Zenith Housing Current Awareness


14 November 2017

Helen Greatorex

Those people deemed to be in priority need for the purpose of any homelessness application are defined at section 189(1) of the Housing Act 1996. The most general of the relevant categories is found at section 189(1)(c) which defines those in priority need as including “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 determination of vulnerability has for almost the last twenty years been made by reference to the judgment of Hobhouse LJ in R v. Camden LBC ex p Pereira (1999) 31 HLR 317 (Pereira). This well established test was recently revisited by the Supreme Court in Hotak v. Southwark LBC [2015] UKSC 30 (Hotak).

In his judgment in Hotak Lord Neuberger corrected / refined the Pereira test by: 1. Determining in accordance with Pereira, that the test was a comparative one but indicating that the comparator was not “an ordinary homeless person” as set out in Pereira, but an ordinary person if made homeless, rather than an ordinary person who is actually homeless or an ordinary person who is in need of accommodation. 2. Stating that the expression “fend for [oneself]” should no longer be used, since people who are vulnerable can sometimes fend for themselves.

At paragraph 53 of his judgment Lord Neuberger stated: “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.”

The issue of general application which was common to both appeals in this case was what is the meaning of "significantly" in this context?

In both cases the appellants had been found not to be in priority need. In both cases detailed consideration was given to the factors relied upon to seek to establish their vulnerability and extensive consideration given to the relevant case law and appropriate test.

In the case of Mr Panayiotou, the reviewer had 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.”

In the case of Mr Smith, the reviewer had concluded: “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.”

After expressing a little reluctance to do so, but noting that the appeals had been brought to enable the Court of Appeal to give such guidance as it could, Lewison LJ as he put it did "attempt [any] further exegesis of what Lord Neuberger meant". In doing so, however, he cautioned that "(a) we will replace one imprecise formulation of the test with another and (b) whatever the correct formulation is, its application to a particular set of facts will be a matter of evaluative judgment for the reviewer."

His conclusion at paragraph 64 can be summarised as:

1. The use of the word "significantly" does not introduce for the first time a quantitative threshold, rather it is used in a qualitative sense.

2. 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.

3. An applicant would be vulnerable if he were at risk of more harm in a significant way.

Applying that view to the two cases the subject of this appeal the court dismissed the appeal in Mr Panayiotou's case considering that the reviewing officer had "plainly applied the correct test" and noting that "There is no trace of any quantitative threshold being applied". The appeal in Mr Smith's case was however allowed Lewison LJ stating that having concluded that Mr Smith might well be “more vulnerable than ordinarily vulnerable” the reviewing officer had performed the comparative exercise required by Hotak and he ought therefore to have concluded that Mr Smith had priority need.

Current Awareness

By the Housing team