Jesse Panayiotou v London Borough of Waltham Forest
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Beatson,Lord Justice Newey |
| Judgment Date | 19 October 2017 |
| Neutral Citation | [2017] EWCA Civ 1624 |
| Docket Number | Case No: B5/2016/1023 & B5/2016/3856 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 October 2017 |
[2017] EWCA Civ 1624
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
RECORDER BELLAMY & RECORDER LOWE QC
B40CL365 C40CL135
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
Lord Justice Beatson
and
Lord Justice Newey
Case No: B5/2016/1023 & B5/2016/3856
Mr Martin Westgate QC & Ms Tessa Buchanan (instructed by Edwards Duthie) for the Appellant
Mr David Lintott (instructed by London Borough of Waltham Forest Legal Services) for the Respondent
Mr Toby Vanhegan & Mr Riccardo Calzavara & Mr Matthew Lee (instructed by Morrison Spowart Solicitors) for the Appellant
Mr Sean Pettit & Mr Brynmor Adams (instructed by London Borough of Haringey Legal Services) for the Respondent
Hearing dates: 9 th & 10 th October 2017
Introduction
No one would wish to be homeless or threatened with homelessness. But for anyone who finds himself or herself in that unfortunate position, his or her situation is greatly improved if he or she is "in priority need". In such a case a local housing authority has a positive duty to secure accommodation for such a person, either temporarily or on a longer-term basis, rather than simply providing advice and assistance. So knowing whether someone has a priority need is critical. In 2015/16 57,750 households in England were accepted as being homeless and in priority need: an increase of 6 per cent on the previous year.
There are some categories of person who automatically qualify as having a priority need: pregnant women, or people made homeless by flood, fire or other disaster, for example. But in other cases a comparative test needs to be applied. The particular category of person with whom we are concerned is described 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 housing needs officers, reviewing officers and the courts have been guided in making the assessment by R v Camden LBC ex p Pereira (1999) 31 HLR 317, 330 in which Hobhouse LJ expressed the test as follows:
"The council must consider whether Mr Pereira is a person who is vulnerable as a result of mental illness or handicap or for other special reason. 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."
The Pereira test has been given statutory force in Wales ( Housing (Wales) Act 2014, section 71); but the Supreme Court considered the correctness of this test as regards England in Hotak v Southwark LBC [2015] UKSC 30, [2016] AC 811. They held, consistently with Pereira, that the test was indeed a comparative one. However, they held that the comparator was not "an ordinary homeless person" as laid down in Pereira, but an ordinary person if made homeless rather than an ordinary person who is actually homeless (per Lord Neuberger at [58]) or an ordinary person who is in need of accommodation (per Lord Neuberger at [59]). In addition they held that the expression "fend for [oneself]" should no longer be used, since people who are vulnerable can sometimes fend for themselves (per Lord Neuberger at [41]).
Instead, 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 explain what he meant by "significantly". Therein lies the problem raised by these two appeals. Does it mean any degree of comparative vulnerability which is more than trivial; or does it mean something different? If so, what?
Since both these appeals are second appeals, our focus must be on the original decision letters rather than the judgments in the intermediate appeal courts.
Panayiotou v Waltham Forest LBC
Mr Panayiotou is a young single man. He made an application for homelessness assistance to Waltham Forest in February 2015. In March 2015, Waltham Forest decided Mr Panayiotou was not in priority need. This decision was subsequently withdrawn and a new decision made in August 2015, which also held that he was not in priority need.
Mr Panayiotou requested reconsideration as he was entitled to do, and Waltham Forest issued a review decision on 15 October 2015. In that decision it once again decided that he was not in priority need.
The reviewer referred to the decision in Hotak as follows:
"In deciding whether you are vulnerable in accordance with section 189 (1)(c) of the Housing Act 1996 I must ask myself whether you would experience significantly more harm than an ordinary homeless person if homeless. The test employed to assess whether or not you are deemed to be vulnerable is laid down by the Supreme Court in [ Hotak]."
It is common ground that the reference to an "ordinary homeless person" as opposed to "an ordinary person if made homeless" was no more than a slip of the keyboard.
The reviewer noted the evidence from Mr Panyiotou's GP, to the effect that he was vulnerable as a result of his mental health issues and had been referred to a psychiatrist, as well as the evidence from the local authority's medical adviser, NowMedical, to the effect that his difficulties were not sufficient to render him vulnerable. The reviewer considered that the local authority was entitled to prefer the evidence of NowMedical over that of Mr Panayiotou's GP. The reviewer went on to note that Mr Panayiotou had no mobility problems and was able to function independently. She took into account the information that he had provided that he had no family and that he lived in fear of gangs and of his father. He had no money, regular work or family to help him. She also noted that he was not receiving treatment for his depression and anxiety; and that he could read, write and access services. She concluded:
"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."
She considered the original decision and although it had applied the pre- Hotak test, she was satisfied that it would have been the same even if the Hotak test had been applied. Having referred to statutory guidance she concluded once more:
"It is for the local authority to establish whether a person who is old, mentally disordered or disabled, or physically disabled is as a result at more risk of harm from being without accommodation than an ordinary person would be. It is a fact that everyone to some extent is at risk of harm from being without accommodation and to a certain degree "vulnerable" in the dictionary sense of being susceptible to harm. For this reason, the comparison must be considered with ordinary people generally."
The reviewer went on to consider whether Mr Panayiotou might be "vulnerable for any 'other special reason' because of a combination of factors which taken alone may not necessarily lead to a decision that they are vulnerable". She said:
"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."
The reviewer went on to consider the public sector equality duty ("PSED"). As mentioned, she accepted that Mr Panayiotou had a disability within the meaning of the Equality Act 2010 (namely his depression and anxiety), and said that she had considered the impact of that disability in coming to the conclusion that he was not in priority need for housing.
Mr Panayiotou's appeal to the county...
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