Harouki v Royal Borough of Kensington & Chelsea [2007] EWCA Civ 1000

This appeal from the county court concerned the claimant’s contention that the Housing Officer of the defendant borough (K) had acted illegally, perversely or irrationally in concluding that it was reasonable to allow a tenant family to occupy a dwelling when it was overcrowded and in breach of s327 of the Housing Act 1985.

The claimant (H) occupied a three-bed roomed property owned and leased by K to her and her husband and their five children.  It was common ground that the property was only fit for occupation by five and a half persons.  The housing authority accepted that her current accommodation was not ideal but on H’s application to be treated as homeless the advisor concluded that the accommodation was not “…so crowded nor so difficult to access … that it was unreasonable for (the applicant and her family) to occupy.”  She exercised her right to ask the housing authority to review that decision.  In a detailed decision letter, the Housing Review Officer set out the basis for refusing the renewed application. The Housing Officer had concluded that the fact that someone’s accommodation might be ‘statutorily overcrowded’ did not in itself make the accommodation unreasonable to occupy if there was a prevailing shortage of housing in the area concerned (see s177(2) Housing Act 1996).  He stated that there were twenty-one other households on the housing register who were in greater need of housing than H’s family and that H was not homeless since she had accommodation available to her and her family which was suitable for her needs, available to occupy and reasonable for her to continue to occupy.

The relevant law is set out in Part 7 of the Homelessness Act 1996 s177 which states “…in determining whether it would be or would have been reasonable  for a person to continue to occupy accommodation, regard may be had to the general circumstances prevailing in relation to housing in the district of the local housing authority …”

S210 of the 1996 Act states “If a local authority has a duty to find accommodation … for homeless applicant … in determining whether accommodation is suitable regard shall be had to parts IX,X,XI of the Housing Act 1985 …”

The Code of Guidance to assist on determining whether a person is homeless for the purposes of Part 7 of the 1996 Act states that statutory overcrowding may not by itself be sufficient to determine reasonableness but can be a contributory factor if there are other factors which suggest unreasonableness.

The proper question for the court was therefore to ask whether in light of in the context of the prevailing housing conditions it was reasonable for H to occupy her accommodation.  The court could find no direct authorities on the question but R v Brent London Borough Council ex parte Awua held that a local authority was entitled to regard a person as having accommodation (and therefore as not being homeless) if he has accommodation which, having regard to the general circumstances prevailing in the district of the local housing authority, that it would be reasonable for him to continue to occupy.  R v Camden BC ex parte Jibril supported this proposition and held that the authority was entitled to look at both housing shortages and the nature of the accommodation available.  The court of appeal found that contrary to the appellant’s submissions, the Code of Guidance accurately expressed the law and overcrowding did not necessarily prevent accommodation being reasonable for an applicant to continue to occupy.  If the contrary conclusion were to be reached there would exist a ludicrous situation in which each time an applicant alleged statutory overcrowding the local authority would have  a duty to find alternative accommodation which may be suitable notwithstanding it was overcrowded, and yet it was unreasonable for the applicant to continue to occupy it.  The applicant could once again demand to be rehoused and the situation would go on forever.  The court held that this could not be correct.  K’s Housing Officer had not acted illegally or irrationally in concluding that it was reasonable to require H to continue to occupy the flat until it was her turn to be rehoused.

Appeal dismissed

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