Panayiotou v London Borough of Waltham Forest

For priority need under section 189(1)(c) of the Housing Act 1996, an applicant is significantly more vulnerable where a relevant characteristic creates a risk of harm or detriment that makes a noticeable difference to the applicant’s ability to deal with homelessness. “Significantly” is qualitative and introduces no additional quantitative threshold.

The assessment is practical, contextual and comparative. The authority must compare the applicant with an ordinary person if made homeless and consider available support. A person’s ability to obtain accommodation, or otherwise deal with its absence, may be relevant.

A statutory homelessness-review function may be contracted out. The public sector equality duty continues to bind both the authority and the person exercising the public function.

These conjoined second appeals concerned decisions that two homeless applicants, Jesse Panayiotou and Steven Smith, were not in priority need under section 189(1)(c) of the Housing Act 1996. Their respective county court appeals were dismissed.

The common issue was the meaning of “significantly” in the Supreme Court’s formulation in Hotak v Southwark LBC [2015] UKSC 30, under which an applicant must be significantly more vulnerable than an ordinary person if made homeless. Mr Smith also challenged Haringey’s contracting out of homelessness reviews on public sector equality duty and constitutional grounds, and alleged non-compliance with that duty during procurement.

The court therefore considered the correct vulnerability threshold, its application in each review decision, and the legality of Haringey’s contracting-out arrangements.

1. Disposition. Mr Panayiotou’s appeal was dismissed. Mr Smith’s appeal was allowed because his reviewer applied an impermissible quantitative threshold. His case was remitted for redetermination. The contracting-out and public sector equality duty grounds were dismissed.

2. The vulnerability inquiry under section 189(1)(c) of the Housing Act 1996 is comparative, practical and contextual. The comparator is an ordinary person if made homeless. The relevant characteristic must impair the applicant’s ability to find accommodation or, if accommodation cannot be found, to deal with its absence. The impairment may consist of anticipated physical or mental deterioration or exposure to an external risk such as exploitation. Available support and the applicant’s anticipated factual circumstances must be considered.

3. “Significantly” does not establish a quantitative threshold or require “more harm plus”. It is used qualitatively. An applicant is vulnerable where, because of a characteristic within section 189(1)(c), the applicant would suffer or risk harm or detriment that an ordinary person would not, and that difference would make a noticeable difference to the applicant’s ability to deal with homelessness. Application of this standard is an evaluative judgment for the reviewer.

4. Mr Panayiotou’s reviewer applied that test by asking whether his condition exposed him to more risk of harm from lacking accommodation than an ordinary person. She also accepted and considered his account of paternal abuse. Mr Smith’s reviewer, however, accepted that he might be more vulnerable than ordinarily vulnerable while requiring a further degree of significance. That imposed the prohibited quantitative threshold.

5. Haringey could lawfully contract out homelessness reviews. Sections 70 and 72 of the Deregulation and Contracting Out Act 1994 and article 3 of the Local Authorities (Contracting Out of Allocation of Housing and Homelessness Functions) Order 1996 authorised the arrangement. Section 149(2) of the Equality Act 2010 imposed the public sector equality duty directly on the contractor exercising public functions, while the contractor’s acts were treated as those of Haringey. The arrangement therefore created no gap in the duty.

6. The constitutional prohibition on contracting out discretionary decision-making concerned high-level policy or strategic choices, not evaluative applications of the tightly controlled statutory homelessness scheme. The procurement reports showed that Haringey considered equality implications and concluded that none arose.

• Court of Appeal (Civil Division): In [2017] EWCA Civ 1624, dismissed Mr Panayiotou’s appeal, allowed Mr Smith’s appeal on the vulnerability ground, dismissed his remaining grounds, and remitted his case for redetermination.
• County Court at Central London: Recorder Bellamy dismissed Mr Panayiotou’s appeal against Waltham Forest’s review decision. Recorder Lowe QC dismissed Mr Smith’s appeal against Haringey’s review decision. No neutral citations are stated.
• Local authority reviews: Waltham Forest and Haringey each upheld decisions that the respective applicant was not in priority need under section 189(1)(c) of the Housing Act 1996.