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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Panayiotou v London Borough of Waltham Forest [2017] EWCA Civ 1624 (19 October 2017) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2017/1624.html Cite as: [2017] EWCA Civ 1624, [2017] HLR 48, [2018] QB 1232, [2017] WLR(D) 688, [2018] 2 WLR 1439 |
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ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
RECORDER BELLAMY & RECORDER LOWE QC
B40CL365 C40CL135
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE BEATSON
and
LORD JUSTICE NEWEY
____________________
JESSE ![]() ![]() |
Appellant |
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- and - |
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LONDON BOROUGH OF WALTHAM FOREST |
Respondent |
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And between |
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STEVEN SMITH |
Appellant |
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- and - |
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LONDON BOROUGH OF HARINGEY |
Respondent |
____________________
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: 9th & 10th October 2017
____________________
Crown Copyright ©
Lord Justice Lewison:
Introduction
"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."
"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."
"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."
Panayiotou
v Waltham Forest LBC
"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]."
"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."
"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."
"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."
Smith v Haringey LBC
"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"."
"I agree that this is the correct assessment and that the correct comparator is an ordinary person if made homeless."
3. 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:]
8 … 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."
"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".
"43 … 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.
…
45 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.
46… 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."
The issues
i) Was Haringey precluded either (a) by the terms of section 149 of the Equality Act 2010 which imposes the PSED or (b) by the terms of its constitution from contracting out the function of conducting homelessness reviews?
ii) If not, in conducting its procurement exercise did it fail to comply with the PSED and if so, what are the consequences?
"However, the grant of permission, on which the Respondent was not heard, only shows that there were thought to be reasonable prospects of success. It does not amount to a grant of leave, binding on both parties, to rely on the new point. All it means is that the Appellant was given the right to argue in favour of this at a full hearing."
Vulnerability
i) The phrase "fend for himself" was inappropriate for two reasons. First, a person may be vulnerable even though he can "fend" for himself (Hotak at [41]). Second, whether a person is vulnerable must be decided having regard to what support is available to him including support from family members (Hotak at [49]). Accordingly "for himself" may be misleading. Although it was argued that "cope without harm with homelessness" might be a better concept than "fend for himself", that argument was rejected, because virtually everyone who is homeless suffers harm (Hotak at [52]). Unfortunately Lord Neuberger did not propose any alternative, although at [56] he posited the comparison between "the ordinary person if rendered homeless, and considers how the applicant would fare as against him".
ii) The comparator used in the Pereira test ("an ordinary homeless person") was wrong. The correct comparator is an ordinary person if made homeless (Hotak at [57]).
"… 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."
"an applicant's vulnerability if he is not provided with accommodation." (Hotak at [37])
"To answer that, one needs to know what they will be vulnerable to or at risk of harm from. The obvious answer is that they must be at risk of harm from being without accommodation: the object of the section is to identify those groups who have a priority need for accommodation. Is that enough by itself? The problem, of course, is that we are all to some extent at risk of harm from being without accommodation—women perhaps more than men, but it is easy to understand how rapidly even the strongest person is likely to decline if left without anywhere to live. So this is why a comparison must be implied. The person who is old, mentally disordered or disabled, or physically disabled, must as a result be more at risk of harm from being without accommodation than an ordinary person would be. This is what I understand Lord Neuberger of Abbotsbury PSC to mean by "an ordinary person if homeless". I agree."
"A particular inability of a person suffering from some handicap coming within paragraph (c) to obtain housing for himself can be an aspect of his inability as a homeless person to fend for himself. Such an individual may suffer from some mental or physical handicap which makes him unable to obtain housing unaided and thus makes him unable to cope with homelessness in a way which does not apply to the ordinary homeless person. But it is still necessary, as is illustrated by the decided cases, to take into account and assess whether in all the circumstances the applicant's inability to cope comes within paragraph (c). It must appear that his inability to fend for himself whilst homeless will result in injury or detriment to him which would not be suffered by an ordinary homeless person who was able to cope. The assessment is a composite one but there must be this risk of injury or detriment. If there is not this risk, the person will not be vulnerable."
