Claimant wins High Court battle over decision by council that statutory overcrowding was ‘deliberate act’

A family from Ecuador has won a judicial review of the London Borough of Southwark’s decision that their dwelling was statutorily overcrowded but this had been caused by a ‘deliberate act’ on their part.

In Roman, R (On the Application Of) v London Borough of Southwark [2022] EWHC 1232 Milton Laines Roman challenged the council's refusal of his request to be placed in priority Band 1 of its housing allocation scheme, which in effect meant they were unlikely to secure accommodation.

Mrs Justice Lang ruled that Mr Roman and his family were not living in overcrowded accommodation because of a ‘deliberate act’ on their part.

The claimant, his wife and two children live in a studio flat in Southwark, which the council accepted was statutorily overcrowded.

Mr Roman challenged Southwark successfully on the grounds that it had been irrational for the council to conclude that statutory overcrowding was caused by his deliberate act and to rule that he had had the option when moving in of instead opting for alternative accommodation which was not statutorily overcrowded.

Mr Roman also succeeded on the ground that as he was not able to afford alternative suitable accommodation which was not statutorily overcrowded, his decision to move in was not a ‘deliberate act’ within the meaning of section.

After various moves between Ecuador, Spain and the UK the family settled in Southwark in 2016, after which Mr Roman had jobs that paid only low wages.

They moved into the flat, which comprises one main room - which contains the kitchen and beds - and a bathroom.

A series of disputes followed about Mr Roman’s housing application to Southwark and in 2019, the council accepted that he was able to demonstrate a local connection because of his wife's employment in the borough and that the flat was statutorily overcrowded.

Southwark said though that Mr Roman had been aware from the outset that the flat was not suitable because of overcrowding, and by choosing to rent such accommodation placed the family in a situation of extreme overcrowding.

The council said Mr Roman had deliberately worsened his circumstances to qualify to join the housing register, and rented the overcrowded flat to gain an unfair advantage on the housing waiting list.

Southwark also found Mr Roman had the financial means to rent a two bedroom property, and could have obtained accommodation further from the centre of London. Disputes over the matter continued into 2020.

Lang J said interpretation of the relevant paragraph of Southwark’s scheme was considered by the Court of Appeal in R (Flores) v Southwark LBC [2020] EWCA Civ 1697.

This also concerned overcrowding due to what Southwark decided was a  ‘deliberate act’.

“The decision was overturned by the Court of Appeal which held that the cause of the statutory overcrowding was the appellant's children growing older, as opposed to his earlier decision to move into the accommodation, and that natural growth could not be regarded as a deliberate act on the part of the appellant,” Lang J said.

She said case law led her to conclude the correct interpretation of the ‘deliberate act’ provision was that an act was only deliberate if the applicant had a real choice between two or more viable options and voluntarily elected to do the act.

The judge said there was further support for this in Al-Ameri (FC) v Royal Borough of Kensington and Chelsea [2004] UKHL 4, where the House of Lords held that where a person must choose between two options, one of those options being destitution, a person does not elect the alternative option of their own choice.

Lang J also concluded that some reasoning in a notification letter sent by Southwark to Mr Roman was “demonstrably flawed, and some of its conclusions were unreasonable” and she could not be satisfied that it was highly likely that the outcome would not have been substantially different if the conduct complained of had not occurred.

The judge rejected though two other grounds argued. These were that Southwark’s scheme was unlawful as it did not explain the criteria applied when determining if an applicant has committed a ‘deliberate act’ and that Southwark’s decision breached Article 14, read together with Article 8, of the ECHR.

Mark Smulian