Overcrowding and homelessness

Right then, Harouki v Royal Borough of Kensington & Chelsea [2007] EWCA Civ 1000.

The scene in a nutshell. A statutorily overcrowded household, in terms of Part 10 of the Housing Act 1985, s.326, which gives rise to a criminal offence under s.327

A homeless application under s.175 “entitled to occupy” and s.175(3) “reasonable to continue to occupy”. A negative s.184 decision, and review decision and s.204 appeal decision on the basis that it was reasonable for the appellant to continue to occupy the property.

The whole case turns on the Code of Guidance issued by the Secretary of State in respect of Part VII applications. This guidance states:

“8.26. Section 177(2) provides that, in determining whether it is reasonable for a person to continue to occupy accommodation, housing authorities may have regard to the general housing circumstances prevailing in the housing authority’s district.

8.27. This would apply, for example, where it was suggested that an applicant was homeless because of poor physical conditions in his or her current home. In such cases it would be open to the authority to consider whether the condition of the property was so bad in comparison with other accommodation in the district that it would not be reasonable to expect someone to continue to live there.

8.28. Circumstances where an applicant may be homeless as a result of his or her accommodation being overcrowded should also be considered in relation to general housing circumstances in the district. Statutory overcrowding, within the meaning of Part 10 of the Housing Act 1985, may not by itself be sufficient to determine reasonableness, but it can be a contributory factor if there are other factors which suggest unreasonableness.”

So, faced with statutory overcrowding in a household, does the local authority have to accept that the continued, overcrowded, occupation is unreasonable to occupy on the basis that a continuous criminal offence is committed?

Or, following the Guidance – which does not have statutory force – does the local authority have the right to consider local housing conditions in deciding whether continued occupation is reasonable, via s177(2) HA 1996 and the Guidance?

The Court of Appeal decides that the Guidance does, ‘surprising though it may be’, express the law. At para 20:

There are various ways to test that conclusion. If, as I have indicated, suitability and reasonableness are related concepts, then statutory overcrowding should receive similar treatment whether looking at it for section 175(3) or section 210 purposes. If not, then the ludicrous result is that if statutory overcrowding compels the conclusion that it is not reasonable for the applicant to continue to occupy the accommodation, then there is a duty to find alternative accommodation for her but that accommodation may be suitable even if it is overcrowded. In those circumstances the applicant would be bound to accept overcrowded accommodation and could consequently return to the local housing authority the next day and complain that the property may be suitable for section 210 purposes, but it would not be reasonable under section 175(3) to continue to occupy it. The applicant could once again demand to be rehoused. This could go on forever. That cannot be right. If, therefore, by virtue of the express recognition in section 210 that overcrowding does not necessarily render the accommodation suitable, it must follow if the statute is to be given a coherent and consistent construction that overcrowding does not necessarily prevent it being reasonable for the applicant to continue to occupy the accommodation for section 175(3) purposes.

And therefore, at para 24:

In those circumstances the Housing Review Officer was fully entitled to look at the prevailing circumstances in the borough, including the unfortunate extent of overcrowding in the borough, and, consequently, having properly had regard to the family’s personal circumstances and ill health, he was not acting illegally or irrationally in concluding that it was reasonable to require Mrs Harouki and her family to continue to occupy the flat until it was her turn to be rehoused under Part 6. I see no error of law in his decision. Judge Knight QC was correct in his admirable ex tempore judgment to dismiss her appeal. I must now dismiss this appeal also.

For those of us who have looked to statutory overcrowding as a ‘reasonable to continue to occupy’ issue, this is a serious warning. If local conditions are usually overcrowded, then the Local Authority may well be able to make a negative decision on the basis of HA 1996 s.177(2).

This is not helpful, as, for instance, it means that a local authority in a bad area has a lesser responsibility than one in an area without such a housing problem. If a Local Authority can’t offer a better accommodation than the one that the applicant is occupying in terms of overcrowding, then there is no housing duty seems to be the upshot. Hmm. Not good.

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Posted in FLW case note, Homeless, Housing law - All and tagged , , , , .