""Vulnerable" means vulnerable in the context of a need for housing accommodation."
"In its immediate context, Pereira established that a homeless applicant's lesser ability than that of "an ordinary homeless person" to fend for himself in finding suitable accommodation may, on its own or in combination with other circumstances, amount to vulnerability for this purpose. However, the test does not impose as the sole, or even an integral, requirement of the notion of fending for oneself that an applicant should also be less able than normal to fend for himself in finding accommodation."
"(a) secure that accommodation is available for his occupation for such period as they consider will give him a reasonable opportunity of securing accommodation for his occupation, and
(b) provide him with (or secure that he is provided with) advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation."
"The authority shall provide the applicant with (or secure that he is provided with) advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation."
Significantly
""substantial" is capable of meaning either (1) "present rather than illusory or fanciful, thus having some substance" or (2) "important or weighty", as in "a substantial meal" or "a substantial salary". The first meaning could fairly be paraphrased as "having any effect more than the merely trivial", whereas the second meaning cannot. It is also clear that either sense may be used in law making."
"the understandable itch of the lawyer to re-define needs to be resisted. Any attempt to find synonyms for such ordinary English expressions, although they involve questions of degree, simply complicates the jury's exercise, and leads to further semantic debate about the boundaries of meaning of the synonym."
"(1) Ordinarily in a murder trial where diminished responsibility is in issue the judge need not direct the jury beyond the terms of the statute and should not attempt to define the meaning of "substantially". Experience has shown that the issue of its correct interpretation is unlikely to arise in many cases. The jury should normally be given to understand that the expression is an ordinary English word, that it imports a question of degree, and that whether in the case before it the impairment can properly be described as substantial is for it to resolve.
(2) If, however, the jury has been introduced to the question of whether any impairment beyond the merely trivial will suffice, or if it has been introduced to the concept of a spectrum between the greater than trivial and the total, the judge should explain that whilst the impairment must indeed pass the merely trivial before it need be considered, it is not the law that any impairment beyond the trivial will suffice." (Emphasis in original)
"a. Sufficiently great or important to be worthy of attention; noteworthy; consequential, influential.
b. In weakened sense: noticeable, substantial, considerable, large."
"To a significant degree or extent; so as to make a noticeable difference; substantially, considerably"
"Finally, she "[considered] whether [his] circumstances taken as a whole [made him] vulnerable", and stated that his "ability to fend for [himself] is not significantly compromised", and that she was "satisfied that there is nothing that differentiates you from other homeless people". "
"[84] …The review letter in his case is in my opinion a clear example of a review whose conclusion is not impeached by the fact that the proper comparator was not invoked—nor indeed by the fact that the reviewing officer inappropriately relied on statistical evidence. Thus, it appears clear from the review letter that Ms Thompson concluded that Mr Johnson did not suffer from depression, and therefore her comparison with ordinary actually homeless people and her reliance on the statistics were irrelevant as they would only come into play if he did suffer from depression: see para 21(ii) above. She also found that his physical ailments were irrelevant to the issue of vulnerability, for reasons which seem to me to be unexceptionable: see para 21(iv) above. Similarly, she concluded that his experiences in prison did not render him vulnerable: see para 21(vi) above.
[85] As to Mr Johnson's heroin problem, assuming (without deciding) that actual or potential problems with drugs fall within the expression "other special reason", it appears to me that the finding that Mr Johnson was not vulnerable on this ground cannot be faulted. It is true that the passages from the review letter quoted at para 21(v) above include references to the wrong comparator and statistical evidence. However, as with the depression and physical complaints, I consider that those references are irrelevant. That is because the earlier passages, read fairly, amount to a finding that his drug problems would have no significant effect on Mr Johnson's situation if he was homeless as he was not misusing drugs, and, even if he did misuse them, "he [would] maintain the support that he currently [had]". It is fair to say that the passage dealing with Mr Johnson's drugs problem is not conspicuous for its clarity, but that appears to be its effect."
"The appropriate test is that laid down in section 189 without any judicial gloss: is the applicant "a person who is vulnerable" on the assumption he has no accommodation? That means: is the person susceptible to significant harm? A demonstrated liability to a real or serious risk of significant harm from homelessness thus renders a person vulnerable within the meaning of the statute."
