Council defeats Court of Appeal challenge on overcrowding and accommodation in House in Multiple Occupation

The London Borough of Haringey has defeated a legal challenge over the suitability of accommodation for a resident.

The appellant took the council to the Court of Appeal where Lord Justice Stuart-Smith gave the main judgment in Rowe v London Borough of Haringey [2022] EWCA Civ 1370.

He said the appeal arose from Haringey's refusal of the appellant’s application for housing assistance.

Her grounds raised two main questions, the judge said. “First, on the assumption that Part X of the Housing Act 1985 applies when deciding whether it was reasonable for the appellant to continue her occupation of her existing accommodation, should the question of overcrowding have been decided by reference to the whole of the property in which she was living and of which her accommodation formed part?

“Second, what (if anything) is the relationship between the concept of reasonableness for the purposes of deciding if a person is homeless and the concept of suitability for the purposes of a local authority discharging its duty to provide suitable accommodation to a homeless person?”

The appellant lives with her two young boys in a multi-occupancy house in Haringey in which they have exclusive use of one room and shared use of a kitchen and bathroom with four other adults.

She applied to Haringey in March 2021 for housing assistance on the basis that she was homeless because it was not reasonable for her to continue occupation of the house.

This was because she felt overcrowded and complaints to the landlord about her children’s behaviour meant she was “safe but not comfortable”.

Haringey rejected her application, concluding she was not homeless because she had accommodation which it was reasonable for her to continue to occupy,

She was not overcrowded under the space standard as both children were under the age of 10 and so could share a room with her.

The appellant appealed unsuccessfully to the County Court arguing the conclusion that the house was not overcrowded was erroneous as a matter of law.

She said Haringey failed to make enquiries to determine how many other households or individuals occupied the house and so it was impossible to decide whether the house as a whole was overcrowded.

The appellant also said Haringey failed to consider that the house was an unlicensed HMO and no reasonable authority could have failed to regard a licence as necessary.

Haringey argued that ‘dwelling’ in section 325(1) of Housing Act 1985 referred to the appellant's accommodation and not to the house as a whole.

Whether other occupants of the house were overcrowded in their accommodation was irrelevant, the council said.

The county court heard section 3 of the Housing Act 1988 deemed her accommodation to be a dwelling-house let on an assured tenancy and concluded it would be illogical for the appellant’s tenancy to be a dwelling house for the purposes of that Act but not for the purposes of the 1985 Act and held ‘dwelling’ referred only to the appellant’s accommodation.

Her grounds of appeal were that the county court erred in concluding that her bedroom, rather than the whole house in multiple occupation, was the relevant ‘dwelling’ and so in further concluding that Haringey had properly considered overcrowding.

She also argued the county court judge erred in concluding that the respects in which the property was not ‘suitable’ were not relevant considerations.

Haringey then withdrew its review decision as it accepted it had failed to enquire into HMO licensing. It argued this rendered the appeal academic.

But Stuart-Smith LJ said it was not because the case “raises issues that will be relevant to and could affect the outcome of the reassessment that the respondent will inevitably have to carry out in the light of its withdrawal of its original decision”.

He said, assuming that Part X of Housing Act 1985 applied, it required the question of overcrowding to be assessed by reference to the house as a whole.

“If it does not, the appeal on Ground 1 fails without the need for us to decide the separate question whether Part X applies to an HMO such as the house at all.

“Equally, it is not necessary to decide the separate question whether Part X also required the question of statutory overcrowding to be assessed by reference to the appellant's accommodation alone: if it did, the local authority complied with that requirement and its decision cannot be criticised since the appellant's accommodation satisfied both the room standard and the space standard.”

Stuart-Smith LJ said: “I would hold that ss. 325 and 326 of Housing Act 1985 do not require the question of overcrowding to be assessed by reference to the occupation of the house as a whole.”

Haringey dealt with the appellant's submissions “expressly and adequately” and drew “the reasonable distinction between not feeling comfortable and feeling at risk: the important feature was that the appellant did not feel at risk and was able to carry out all her day-to-day activities”, the judge said.

“In addition, the reviewing officer specifically addressed the space that was available to [her] and concluded that there was no evidence that the size of the accommodation had any significant effect on the appellant or her children.

“There was and remains no evidence…that the size of the communal facilities was in any way inadequate: the only point raised by the appellant related to the one neighbour who had complained; and that complaint was not about space but about the children's behaviour.”

The appellant’s other grounds were not made out; Stuart-Smith LJ said Haringey had been entitled to conclude she was not overcrowded.

He concluded Haringey gave adequate consideration to whether it was reasonable for her to continue in the accommodation.

“But for the respondent's concession about the status of the house [licence], I would dismiss this appeal”, Stuart-Smith LJ said. 

He would instead remit the withdrawn decision to Haringey to  reconsider in the light prevailing circumstances and “any guidance that can usefully be gained from our decision on this appeal”.

Agreeing with his judgment, Lord Justice Nugee said: “ The upshot of the long series of cases is that if premises are let to an occupier on terms that living accommodation is shared with others not in the same household, the occupier does not have a separate dwelling.

“For these purposes a kitchen is (generally) part of the living accommodation in a house so if, like the appellant, the occupier of a bedroom has shared use of the kitchen, she does not have a separate dwelling.

"More significantly for present purposes, no one household occupies the house in which the Appellant lives as a whole. It is a house occupied by several different households. This is the very antithesis to a house let as a separate dwelling.” Lord Justice Arnold agreed with both judgments.

Mark Smulian