried out by a company for Haringey’s ALMO, to whom Haringey had delegated decisions on homelessness reviews. Mr Smith argued that it was impermissible to contract out homelessness functions because the authority were not able to delegate their public sector equality duty (PSED) under s.149(1), Equality Act 2010. Although the court noted that the PSED is non-delegable, this part of the ground was dismissed because, inter alia, functions exercised on behalf of an authority are deemed to have been exercised by the authority themselves (s.72, Deregulation and Contracting Out Act 1994), and because the external body had its own PSED (s.149(2) Equality Act 2010) there was no gap in its application.

Further, Mr Smith argued that Haringey LBC were not entitled to contract out their homelessness functions because their constitution prohibited the contracting out of “discretionary decision-making”. This part of the ground was dismissed: decisions taken within the authority’s homelessness function are not discretionary (for the reasons given in Tachie v Welwyn Hatfield BC [2013] EWHC 3972 (QB); [2014] PTSR 662).

Finally, Mr Smith argued that the procurement process by which the external body was appointed was flawed because the authority had not considered the PSED at the relevant time. This part of the ground was dismissed on the facts.

Riccardo Calzavara is a barrister at Arden Chambers. Together with Toby Vanhegan, he appeared for the appellant in Smith v Haringey LBC. Riccardo can be contacted on 020 7242 4244 or This email address is being protected from spambots. You need JavaScript enabled to view it., while Toby can be reached on 020 7242 4244 or This email address is being protected from spambots. You need JavaScript enabled to view it..