Rowe v London Borough of Haringey (2022) EWCA Civ 1370

A Court of Appeal decision which has broader significance for considering overcrowding and whether it is reasonable for a homeless applicant to remain in accommodation in an HMO with shared facilities. It also flags some arguments for the future by failing to decide what overcrowding standards should be applied to HMOs.

Ms R had applied to Haringey as homeless. She and her two sons (both under 10 years old) were living in a room in an HMO, with shared kitchen and bathroom facilities. She applied on the basis of overcrowding making it not reasonable to remain in the accommodation.

Haringey’s decision was that Ms R was not statutorily overcrowded under the requirements of Part X Housing Act 1985 and it was reasonable for her to remain.

At the first appeal, the Circuit Judge had held that

i) By reason of section 3 of the Housing Act 1988, the Appellant’s Accommodation was deemed to be a dwelling-house let on an assured tenancy. That answered the question of what constituted a dwelling for the purposes of s. 325 HA 85: the Judge held that it would be illogical for the Appellant’s tenancy to be a dwelling house for the purposes of HA 88 but not for the purposes of HA 85. He therefore held that the word “dwelling” in section 325 referred to and meant the Appellant’s Accommodation.

ii) The reviewing officer had considered separately from the room standard and the space standard whether the Appellant was overcrowded, citing paragraphs 12 and 13 of the review decision, to which I have referred above;

iii) He rejected the submission that the Respondent owed any duty to make enquiries about whether the House was an HMO as defined or, if it was, whether or not it was licensed.

Ms R’s grounds for second appeal were that:

The Judge was wrong in concluding that the Appellant’s bedroom, rather than the whole house in multiple occupation in which her bedroom is situated, was the relevant “dwelling” for the purposes of the “room standard” and “space standard” of overcrowding contained in ss. 325-326 HA 85.

That Haringey had not otherwise properly considered the question of overcrowding; and

That the Judge was wrong in concluding that the respects in which the Property was not “suitable” were not relevant considerations in assessing whether it was “reasonable to continue to occupy.”

The review decision had been withdrawn by Haringey in the interim, because it had failed to inquire whether the property was licensed. However, the Court of Appeal did not accept that this made the appeal academic as the issue of whether overcrowding should be assessed on the basis of the tenancy of the room, or of the occupants of the property as a whole remained live for any reassessment.

On the distinction between ‘reasonable to remain’ under s.173 Housing Act 1996, and ‘suitability’ under s.210 (and subsequent Orders), the Court of Appeal found

This statutory distinction between the questions to be asked when assessing homelessness under s. 175(3) and the questions to be asked when considering the discharge of the authority’s housing functions is clear, deliberate and coherent. It may also be noted that Part VII of HA 96 contains no provision equivalent to section 210(1) (which relates expressly and only to the assessment of suitability) relating to the assessment of the reasonableness of continued occupation of existing accommodation. Generally, the statutory provisions regulating the question of suitability are more extensive and prescriptive than those regulating the question of reasonableness, and not all of the features that are prescribed in relation to suitability have obvious relevance to the question of reasonable continued occupation.

So, s.210 and Article 3 of The Homelessness (Suitability of Accommodation) (England) Order 2012 could not simply be read across into assessing reasonableness of occupation. Temur v Hackney LBC [2014] EWCA Civ 877 applied. However, that did not mean there was not an overlap.

However, depending on the facts of the case, factors that may be relevant to the prior assessment of reasonableness may also be relevant to the later question of suitability and vice versa. It is more accurate to express the overlap in this way rather than to say that the concepts of reasonableness and suitability themselves overlap.

There is then a rather odd excursus on the applicable overcrowding standards. It appears that at the oral hearing, the parties had proceeded on the basis that Part X Housing Act 1985 applied. However, in subsequent written submissions invited by the Court on Housing Act 2004, Haringey changed position to argue that Part X did not apply at all, and the relevant measure was that in Part 2 Housing Act 2004.

The Court of Appeal declined to decide this point.

