Trinity Social Housing Law barrister, Henry Percy-Raine has prepared the following summary of the recent case of R (On the Application Of Roman) v London Borough of Southwark  EWHC 1232 (Admin).
The Claimant sought Judicial Review of the decision of LBC (“the Council”) refusing his request to be placed in priority Band 1 of the Council’s housing allocation scheme (“the Scheme”).
The Council operated a scheme pursuant to ss.159 and 166A Housing Act 1996 for determining the priority and procedure to be followed in allocating social housing. The scheme had four bands, Band 1 being the highest priority. The scheme included a provision in section 6.2 that Band 1 included “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”.
In February 2021, the Council produced guidance on assessing overcrowding. It was unpublished guidance, intended for the Council’s officers in implementing the scheme. The guidance provided that if a household was statutorily overcrowded the officer must assess whether the statutory overcrowding had been caused by a deliberate act and consider whether any actions of the applicant had contributed to the household becoming statutorily overcrowded. The guidance explained that the Council would place households in Band 3 as opposed to Band 1 where they were statutorily overcrowded due to a deliberate act.
The Claimant, his wife and two children lived in a one-roomed studio flat. The Claimant and his wife originated from Ecuador; the family subsequently became Spanish citizens. They moved into the flat in November 2016. The Claimant and his wife worked as cleaners for low wages. In June 2020, the Council allocated the Claimant to priority Band 3 as an overcrowded household but maintained the statutory overcrowding was the result of a deliberate act and therefore they were not eligible for priority Band 1. The Council subsequently conceded a Band 3 priority star for overcrowding should be awarded.
In July 2021, the Council issued the decision which was the subject of challenge. It upheld the earlier decision to allocate the Claimant to priority Band 3. The Council found that the statutory overcrowding had been caused by a deliberate act in accordance with section 6.2 of the scheme which excluded the Claimant from Band 1. The detailed reasons for the decision are set out at .
The Claimant’s grounds of challenge were:
- i) Ground 1(a). It was irrational for the Council to conclude that the Claimant’s statutory overcrowding was caused by a deliberate act of the Claimant, and, in particular, it was irrational to conclude that at the time the Claimant moved into his accommodation he had the option of moving into suitable alternative accommodation which was not statutorily overcrowded.
- ii) Ground 1(b). As the Claimant was not able to afford alternative suitable accommodation which was not statutorily overcrowded, his decision to move into statutorily overcrowded accommodation was not a “deliberate act”.
- iii) Ground 2. The Council’s scheme was unlawful as it did not explain the criteria that the Council applies when determining if an applicant has committed a “deliberate act”. Those criteria are set out in an unpublished document which was only available to the Council.
- iv) Ground 3. The decision breaches Article 14, read together with Article 8, of the European Convention on Human Rights.
The High Court allowed the claim for Judicial Review on Grounds 1(a) & (b).
The judgment considered Ground 1(b) first which concerned the proper interpretation of the “deliberate act” provisions in the scheme. The Claimant contended that the correct interpretation of “deliberate act” provided an act was only deliberate if a person had a real choice between two or more viable options and voluntarily elected to do the act; accordingly his act of moving into the flat could not be regarded as being “deliberate” as he had had no real choice in the matter due to his inability to afford larger housing.
As to Ground 1(b), the following points were made:
- The Court of Appeal’s judgment in R (Flores) v Southwark LBC EWCA Civ 1697 confirmed that an act is deliberate if it is something which the person “intends to do” but did not address the question of whether an act was deliberate when it was not voluntary as the person had no real choice.
- The reasoning in Flores at  and the principles found in the jurisprudence of homelessness and rent/ mortgage arrears cases gave support to the Claimant’s interpretation where the courts had found that in circumstances where a person has no real choice their act cannot be regarded as being “deliberate”.
- Lang J concluded that the correct interpretation of the “deliberate act” provisions in the scheme was that an act was 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 .
As to Ground 1(a), the following points were made:
- The reliance placed on the Claimant’s decision to leave Spain and Ecuador was irrational; there were sound reasons for such moves and those decisions were not the proximate cause of the overcrowding. The further finding that the Claimant unreasonably arranged for his wife and children to join him without first finding suitable accommodation was irrational and did not have proper regard for his circumstances and their right to family life.
- The finding that the Claimant could have moved into more suitable accommodation was based on the Council’s incorrect assessment of the family income and did not take into account the Claimant’s inability to demonstrate full-time employment for a year and pay five months’ rent upfront which effectively barred him from being accepted as a tenant.
- It was illogical to have relied on the Claimant’s failure to look for suitable accommodation after he moved into the flat; such was not the cause of the statutory overcrowding and in any event, it was difficult to reconcile this as a “deliberate act” within the meaning of the scheme as this was an omission rather than a positive act.
- Overall, Lang J concluded some of the reasoning in the July 2021 decision was demonstrably flawed and some of the conclusions reached were unreasonable. In light of the findings, Lang J could not be satisfied it was highly likely the outcome would not have been substantially different if the conduct complained of had not occurred.