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

24 Comments

  1. Glad to see in April’s Legal Action that the claimant has lodged a petition seeking leave to appeal.

    I must admit to being left a little baffled by the Court of Appeal judgment, in so far as it allows an authority to consider it reasonable for an unlawfully overcrowded household to continue to occupy, even though this might involve a criminal offence.

    It just doesn’t seem to make sense to me.

  2. Absolutely Mark. I couldn’t agree with you more.
    Housing Law is hard law, dating back to the dark ages and feudal times. Most of the legislation is complicated, out of date and no longer applicable, but people are still festering in slums and shit housing and/or are evicted from their shitty housing conditions irrespective of disability in times of today on the premise of these laws and Housing Acts. These laws amount to organised oppression in order to reduce a human person’s dignity and quality of life. it is a modern day form of oppression and subjugation, to be compounded to live in crap housing conditions that adversely affect long term health.

    Although this oppression concerning housing is sanctioned by law, it doesn’t mean that compelling people to fester in overcrowded conditions like pigs is right in the same way that genocide and the murder of millions of people in the holocaust during world war two was indeed lawful – does not mean it was right.

  3. Mark P – I noticed that and meant to mention it. This is certainly worth an appeal, I would have thought. I can’t see how the guidance, which does not have statutory force, can possibly be taken to effectively overrule effectively making someone commit a criminal offence. What happened to the Court’s duty not to aid an unlawful act? I am particularly puzzled by the Court’s assertion that temporary accommodation under s.210 would be suitable where it wouldn’t be reasonable to continue to occupy under s.175. Bewildering.

  4. My family are currently overcrowded. we have 4 children and 2 adults living in a 2 bed house . We have been waiting to be rehoused since 2004 but nothing. We pester both the HA and council for our area and get told the same scripted line every time. I dont know if this is the right place to post this and if its not im sorry but i am trying to get advice on what i can do from every person i can. I dont even know why im telling you this , maybe i need to vent some anger :) is there anything i can do ?

    • hi, yes im in two bed house two adults n 4 kids bu we are not priority or urgent and have to wait ages!

  5. Mark, I can’t offer advice on this blog, I’m afraid. I suggest that you contact a housing specialist in your area. Try the link at the top right of this page. Best of luck.

  6. Section 331 of the Housing Act 1985 says that a landlord of a commits a summary offence if he causes or permits the dwelling to be overcrowded and then fails to take reasonable steps to abate the overcrowding following notice by the local authority.

    He could then face a £500 fine plus a further £50 for every day on which the offence continues after the conviction.

    Occupiers who permit overcrowding are similarly liable, unless (in exceptional circumstances) they are authorised to do so by the local authority.

  7. what is the criminal offence committied by a local authority if stat overcrowding occurs within one of their properties although the person/s was originally allocated a property which suited their then housing needs and have since added to their household.

  8. But no offence is committed if the occupier has applied to the local housing authority for suitable alternative accommodation if the overcrowding is caused by children growing up etc.

  9. A local authority should have fair warning that statutory overcrowding might occur as it should know that the gender-children-bedroom ratio will become unlawful once those in question come of age.

    If a tenant wishes to “add to” their household by any other means then the LA should have its wits about it in not authorising any occupants that might render its let unlawful.

    It would be a crass situation indeed if the law allowed a single tenant of a studio to invite his best mates to live along with him and to then have the legal redress to demand of his social landlord:-

    “six-bed gaff please. Er, today if you don’t mind!”

  10. Michael, you have a gloriously optimistic and utterly wrong view of local authorities. For example, this case, which is a family household. Rather than avoid a statutory overcrowding offence by rehousing, the LA took this to the Court of Appeal to deny any duty to rehouse. No problem with fair warning or anything, the LA just didn’t want to accept the duty (and unfortunately won in the Court of Appeal).

  11. According to Court of Appeal my view is anything but wrong.

    But back to the real world (so often overlooked by lawyers).

    This case involved a 3 bed property in the Royal Borough. The tenant has five “children”, three of whom are 17, 18 and 20 years old. Old enough to fly the nest, or at least joing the back of the housing queue.

    But no, the tenant instead wanted a much larger housing benefit funded central-London property. Overlooking Holland Park or Kensington Palace Gardens. But not near that Madonna, coz I don’t like all the paps snapping me when I go to signn on.

    The court considered the circumstances in the borough, including the the levels of overcrowding and concluded that this is the best the family could hope for.

    An unfortunate, shameful decision. Surely the court should have ruled a compulsory purchase of Michael Winner’s pad!

  12. @Michael: A shameless change of tack here. It is clear enough though. Rather than actually admit that the Judgment means exactly that the LA can (and will) leave people in statutorily overcrowded homes and thereby commit a criminal offence (which even the Court said was a surprising result), you’d prefer to attack the tenants. By the way, the Court of Appeal didn’t consider the circumstances in the Borough, nor did they decide that ‘this was the best the family could hope for’. In fact they didn’t say it was OK for an LA to do this, it said that they could, legally.

  13. I’m wracking my tiny mind and I cannot conceive of any possible alternative action the LA could have taken as, even though I have no specific knowledge of the Royal Borough’s available housing stock, it is difficult to imagine they have a vacant six-bed houses up for allocation.

    I genuinely am NOT being facetious when I ask, what should the council have done?

    As for the attack on the tenants, you’re right, it was inapproriate.

    If it ever seems like I’m doing that, then that is because I’m using the legal reporting technique which always says “Mrs Harouki then made an appeal…” etc when we all know full well that it’s the legal advisiors who make all the moves.

  14. @Michael: But that is not the point. It is not necessity that entitles an LA to act unlawfully. Neccesity is an issue for LAs to take up with central Government (and now would be a good time to do it, I would have thought, even in Kensington). In this instance, the Court of Appeal decided that the Guidance meant that the LA was acting lawfully in its breach of the law. But the logic of your argument would mean that an LA could plead lack of available accommodation in breach of its Part VII duties tout court. It can’t.

    If an LA has problems meeting its legal duties that is a matter for it and central Government. The LA has no right to take it out on its tenants or those to whom it owes a duty, as being the soft option for it.

    But otherwise you are right, tenants’ legal advisors are two headed, bile spewing monsters.

  15. That crackpot David Icke says they’re lizards but I work among them and I can confirm that your description is much more accurate.

    Wonder if you’re coming to my firm?

    They all take the academic view of things too so you’ll be right at home. Ignore realistic expectations, ignore social responsibility and keeps the case open as long as you can. Only accept the long-term workless, so you know they’re gonna get paid from the public pot, win or lose.

    Another little tip: make sure you don’t answer the simple questions when the crafty legal points are there for the milking – someone asks you how you allocate a six bed property in High St Ken when no such property exists, play a glass bead game. And above all lord it up. Patronise. See yourself as a missionary among the mud huts.

    These tenants… they’re more or less like children, aren’t they…?

  16. @Michael: I am of the righteous, but of the righteous with an eye to a practical resolution – unless I am being played, as happened today, when litigator kicks in. Academic only gets a look in where there is a chance of playing a new argument in the client’s interest. That seems to be the point you are missing here – the client’s interest. It might fit ‘practical expectations’ to say ‘whatever, you’ll have to put up with it’, but if a ‘crafty legal point’ turns out to mean that the LA or landlord is actually, legally wrong, then why on earth is it wrong to take the point, given that our duty is to act in the client’s interest? If that is socially irresponsible, you will need to explain how.

    I wonder about your firm, to be sure – and trust me I’m not heading there, or you would know about it – but more than that, I wonder what you are doing there. Particularly if you think that is the attitude to clients that is the problem (and also particularly given your apparent attitude to clients).

    Sure, I’ll bitch about some clients and their unrealistic expectations slash demands. But there is a difference between advising and assisting people who have no knowledge of the law (and why should they?) and ‘treating them like children’. Depending on whether you can see the difference or not, another career or a job with with another firm beckons, I’d say.

  17. NL, I admire your approach. I always tried to keep that balance myself and most social housing lawyers were quite amenable to a practical resolution. This was not always the case with housing officers.

    I’ll come clean.

    It’s over two years since I worked in the 10-srong housing law team at my firm. We had no social landlords clients and only a very few private ones. As an ex-council tenant and current housing association tenant, I just couldn’t stomach the red-carpet treatment rolled-out for nuisance neighbours and benefit cheats who blight the lives of the majority of hardworking, decent tenants.

    We rarely met any of the latter kind, why would we?

    During my time in that team, we sucessfully ensured the continuing occupancy of a family of thugs on a Newham housing estate. The council’s case had holes in it and we dutifully exposed them. I didn’t think it was very socially responsible.

    The lead lawyer on the case didn’t much care as she lives in a plush part of Essex. I’m not blaming him, maybe I wouldn’t give a damn either if I was in her shoes (though they might be a bit tight).

    That was proof enough that I wasn’t cut out for it so I begged for a transfer.

    At least we can agree that I did do the right thing.

    I’m now paralegal / PA to the one-man property and probate team but, as the work is nowhere near as interesting as housing law, (and since I have an personal interest) I keep a close eye on developments.

    As for housing lawyers, I don’t really think they’re monsters (that WAS facetious of me!). They are (at least the newly qualifieds) largely well-meaning Young Turks who genuinely want to do good for the poor devils who can barely feed themselves.

    After a couple of years, cynicism creeps in and they usually either carry on because of mortgage responsibilities or get out of Dodge, maybe working for the other side or some other law area.

    I hope you’re lucky enough to work at a firm with both landlord and tenant clients, as the one lawyer I met who does is able to stay sane and righteous long-term.

  18. You shouldn’t still be referring to the Housing Act 1985, as this has been replaced by the Housing Act 2004 which came into force on 6th April 2006. The new Act has a number of important changes including the redefinition of a House in Multiple Occupation (HMO) and mandatory licensing for larger HMO’s. Under the new Act there are 29 separate hazards that will be assessed (the Housing Health and Safety Rating System). Examples of these hazards are dampness and mould growth, falls associated with stairs, excess cold, crowding and fire. There is no longer a specific, numeric, standard for the number of people who may live, or sleep, in a dwelling or individual room. Crowding is now one of the hazards that can be assessed under the rating system and we will take into account any other hazards that exist in the dwelling and whether, or not, those hazards are made worse by the number of people living in the dwelling. For example, if you only have one bathroom, or a small kitchen, hazards may arise if too many people have to share those facilities.

  19. Umm, Jason, the Housing Act 2004 didn’t replace HA 1985, it amended some sections of HA 1985. It came into force in stages in 2005-6.

    If you can point me to the sections of HA 2004 that amend or repeal s.326, s.327 and s.331 of HA 1985, I’d be very interested to see them, because I don’t think that they exist.

    Would I be right in guessing that you work for a local authority?

  20. @NL I think Jason’s confusion may be that the HA 2004 did introduce additional control provisions concerning overcrowding (in Chapter 3 of Part 4) but did not (or course) repeal what we have already in HA 1985.

    I can recommend a good book for housing managers about the HA 2004 if you like 8-).

  21. “For those of us who have looked to statutory overcrowding as a ‘reasonable to continue to occupy’ issue, this is a serious warning. If local conditions are usually overcrowded, then the Local Authority may well be able to make a negative decision on the basis of HA 1996 s.177(2).”

    Hmm

    Was looking today at overcrowding issue and the excellent overview the House of Commons paper did on this back in 2011. It says: –
    “Official statistics on the number of households that are statutorily overcrowded have not been collected year on year as a matter of course. A one-off estimate made in 2003 concluded that there were around 20,000 statutorily overcrowded households in England.”

    The 2009 English Housing Survey is cited as saying “The overall rate of overcrowding in England for 2008-09 was 3.0%.”

    It also says overcrowding rates are not routinely collated and collected yet does says National Housing Federation in 2009 predicted a surge in overcrowding due to the recession. Strange then that NHF have not looked at this again in light of the bedroom tax and how that will increase overcrowding and leave HAs (and ALMOs?) liable to prosecution by councils for overcvrowding.

    Specifically, and directly related to the above, in the absence of any official figures on overcrowding in any local authority area then how can a HO make a judgement that the local area is typically overcrowded?

  22. Joeh – Harouki is dead in the water . It is impossible to escape the conclusion that it was effectively overruled by the House of Lords in Birmingham CC-v- Ali and Moran -v-Manchester CC .

    It was always an absurd decision – when would it cease to be reasonable to continue to occupy – when you were prosecuted rather than when you were committing a crime.

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