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05/06/2022

A deliberate act needs options to choose between.

Milton Laines Roman (R OAO) v London Borough of Southwark (2022) EWHC 1232 (Admin)

This was a judicial review of LB Southwark’s refusal to place the claimant in Band 1 of its Allocation Scheme, on the basis that the claimant’s current overcrowding in a private tenancy was a ‘deliberate act’. It is something of a sequel to Flores in 2020 (our note here), raising further issues with LB Southwark’s policy on overcrowding priority and ‘deliberate acts’.

Mr R and his family are Spanish citizens, originally from Ecuador. In 2016, he came to London, where his sister lived, from Ecuador, where the family were unemployed during a financial crisis and with no welfare support, to find employment. He worked as a cleaner, and found accommodation in a room in a flat, with shared facilities. 6 months later his wife and three children joined him, living in the same room. Mrs R also began work as a cleaner. The family were evicted from that room in late 2016. They were unable to find a two bedroom flat in Lambeth and Southwark that they could afford (rents started at £1600 pm),  and were unaware of any housing duties or assistance the Council might owe. Eventually, through the assistance of their church, a one room flat in Southwark was found that they could afford and with one month deposit and rent in advance only.

Mr and Mrs R both continued to work in the Southwark area, and their children were in local schools and a local university.

In 2018, with the support of Housing Action Southwark and Lambeth (HASL), Mr R applied to join Southwark’s housing register. Between then and 2021, Southwark made a number of decisions and revisions on the application (there were initially complications due to some errors in the application, which had to be made online and which Mr R required translation and assistance to make, and an argument over local connection). Southwark initially awarded Band 4 priority (the lowest), then Band 3, then eventually Band 3 with a priority star. But what was consistently refused was Band 1 priority for statutory overcrowding, despite Southwark acknowledging that the family were indeed statutorily overcrowded.

Southwark’s allocation policy provides for Band 1 – the highest priority – for”

“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.”

The consistent response from Southwark was that the overcrowding was the result of Mr R’s deliberate act. This was put in a variety of ways. From a 2021 decision, which was the one under challenge, Southwark’s officer variously stated:

It was Mr R’s choice to leave a 2 bed flat in Ecuador and come to London.

It was Mr R’s choice to bring his family to join him in 2016 despite not having suitable accommodation. He didn’t have to have them join him.

They could have made a homeless application to get assistance in obtaining private accommodation.

They could have found a two bed flat at LHA rates, which would have been overcrowded, but not statutorily so.

They should have looked outside the area, at more distant parts of London.

They hadn’t made efforts to find alternative accommodation since.

In the judicial review, on the ‘deliberate act’ issue:

The Claimant submitted that the correct interpretation of the “deliberate act” provision in section 6.2 of the Scheme was that an act was only deliberate if a person intended to do it, in the sense that they had a real choice between two or more viable options and voluntarily elected to do the act. On the facts of this case, the Claimant had no real choice but to move into the overcrowded accommodation in East Street, because he was unable to find alternative more suitable accommodation.

The Council submitted that the correct interpretation was that the act was done deliberately if the person intended to do it. It has the opposite meaning to accidental, unintentional or involuntary. It is not part of the definition that it should be done with unfettered freedom of choice, or with full understanding of the potential alternatives or consequences.

The Admin Court considered that while Flores had not decided this point, it did lend some support to Mr R’s position. Moreover Southwark’s position could indeed lead to a perverse consequence

since applicants who can only afford statutorily overcrowded accommodation, but wish to avoid being penalised under the Scheme, may have to apply for accommodation as homeless persons under Part VII HA 1996 instead, which will place a greater burden on the Council’s limited resources.

Al-Ameri (FC) v Royal Borough of Kensington and Chelsea (2004) UKHL 4 also offered some support for Mr R, in Lord Bingham’s view that a choice between destitution and another option was not a choice at all. Likewise the case law on intentional homelessness supported the argument that where an act is forced on a person, it could not be an intentional choice.

