Flores, R (on the application of) v London Borough of Southwark (2020) EWHC 1279 (Admin)
This was a judicial review of Southwark’s allocation decision on the priority to be given to a family in accommodation which had become statutorily overcrowded. The brief facts:
In November 2013, the Claimant came to the UK in order to look for work having lost his job in a factory making belts near Barcelona earlier that year. He found accommodation in the Defendant’s borough and work as a kitchen assistant in a restaurant. Ms Velasquez and the children arrived in the UK in June 2014 and they initially rented a room at 225 Gordon Road, London SE15 from 21 June 2014 to 27 July 2014. Then on 27 July 2014 they moved to their present accommodation at 86 Meeting House Lane, London SE15 which is a one-bedroom property. In his witness statement, the Claimant says that he was unable to afford a two-bedroomed property and the rent at 86 Meeting House Lane was £1,000 per month which included the bills. For the purposes of the Defendant’s housing allocation scheme, the accommodation would have been considered to be overcrowded at the time they moved in but not for the purposes of the Housing Act 1985. However, on 19 February 2016 when the older child, Ronaldo, attained the age of 10 the accommodation became statutorily overcrowded for the purposes of s.326 of the Housing Act 1985. There is no evidence or suggestion that the Claimant moved his family into one-bedroomed accommodation deliberately in order to qualify within the overcrowding criteria of the Defendant but rather because that was all he could afford.
Mr F applied to Southwark’s housing list in March 2019, with the help of Housing Action Southwark & Lambeth. The family was initially placed on band 4 (the lowest, with no realistic opportunity to be allocated housing) on the basis of insufficient local connection. That decision letter noted on overcrowding that there was statutory overcrowding, but:
“At the outset you were overcrowded in your accommodation, lacking one bedroom. It cannot be therefore be said that your current overcrowding has come about as a result of natural increase. As a result your household does not qualify for band 1 priority or the associated priority star …”
A couple of months later, the 5 years local connection criteria was met and a review of banding requested, with Mr F stating (though his volunteer helper), that he should be given band 3 through overcrowding.
On 11 October 2019 the Defendant made its decision which is the subject matter of this application. By that letter the Defendant confirmed that the Claimant met the local connection criteria and had done as from 27 July 2019. The letter considered that the Claimant could be assessed in priority band 3 for overcrowding. The letter acknowledged that as a result of both children now being aged 10 years or over, the family would be considered to be statutorily overcrowded, the family comprising four units whilst the maximum capacity for one-bedroomed property with two rooms is three units, but stated:
“However as natural increase has not occurred, whereby you had moved into overcrowded accommodation at the outset, you do not meet the criteria to be awarded statutory overcrowded priority on the council’s home search bidding scheme, nor do you meet the criteria to be awarded any associated priority star, in accordance with the allocations’ policy … having considered all of the information above in accordance with our current allocations’ scheme I confirm that your application has now been reassessed into priority band 3 for overcrowding. You are able to bid for two-bedroomed properties on account of your household composition. Please note that this decision is final and not open to further review.”
The decision maker explained this in a statement as
“The main point in my view was to consider how the overcrowding had come about and later become statutory overcrowding. The overcrowding had started from when the Claimant initially moved his family of four into the current one-bedroomed flat. There was nothing to indicate that this was anything other than a voluntary act. The Claimant never suggested otherwise and I considered it to have been a deliberate act.”
Southwark’s policy includes in Band 1 – the highest priority:
“Applicants who are statutorily overcrowded as defined by Part X of the Housing Act 1985 and have not caused this statutory overcrowding by a deliberate act.”
In a pre action protocol letter, Mr F argued that
“In the Claimant’s case the statutory overcrowding was caused when his oldest son turned 10 years old. Their statutory overcrowding cannot, therefore, be said to have been caused by a deliberate act. However the Defendant fails to apply this test and instead applies an unwritten test for overcrowding (and not statutory overcrowding).”
The letter criticises Southwark for applying a test to determine eligibility for band 1 which is whether the overcrowding was caused “as a result of natural increase, this not being a criterion contained within the housing allocations policy for band 1.
