Flores, R (on the application of) v London Borough of Southwark (2020) EWCA Civ 1697

The was an appeal to the Court of Appeal from a first instance judicial review (our sceptical report here) of Southwark’s decision that the Flores family being in a statutorily overcrowded flat was a ‘deliberate act’ for the purposes of Southwark’s allocation policy such that the family was not entitled to band 1 (highest) priority on the choice based letting scheme.

The facts (somewhat simplified) were that the Flores family had moved into a one bed flat in Southwark in 2014. Mr F’s evidence was that this was what they could afford on his and his partner’s employment. The rent was £1000 pm. The family consisted of Mr F, his partner and their children at that time aged 8 and 6.

In 2018, Mr F applied to join Southwark’s housing register, which he had not previously known about, but this was refused on the basis that they did not meet the 5 year local connection test, but the application was accepted in May 2019 when the local connection test was met. Southwark accepted that the household was statutorily overcrowded. Normally this would attract band 1 priority under Southwark’s allocation scheme, which included:

“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.”

However, Southwark eventually awarded band 3 priority, on the basis that the Flores overcrowding was a ‘deliberate act’. As the decision maker later put it:

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.”

and

“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.”

Mr F brought a judicial review. That upheld Southwark’s decision:

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.

Mr F appealed. Before the Court of Appeal, Mr F argued that:

it was necessary to consider the appellant’s individual circumstances at the time when the family moved into the accommodation which eventually became statutorily overcrowded, and that in the context of the Scheme “a deliberate act” required some planned or intentional act which created the overcrowding. Here the overcrowding was caused, not by moving into the accommodation in the first place, but by the natural event of the children growing older. He supported this submission by reference to the paragraphs of the Scheme dealing with “deliberately worsening housing circumstances”, submitting that this indicates that “deliberately” is directed at conduct which is in some way culpable. It was wrong in those circumstances to treat ordinary family growth as the result of a deliberate act, and in particular to distinguish between such family growth and the addition of another child to the family. He pointed out that it was anomalous to place the appellant in Band 3 which was for those (unlike the appellant) who are “not statutorily overcrowded” and submitted that it was unfair to regard the appellant as seeking to jump the queue.

The Court of Appeal broadly agreed. “Deliberate” did not imply culpability, it was simply an act which one intended to do. However, the wording of Southwark’s scheme simply required the decision make to identify if there was statutory overcrowding, and if so, whether the cause of the statutory overcrowding was a deliberate act by the applicant.

Looking at the applicant’s choices some 5 years earlier in moving into the flat, when the household was not statutorily overcrowded was wholly artificial.

In my judgment it is artificial on the undisputed facts to regard the cause of the overcrowding as the appellant’s decision, some five years before his application to the council to be placed on the housing register, to take a tenancy of his existing accommodation. At that time he obtained for himself and his family the best accommodation which he could afford. He did not take it with any thought of improving his position on the register, a possibility of which at the time he had no knowledge. As Ms Tait expressly and rightly accepted in the decision letter, this was accommodation which it was reasonable for him to occupy with his family. One might ask, what else was he to do? As he could not have afforded any more spacious accommodation, either in Southwark or in any other central London borough, the only “choice” available to him was to continue living in the one room in Gordon Road or to leave his job and move his family elsewhere, to seek other employment and accommodation, either within the United Kingdom or abroad.

The accommodation which the appellant reasonably decided to take only became statutorily overcrowded as a result of his children growing, as they inevitably would. That, in my judgment, was the cause of the overcrowding in this case. It cannot on any sensible understanding of paragraph 6.2 of the Scheme be regarded as a deliberate act on the part of the appellant. With respect, for the council to have decided otherwise exceeds the bounds of any flexibility which may be accorded to it in the implementation of its Scheme.

The Court of Appeal added some observations

The supposed distinction between overcrowding as a result of having more children and children growing older was misconceived. It wasn’t in the scheme. In any event, birth or adoption were much more likely to be a ‘deliberate act’.

It was not ‘jumping the queue’, as some might see it. It was the reasonable operation of Southwark’s allocation scheme which was designed to determine priority in a practical and commonsense way.

And Southwark should probably give the family the priority star, but that hadn’t been part of the claim.

Comment

We felt this was a bad decision at the time, and it is good to see a practical and commonsense approach by the Court of Appeal in overturning it. It recognises the reality of overcrowding and difficult renting conditions for the low paid in London, and the lack of other options, and dispatches the dubious idea that allowing your children to reach 10 years old was a ‘deliberate act’.

We should also note the support the family has had from Housing Action Southwark and Lambeth, both in their original application and through this claim.