Statutory overcrowding and HMOs

Nicholas Grundy KC and Jennifer Moate consider a recent Court of Appeal ruling on the issue of overcrowding and whether it is reasonable for a homeless applicant to remain in accommodation in an HMO.

The Court of Appeal case of Rowe v London Borough of Haringey [2022] EWCA Civ 1370 was a second appeal against the London Borough of Haringey's (LBH’s) review decision that Ms Rowe was not homeless because the room in an HMO of which she had a tenancy was reasonable for her to continue to occupy, even though she shared that room with her two sons, both aged under ten.

Ms Rowe had three Grounds of Appeal. They make most sense if the last is considered first. Ground Three was that the Suitability criteria that apply to accommodation secured by a LHA in discharge of a housing duty under the Housing Act 1996, Part 7, are relevant in assessing whether any accommodation is reasonable for a person to continue to occupy. For these purposes a LHA cannot make a private rented sector offers of accommodation in unlicensed HMOs: See the Homeless (Suitability of Accommodation) (England) Order 2012, Art 3, paras. (f) and (g). The other two grounds of appeal concerned the correct approach to assessing whether accommodation in an HMO is overcrowded. It was Ms Rowe’s case that when assessing overcrowding in an HMO the standards in the Housing Act 1985, Part X must be applied to the whole house and not, as LBH had done, to her room. She also asserted that LBH had failed to consider overcrowding generally.

The Court of Appeal dismissed the Appeal. Whilst recognising that there may be an overlap between the relevant factors in determining whether accommodation is suitable and reasonable to continue to occupy, the Court identified that the two concepts are dealt with separately in the HA96 and in subordinate legislation: See [37]. In assessing overcrowding the Court held that LBH had not erred in law in considering whether Ms Rowe’s room was overcrowded rather than assessing the whole of the HMO: See [78]. Otherwise, the issues relating to overcrowding relied on by Ms Rowe had not been raised by her on her request for a review and were not so obvious that LBH should have considered them nonetheless: [83].

Prior to the appeal, on our advice, LBH withdrew its review decision because it recognised that once it was aware that Ms Rowe’s room was in an HMO it should have investigated whether or not the HMO was licensed. This was not however, a ground of appeal pursued by Ms Rowe on her second appeal.

A copy of the judgment can be found here.

Nicholas Grundy KC and Jennifer Moate are barristers at Five Paper. They represented the London Borough of Haringey, instructed by Rachael Bonus, before the Court of Appeal.