In response, Southwark said:
“It was not reasonable for your client to move into a one-bedroomed property and then put in a request to be placed in band 1 on the ground that the family are statutorily overcrowded. The fact that his older son turned 10 is not a ‘natural increase’. Everyone gets older every year. If your client had had another child after he moved into the property, that would have constituted a ‘natural increase’. It is a fact that Southwark’s allocation policy permits applicants to bid for properties smaller than their bed need. The ‘natural increase’ clause in the allocations policy would also be applied to those who do so. They cannot request band 1 on the ground that they are statutorily overcrowded because they made a voluntary choice to move into a property smaller than their bed need. … if applicants are allowed to jump the queue by claiming an eligibility for band 1 on the basis of statutory overcrowding which has been caused by their moving into properties which were clearly unsuitable right from the start of the tenancies, that is manifestly unfair to other applicants on the waiting list. … he had a choice to secure suitable accommodation for the size of his family …”
On the judicial review, Mr F argued that Southwark had not done any investigation into whether being statutorily overcrowded was a ‘deliberate act’ by Mr F, and in particular had not considered:
(i) Whether they were able to afford larger accommodation, for example two-bedroom accommodation.
(ii) Whether or not they were aware of the Council’s allocations scheme.
(iii) Whether or not larger accommodation was affordable to them in the context where the Cl was in fact working and therefore would not want to lose his employment.
(iv) The extent of any advice they received at the time.
(v) Their needs in terms of locality to maintain employment and or family support. Other options open to them at the time.
(vi) Whether or not there was an intention to queue jump in the way alleged.
(vii) Consideration of the local housing allowance in the area and the question of whether or not someone on a low income could ever afford a two-bedroom property.
(viii) Consideration as to whether persons in like circumstances to the Claimant would ever be put in such accommodation by the local authority when applying as homeless. It is often the case that families are put into accommodation that will within a short time span result in statutory overcrowding, due to the shortage of larger affordable accommodation.
Further, the distinction between ‘natural increase’ by having a new child, and ‘non-natural increase’ by a child reaching a certain age and requiring a bedrom of their own was illogical and arbitrary
Southwark argued the deliberate act was moving into a fkat that was overcrowded (albeit not statutorily overcrowded) from the start, and denied any comparison with the ‘deliberate act’ definition for intentional homelessness under s.191 Housing Act 1996.
The Admin court decided:
It seems to me that the fundamental premise for this application by the Claimant is that, where the Defendant’s policy refers to “a deliberate act” on the part of the Claimant, this is intended to apply to an act which is culpable in the sense that it is deliberately intended to promote the interests of the applicant in relation to the borough’s housing allocations policy. In my judgment, this is incorrect and an unnecessary gloss on the wording of the Scheme. In my judgment, the Defendant intended, and properly intended, to mean that the act was deliberate in the sense that the Claimant voluntarily, in this case, entered into the tenancy in question. Suppose the Claimant, informed that, under the Statute, there is statutory overcrowding once Ronaldo attains the age of 10, had been asked: “do you appreciate that, by taking this tenancy and not moving, it is inevitable that, barring some tragic accident, there will be statutory overcrowding as a result of your taking this tenancy?” he would inevitably have had to have answered: “yes, of course”. Whether the Claimant was aware of the terms of the statute or of the Defendant’s Scheme cannot, in my judgment, make any difference. Here, the applicant entered into a tenancy for a one-bedroomed flat in the knowledge that he would be occupying the flat with his partner and their two children, four people thus occupying a one-bedroomed property. In my judgment that is sufficient for the Defendant to conclude that this was a deliberate act within the meaning of its policy whereby the Claimant does not come within band 1.
In my judgment Ms Tait, considering the circumstances of this case, adopted a sensible and lawful approach in finding that a family of four which moves into a one-bedroomed flat where statutory overcrowding will become inevitable when the children grow older is fairly to be contrasted with a family which moves into accommodation which is appropriate for the number of family members at the time, but where the accommodation then becomes overcrowded because the family increases in size. She was entitled to consider whether it was fair on the other families on the waiting list that this family should be able to “jump the queue” where the accommodation was effectively unsuitable from the start. There is sufficient uncertainty as to whether additional children will be born for the Defendant reasonably to contrast and distinguish that situation with the inevitability that existing children will grow older.
I suspect this may well go to appeal. Whether moving into a flat which would be overcrowded (though not statutorily overcrowded at that point) because it is what you can afford can be classed as ‘a deliberate act’ as if there was a degree of choice in the matter is a question that needs more attention than it appears to get here.
Similarly, whether a tenant should be expected to ‘choose’ a property based on their child reaching an age to count for Part X Housing Act 1985 space allocation and them being unable to move to a larger property in time or at all because of their unknown future circumstances also merits examination.