R (on the application of Flores) v London Borough of Southwark [2020] EWHC 1279 (Admin)

In an application for judicial review, the Claimant was seeking to review the Defendant’s decision to assess him in Band 3 for overcrowding within the Defendant’s housing allocation scheme.

The Facts

In July 2014 the Claimant, his wife and two children moved into a one-bedroom property. At the time of the move, the Claimant’s eldest son was eight years old meaning the property was not statutorily overcrowded for the purposes of s326 of the Housing Act 1985.

The Claimant moved into the property because it was all he could afford. He applied to join the housing register and was initially registered under priority Band 4 on 17 May 2019. This was due to the fact that the overcrowding was not because of a natural increase, but a deliberate act on the part of the Claimant in moving his family into the property, and also due to a failure in meeting the local connection criteria.

On 24 May 2019 the Claimant requested a review, asserting that he qualified for Band 3. The Defendant agreed that the Claimant would meet the local connection criteria to qualify for Band 3 from 27 July 2019 and he was invited to contact them when this was done.

The Claimant did request a further review meeting the relevant local connection criteria seeking to be placed in Band 3.

In its review of this decision on 11 October 2019 the Defendant agreed that the Claimant could now be assessed as Band 3, but confirmed that the Claimant could not meet the criteria for Band 1 as he and his family moved into the overcrowded accommodation at the outset and the overcrowding was not therefore caused by a natural increase.

Band 1 of the Defendant’s housing allocation scheme includes the following: “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.”

It was only after the decision was made to assess the Claimant as Band 3 that the Claimant sought judicial review of the decision not to place him in Band 1 of the scheme.

The Defendant rejected that request on the grounds that the fact the Claimant’s son turned 10 was not a natural increase. The policy reasons were made clear, that applications cannot be allowed to jump the queue on the basis of statutory overcrowding that has been caused by moving into properties which were clearly unsuitable from the start.

The Judgment

The Defendant argued that the Claimant had no right to judicial review where the application was never put to the decision maker; where the Claimant had twice sought and obtained a review of his priority on a different basis; and had exhausted the scheme’s mechanism for review,

The court was satisfied that it could entertain the application for judicial review on the basis that the decision on 11 October 2019 did consider whether the Claimant qualified to be placed within Band 1 of their housing scheme.

The substantive ground of challenge was brought by the Claimant on the basis that there was a failure to investigate and assess the circumstances in 2014 when the Claimant acquired the flat.
The Claimant was arguing that the phrase ‘deliberate act’ contained within the scheme’s criteria implied culpable behaviour of the Claimant at the time of moving into the property and, in this particular case, no account was taken of the fact that at the time of moving in the property was not statutorily overcrowded.

The Claimant argued that there was an unfair distinction between having an additional child which is termed a natural increase, and the aging of children requiring their own rooms which is not.

The Defendant submitted that the Claimant had caused the statutory overcrowding by a deliberate act, and that the distinction between a natural increase and natural growth was consistent with the statutory scheme under part X of the Housing Act 1985.

The court found that where the Defendant’s policy referred to a deliberate act, it meant that the act was deliberate in the sense the Claimant voluntarily entered into the tenancy in question and did not require a finding of culpability.

The Claimant’s ignorance of the statutory scheme was not relevant to this question and the interpretation the Claimant was arguing was incorrect.

The Court also held that the Defendant was not obliged to carry out an extensive investigation as argued by the Claimant and dismissed the claim.

Summary by Morgan Brien, barrister, Trinity Chambers on Lime Legal 

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