High Court finds moving into statutorily overcrowded housing is not a “deliberate act” where Claimant could not afford suitable housing

High Court finds moving into statutorily overcrowded housing is not a “deliberate act” where Claimant could not afford suitable housing and therefore had no real choice.

Background

The case of R (Milton Laines Roman) v London Borough of Southwark [2022] EWHC 1232 (Admin) concerned a challenge brought to the decision of London Borough of Southwark to refuse to place the Claimant in priority Band 1 of its housing allocation scheme on the basis that, while the Claimant and his family were statutorily overcrowded in their accommodation, the Council found that the Claimant had caused this statutory overcrowding by a “deliberate act”.

The Claimant, his wife and two children were Spanish nationals who were originally from Ecuador. They moved to the UK in 2016 after being unable to find work in Ecuador or Spain due to the financial crisis, and found low paid work as cleaners in central London. Shortly after the Claimant and his family arrived in London, they had moved into a one-room studio flat in Southwark in November 2016 after being evicted from their previous accommodation in London when the landlord of that accommodation had discovered that the whole family was living in one room.

There was no dispute between the parties that the Claimant and his family were statutorily overcrowded in the studio flat within the definition of Part X of the Housing Act 1985. However, the Council decided that the statutorily overcrowded had been caused by the Claimant and therefore under the Scheme he could not be placed in the highest priority band.

The relevant provision of the Council’s housing allocation scheme was section 6.2 which sets out the priority bands. Applicants will be placed in the highest priority band in the scheme, Band 1, if they “are statutorily overcrowded as defined by Part X of the Housing Act 1985 and have not caused this statutory overcrowding by a deliberate act” (my emphasis).

High Court Judgment 

The High Court upheld the Claimant’s claim for judicial review on Grounds 1(a) and 1(b), both of which concerned the deliberate act provision in the Council’s scheme.

The judgment dealt first with Ground 1(b), which concerned the proper interpretation of the “deliberate act” provision.

The Claimant argued that the correct interpretation of this phrase was that an act could only be deliberate if a person intended to do it, in the sense that they had a real choice between two or more viable options, and having that real choice, they voluntarily chose to do the act.

In the Claimant’s case, at the time he and his family had been evicted from their previous accommodation, he had been unable to afford housing for his family which was not statutorily overcrowded. Indeed, at the time he was searching for accommodation for his family, nearly all landlords had required him and his wife to provide a years’ worth of payslips as well as up to 5 months’ rent deposit paid in advance, both of which the Claimant had been unable to provide as he and his wife had only just started work. Ultimately, the Claimant had only been able to obtain the studio flat with the assistance of the Pastor at his Church who helped him to find the studio flat and persuaded the landlord to accept only 1 months’ despite and one months’ rent in advance.

The Claimant argued that his act of moving into the studio flat could not therefore be characterised as being “deliberate” and preclude him from the being placed in the highest priority band as he had had no real choice in the matter due to his inability to afford larger housing for his family which would not have been statutorily overcrowded.

By contrast, the Council argued that a narrow interpretation of deliberate was correct, in the sense that an act should be considered deliberate if it was not accidental, unintentional, or involuntary, and that there was no need for the Council to go beyond this to consider whether the Claimant had real freedom of choice in the matter.

The judge found that the Court of Appeal judgment in R (Flores) v Southwark LBC [2020] EWCA Civ 1697 did not resolve the point, a case concerning whether statutory overcrowding which had resulted from the growth of the appellant’s children could be considered to be a “deliberate act”, since it did not address the key issue in this case which was whether a person can be said to have intended to do an act where the act was not voluntary because they had no real choice in the matter [80].

The judge found that case law concerning choice in the context of homelessness legislative provisions, as well as case law concerning a failure to pay rent or mortgage repayments, lent support to the interpretation put forward by the Claimant. In those contexts, the courts had found that where a person has no real choice in the matter their act cannot be regarded as being “deliberate”.

The judge held that the same principles applied to the Council’s housing allocation scheme and that “the correct interpretation of the “deliberate act” provision in section 6.2 of the Scheme is that an act if 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” (my emphasis) [89].

Ground 1(a)

concerned the particular facts of the Claimant’s case and whether it was irrational for the Council to have found that the Claimant’s could have moved into suitable housing at the time he moved into the studio flat. The Council also sought to rely on the Claimant’s decision to move to London in early 2016, as well as his failure to find suitable housing after moving into the studio flat as being a further “deliberate act(s)” which it said caused the Claimant’s statutory overcrowding. The Claimant argued that these findings were irrational.

The judge held that the reasoning in the Council’s decision letter was “demonstrably flawed”. It was irrational for the Council to have found that the Claimant could have chosen to move to more suitable accommodation at the time, as this conclusion being based on the Council’s incorrect assessment of the family’s income. In addition, the fact that many landlords required a years’ worth of payslips to be provided and five months of rent up front were further barriers to the Claimant being able to obtain any more suitable property.

It was also found to be irrational for the Council to have relied on the Claimant’s decision to move to the UK as being a deliberate act since this decision was not the proximate cause of his overcrowding, and irrational to have relied on the Claimant’s failure to look for suitable accommodation after he and his family had moved into the studio flat as being a deliberate act causing the statutory overcrowding. The failure to look for more suitable housing was an omission rather than an act, and further those omissions had not caused the statutory overcrowding, which had been caused by the earlier act of the Claimant moving into the studio flat with his family.

Conclusion

This judgment provides welcome recognition of the difficulties low paid workers, particularly in London, face in obtaining suitable housing. The case also highlights the inherent contradiction in the Council’s scheme which recognises the Band 1 priority need for suitable housing of those living in statutorily overcrowded housing, yet which penalises that same group through its deliberate act provision for moving into such accommodation due to being unable to afford more suitable housing.

Local authorities with similar deliberate act provisions in their housing allocation scheme should now been aware that it is not sufficient to consider whether applicants to their housing register have simply carried out the act which caused their statutorily overcrowding. Instead, local authorities must consider the wider circumstances of each applicant and determine whether due to their lack of financial means they had no real choice other than to move into statutorily overcrowded housing, and if so, the act should not be determined to be “deliberate”, and the applicant should not lose their priority on that basis.

Further, to avoid making irrational decisions about whether a housing applicant has caused their statutory overcrowding, local authorities should concern themselves only with proximate causes of the statutory overcrowding in a particular applicant’s case.

The Claimant was represented by Helen Mowatt and Sam Tippet at Public Interest Law Centre.

Counsel was Jamie Burton QC and Caragh Nimmo.