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Court of Appeal rules against council on overcrowding and deliberate acts

The Court of Appeal has allowed an appeal over whether an appellant, who lives with his partner and their two children in a one bedroom flat where they are "statutorily overcrowded", is entitled to be included within Band 1 of Southwark Council's Housing Allocation Scheme.

The London borough decided that Favio Flores was not so entitled, because he had caused the overcrowding by his own deliberate act in moving into the property in the first place.

In May Mr Justice Martin Spencer found in the High Court that it made no difference whether or not the claimant was aware of the council’s policy when the family moved into the one-bedroom flat.

He moved there with his partner and two children in 2014, and when his oldest child became 10 the accommodation became statutorily overcrowded for the purposes of s.326 of the Housing Act 1985.

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Mr Flores appealed.

In Flores, R (on the application of) v London Borough of Southwark [2020] EWCA Civ 1697 the Court of Appeal allowed his appeal.

Lord Justice Males found:

41…..[It] seems to me that the relevant terms of paragraph 6.2 of the Southwark Scheme are clear. "Deliberate" is an ordinary English word which requires no explanation or glossing. An act is deliberate if it is something which the person who does it intends to do. It need not be culpable or planned. Accordingly, in agreement with the judge, I see no reason to interpret paragraph 6.2 as involving concepts of culpability. That is an unnecessary complication, apparently derived from paragraph 5.24 which, it is agreed, does not apply in this case. The applicant for public housing for whom the Scheme is primarily intended should not have to comb through this 60 page document, in the way that a lawyer might, to see whether the clear terms of paragraph 6.2 require qualification as a result of other provisions dealing with situations which do not apply to his case.

42. The relevant paragraph of the Scheme requires the council to focus on the cause of the statutory overcrowding and, having identified that cause, to ask itself whether the cause was a deliberate act by the applicant. The cause must necessarily be ascertained from the information which the applicant has provided. The council is not required to carry out extensive investigations and it would not be a good use of its limited resources to insist that it do so. But in the present case the facts are clear and not disputed.

43. What then was the cause of the statutory overcrowding in this case?

44. 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.

45. 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.

46. This is enough in my judgment to decide this appeal. However, in view of the submissions addressed to us, I would add three observations.

47.  First, in my view the supposed distinction between overcrowding as a result of children growing older and overcrowding as a result of an addition to the family by birth or adoption is misconceived. It is not actually a distinction contained in the Scheme, which merely states that a natural increase in family size due to birth or adoption is not to be regarded as a deliberate worsening of an applicant's housing circumstances. It says nothing about the natural growth of children. Indeed, birth and adoption are much more likely to be caused by a deliberate act than the natural and inevitable growth of existing children. So even if it were relevant to interpret paragraph 6.2 of the Scheme by reference to paragraph 5.24.1, the result would be the same.

48.  Second, I cannot see any valid basis on which the appellant could be placed in Band 3. That expressly excludes applicants who are statutorily overcrowded. Given that, as is common ground, Band 2 is not relevant in this case, the appellant should either have been placed in Band 1 (if the statutory overcrowding was not caused by his deliberate act) or in Band 4 (if it was). That gives coherence to the Scheme as it makes sense for an applicant whose deliberate act is the cause of his own problem to be given reduced priority. The fact that Ms Tait considered Band 3 to be the closest fit for the appellant's circumstances ought to have alerted her to the fact that something had gone wrong in her decision-making.

49.  Third, the council's approach leads to some odd, or even perverse, consequences. It means that an applicant who acts reasonably in taking the most suitable accommodation for his family that he can afford disqualifies himself from priority once his children grow to an age which renders that accommodation statutorily overcrowded. An interpretation of the Scheme which has that consequence, or which incentivises an applicant to refuse accommodation which is suitable for his current needs because of the consequences which will ensue when his children reach the age of 10, is to say the least counter-intuitive and requires careful scrutiny.

Lord Justice Males, with whom Lord Justice Baker and Lord Justice Floyd agreed, made a declaration that the appellant was entitled to be placed in Band 1 of the Southwark Housing Allocation Scheme, and to be treated as having been so placed with effect from 11th October 2019, the date of the decision letter.

“Based on the information available to us, it appears that the appellant is also entitled to a priority star,” he added. “However, a claim for a priority star did not form part of the appellant's claim for judicial review. I would therefore make no declaration to this effect, but would leave the council to consider in the light of this judgment whether there is any reason why such a star should not be awarded.”

The Court of Appeal judge said that this might be regarded by some as "jumping the queue". He said: “It means, inevitably, that the appellant will move ahead of others who are currently ahead of him. But that is merely the consequence of applying the council's allocation scheme, which is designed by the council to determine which applicants within the borough of Southwark should have priority over others, in a practical and common sense way.”

Lawyers for the family, from London law firm Osbornes Law, and campaigners who fought for the family argued that local authorities across the UK would no longer be able to unfairly claim families have moved into small properties as a ‘deliberate act’ to get up the housing list.

Manjit Mandair, a specialist housing litigation lawyer from Osbornes Law who represents the family, said: “Most people like Favio and his family move into properties that they can afford out of necessity rather than have an involved agenda for getting up the housing ladder. It is deeply unfair that Mr Flores and his family were accused of this and we hope this judgment will help others in a similar situation.”

Izzy Köksal, spokesperson for Housing Action Southwark and Lambeth, who helped the family in their legal action, said: “Overcrowding is a huge problem in London and across the UK and is part of the wider housing crisis. Councils have been blaming families and penalising them because they are living in overcrowded conditions and this is devastating for them. Many don’t understand why they are being made to feel responsible for living in the only housing they can afford. We hope this judgment will stop the cruel blaming of people who are victims of the housing crisis.”

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