I conclude that the correct interpretation of the “deliberate act” provision in section 6.2 of the Scheme is that an act is only deliberate if the applicant intended to do it, in the sense that they had a real choice between two or more viable options and voluntarily elected to do the act.

The claim succeeded on this ground.

But further, the 2021 decision was irrational in parts

It was irrational to include the decision to leave Ecuador. This was not a proximate cause of overcrowding.

It was irrational to hold that it was unreasonable of Mr R to have his family join him:

The family had been separated for months, because of their impoverished circumstances, and understandably wanted to be reunited. Although Mr Herd acknowledged that the Claimant and his family had “every right to live together and this is what you all wanted at that time”, I consider that he failed to give effect to their right to family life in his reasoning and his conclusions, treating it as a secondary consideration, rather than accepting that it was a paramount consideration for this family.

It was irrational to consider that Mr R could have found more expansive accommodation in late 2016. He was not receiving universal credit, so LHA rates were beside the point, and Mr R’s evidence was that they had looked without success, and were only able to secure what they did through the intervention of their church. In addition, Mr R’s uncontroverted evidence was that landlords and agents required a years worth of payslips and 5 months rent in advance, which the family didn’t have.

It was irrational to assume that Mr R had deliberately not sought advice from the Council in late 2016.

It was irrational to criticise Mr R for not seeking options in other boroughs further out in London in late 2016:

In my view, he did not fairly take into account the Claimant’s circumstances in November 2016. As the Claimant did not speak English and was making his way in a new country, it was reasonable for the Claimant to look for accommodation near his sister who lives in Southwark, and to benefit from her local contacts and knowledge. The Claimant had to find accommodation in November 2016 at very short notice before he was evicted from the Brixton flat. In the event, he was only able to secure a tenancy with the assistance of the Pastor in the local Church, who by chance knew the Claimant when they were both living in Spain. The Pastor was able to assist the Claimant in finding accommodation through his contacts, with greatly reduced deposit and advance rental payments. The Pastor’s contacts were unsurprisingly in Southwark, as that was where the Church is based. Arguably, the East Street flat was the only viable option for the Claimant at that time, and it was not rational to expect the Claimant to have found suitable accommodation in another borough, further out from the centre of London, in the circumstances in which the Claimant found himself in November 2016.

It was not rational to criticise a subsequent failure to find suitable accommodation after late 2016, as this was not a cause of the statutory overcrowding. It was hard to see how a failure to look for accommodation could be a ‘deliberate act’, but in any event Mr R’s evidence was indeed that they had being looking for alternative accommodation, but as many landlords would not let to people receiving universal credit, and those that might required an unaffordable 5 months rent in advance, they had been unsuccessful.

The council had offered a three bedroom property in Deptford, but had failed to cary out a proper affordability assessment.  However, it was not irrational in itself for Mr R to be expected to look for accommodation in other areas of London within reasonable travelling distance.

The claim succeeded on this ground also.

Two other grounds were unsuccessful. That the council had not published its guidance for decision makers on the relevant part of the allocation policy was not unlawful, as it did not contain anything by the way of extra or different criteria to the scheme. An article 8 and article 14 challenge fell away on the finding on the Council’s interpretation of ‘deliberate act’ being wrong.

Comment

Another helpful decision that acknowledges that ‘choice’ in the private rental market for those on low incomes is increasingly illusional, and that to characterise the virtual inevitability that families will have to ‘choose’ overcrowded and inadequate accommodation as being all that they can afford as a ‘deliberate act’ is nonsensical.

During the period of the claim, Southwark had served a prohibition order on Mr R’s flat and moved the Mr into Band 2 priority as a result. The landlord had served a notice seeking possession. An LGSC ombudsman decision is to issue a decision on Mr R’s complaint which is likely to include a recommendation that Mr R be allocated the next available 3 bed property.

 

 

 

 

 

 

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.

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