This state of affairs is problematic for two reasons. First, although we have received detailed written submissions of considerable diligence and complexity since the hearing on the applicability of the two strands of authority, we have not heard oral argument. Speaking for myself, I would be intensely reluctant to decide a point of such potential significance without full and focused oral argument to clarify the issues that seem to me to arise from the written submissions. Second, the logical consequence of the Respondent’s present submission that the regimes are mutually exclusive is that the appeal and the Respondent’s original and review decisions have proceeded on a false basis because they proceeded on the basis that sections 325 and 326 of HA 85 were relevant and applicable, the dispute being about whether they should be applied by reference to the Appellant’s Accommodation alone or to the House as a whole. If it was to be the Respondent’s case that sections 325 and 326 were not applicable, it should have been taken clearly from the outset so that it could be addressed thoroughly and fully at the hearing. Instead, the Respondent initially relied upon the provisions of HA 85, the subsequent challenge simply being about the interpretation of those provisions. It is small comfort for the Court to receive the Respondent’s submission (correct though it appears to be) that the Appellant’s Accommodation would not have been overcrowded if assessed by reference to the HA 04 regime rather than by reference to the HA 85 regime.

So, proceeding on the basis that Part X applied, the issue was whether the assessment was by room or the whole property.

The Court of Appeal held that property was not a ‘separate dwelling’ for the purposes of s.325 and s.326 HA 1985. The term did not fit to describe the property as a whole.

The question turns on whether the house is a “dwelling” as defined in section 343 HA 85. That section defines “dwelling” as “premises used or suitable for use as a separate dwelling”. It was accepted by Mr Toby Vanhegan for the Appellant that the house was not “used … as a separate dwelling”. He was clearly right about that: premises are only used as a separate dwelling if they are used for a single household. There is a very long history to the concept of a “separate dwelling”, familiar to all those who had to deal with the Rent Acts: see the account given by Lord Millett in Uratemp at [32ff] which traces the phrase “let as a separate dwelling” back to the first of the Rent Acts, the Increase of Rent and Mortgage Interest (War Restrictions) Act 1915, and the concept of a “separate dwelling” much further back to the reforms of the parliamentary franchise in 1832 and 1867.

It is not necessary to go over the history. The upshot of the long series of cases is that if premises are let to an occupier on terms that living accommodation is shared with others not in the same household, the occupier does not have a separate dwelling. For these purposes a kitchen is (generally) part of the living accommodation in a house so if, like the Appellant, the occupier of a bedroom has shared use of the kitchen, she does not have a separate dwelling. More significantly for present purposes, no one household occupies the house in which the Appellant lives as a whole. It is a house occupied by several different households. This is the very antithesis to a house let as a separate dwelling.

That said, the Court of Appeal was not wholly convinced that the Part X standards applied to Ms R’s room as a dwelling either

Having reached this conclusion it is not necessary to consider whether Part X HA 85 applies to the Appellant’s room taken by itself. I am rather doubtful about it, but even if it does, there was no breach of Part X. Her room, taken by itself, was not statutorily overcrowded as neither the room standard nor the space standard was contravened. Indeed she never complained that her bedroom was too small.

But it was not necessary to decide this for the disposal of the appeal, which rested solely on whether the overcrowding assessment should have been of the whole property.

On the second ground of appeal – a general assessment of overcrowding –  this was predicated on the first ground. Haringey had now accepted that the licensing of the property should have been accepted, but in any event, apart from that the parameters of the Council’s investigations will be set by the representations made by the applicant, “questions that flow naturally and reasonably from those representations, and other factors that no reasonable authority would fail to investigate.”

Ms R had not raised the question of overcrowding except tenuously and those had been addressed by the Council.

Appeal dismissed.

Comment

It is, to say the least, not ideal for the Court of Appeal to invite further submissions on an issue that it has identified for itself – not part of submissions – and then to decline to decide the point while leaving it very clearly open.

So, the live issue is whether, for HMOs, the appropriate approach to overcrowding is Part X Housing Act 1985, or Part 2 Housing Act 2004. While not deciding, the Court seemed quite taken with the view that Part X only applied to separate dwellings, without shared facilities, and Housing Act 2004 to HMOs or properties with separate rooms but shared areas.

This also leaves a considerable uncertainty as to whether Part X standards apply where the tenancy is of a single room, with shared facilities even for the criminal offences of overcrowding.

There may need to be another case on the issue quickly, because this obviously has a broader impact than homelessness and reasonableness to remain.