"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."
"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."
"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."
Failure to make findings of fact
Did the reviewing officers apply the correct test?
"I am not satisfied that, as a result of your condition, you would be at more risk of harm from being without accommodation that an ordinary person would be."
"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 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."
Outsourcing and Public Sector Equality Duty
"Any function of an authority which is conferred by or under Part VII of the Act (homelessness), except one which is listed in Schedule 2 to this Order, may be exercised by, or by employees of, such person (if any) as may be authorised in that behalf by the authority whose function it is."
"(1) This section applies where by virtue of an order made under section … 70 above a person is authorised to exercise any function of a … local authority.
(2) Subject to subsection (3) below, anything done or omitted to be done by or in relation to the authorised person (or an employee of his) in, or in connection with, the exercise or purported exercise of the function shall be treated for all purposes as done or omitted to be done—
(a)…;
(b) in the case of a function of a local authority, by or in relation to that authority."
"A public authority must, in the exercise of its functions, have due regard to the need to –
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to –
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities . . . ."
"Fourthly, the duty imposed on public authorities that are subject to the section 49A (1) duty is a non-delegable duty. The duty will always remain on the public authority charged with it. In practice another body may actually carry out practical steps to fulfil a policy stated by a public authority that is charged with the section 49A (1) duty. In those circumstances the duty to have "due regard" to the needs identified will only be fulfilled by the relevant public authority if (i) it appoints a third party that is capable of fulfilling the "due regard" duty and is willing to do so; and (ii) the public authority maintains a proper supervision over the third party to ensure it carries out its "due regard" duty: compare the remarks of Dobbs J in R (Eisai Ltd) v National Institute for Health and Clinical Excellence [2007] EWHC 1941 (Admin) at [92] and [95]."
"The Council for non-executive functions, and the Leader, or the Cabinet with the Leader's agreement, for executive functions, may contract out to another body or organisation functions which may be exercised by an officer and which are subject to an order under section 70 of the Delegation [sic] and Contracting Out Act 1994, or under contracting arrangements where the contractor acts as the Council's agent under usual contracting principles, provided there is no delegation of the Council's discretionary decision-making."
"[26] In my judgment, it is necessary to construe the term "discretionary decision-making" in the context of a constitutional provision clearly intended to have application across the whole range of the council's functions and responsibilities. "Discretionary decision-making" is a term intended to capture the range of relatively high-level policy or strategic decisions which the council would be wishing to retain for itself, for good and obvious reason. One may envisage a spectrum of decision-making within a local authority which entails the highest level "political" decisions at the top end and Mr Vanhegan's "robotic" decisions at the very bottom, with a significant grey area in between. Within this grey area one may well discern "elements of discretion", but I would prefer to characterise these as evaluative judgments which entail an assessment and interpretation of the available material, and the drawing of inferential conclusions from the facts as found by the local authority. I cannot accept that decisions of this nature amount to "discretionary decision-making" within the meaning of the exception to article 11.4. I should not be understood as expressing a comprehensive view about everything which is or may be within the grey area; each statutory provision would need to be looked at on its own merits with the objective of determining on which side of the line it may fall. I am confining my observations to the type of decisions I have sought to identify.
[27] Applying this approach to the context of homelessness, I agree with Mr Bhose that Part VII of the 1996 Act amounts to a tightly controlled statutory scheme, regulating the conditions as to entitlement of access to social welfare, which scheme the decision-maker has to consider and apply to the facts of individual cases, and reach a decision according to law. The focus of this process is to establish the duties, if any, owed by the local authority to a particular applicant. Different reasonable local authorities may reach different decisions on the same evidence, but that does not convert the process into "discretionary decision-making". Evaluative, yes; but policy or strategic decision-making, no."
"13. Equalities and Community Cohesion Comments
Not applicable as this report does not relate to a change or introduction of policy."
"8. Equalities and Community Cohesion Comments
8.1 There are no equalities implications."
Result
Postscript
Lord Justice Beatson:
Lord Justice Newey: