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.