Elrify v City of Westminster Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,Lord Justice May,Lady Justice Smith |
| Judgment Date | 23 March 2007 |
| Neutral Citation | [2007] EWCA Civ 332,[2006] EWCA Civ 255 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B2/2005/2000,Case No: B5/2005/2000 |
| Date | 23 March 2007 |
[2006] EWCA Civ 255
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CLERKENWELL COUNTY COURT
(HIS HONOUR JUDGE SIMPSON)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice May
B2/2005/2000
The Applicant appeared in person
The Defendant did not attend and was not represented
Judgement
( Approved by the Court)
Mr Elrify seeks permission to appeal as a second appeal against a decision in the county court of His Honour Judge Simpson on 19 August 2005. He also needs and seeks an extension of time for that application. He applies this morning for an adjournment. He does so on the grounds that he has very considerable difficulty in advancing his application himself. He is suffering from a number of long-term disabilities. He tells me that he is currently not well and takes strong medication. He has been trying to obtain assistance from the RCJ advice bureau but as yet they have not been able to help him to the extent of helping him present his application. It is important that I record that this is not the first application that Mr Elrify has made for an adjournment. The application was originally listed to be heard on 24 January 2006. Mr Elrify applied in writing for an adjournment shortly before that hearing. I granted an adjournment on the papers, saying that Mr Elrify and the court were in need of legal assistance. This is the second application for an adjournment. I have some sympathy with Mr Elrify's position, but I hope he understands that these applications cannot go on for ever. What is more, he understands, I know, that he and his family get no advantage from adjourning these applications because it is only if the application is heard and if it succeeds that they will get any material benefit from these proceedings.
Mr Elrify and his family live in a small house, a three-bedroomed flat, near Finsbury Park. Mr Elrify owns the flat. He and his family first occupied it in about 1985 as council tenants. They took advantage of a right to buy scheme in about 1994 and purchased the flat. There was a mortgage. Apparently Mr Elrify redeemed the mortgage some time around the summer of 2005, but he tells the court that in order to do that it was necessary to take out a further loan and that that loan is of the order of £40,000. The respondents to this application are the City of Westminster. They have asserted upon professional advice that the property is worth up to £200,000. Whether that is right or wrong does not matter for present purposes, but it is plain that there is an equity value in this property.
Mr and Mrs Elrify live in this flat with their seven children. In April 2005 the children were aged approximately 5, 8, 13, 14, 16, 17 and 18, and all of them were then in full-time education. So there were last year, and no doubt still are, nine people living in this three-bedroomed flat. It is not a large flat. The three bedrooms, so far as I understand it from the papers, measure approximately 3 metres by 3 metres, the largest; the second, 2.75 metres by 1.8 metres; and the third is a very small room, measuring 2.35 metres by 1.8 metres. If some mathematics that have been done are correct, that third bedroom has a floor area of something of the order of 46 square feet.
I think I have picked up from Mrs Elrify's statement that at any rate last year the sleeping arrangements were approximately this. I may not have got it exactly right and it does not matter for present purposes, but I think the statement says that three of the male children sleep in the large bedroom; that two of the female children, one each, sleep in each of the two small bedrooms, that the other two female children sleep in the living room and that Mr and Mrs Elrify themselves sleep in a corridor or passage or something like that. It does not matter for the moment whether that is exactly right, but I simply relate it as my understanding of the overcrowding which this family has to endure.
Mr Elrify applied under Part 7 of the Housing Act 1996 for housing accommodation by the council. This was essentially on the basis that his present flat, albeit he owns it himself, is simply not large enough for him, his wife and their family. The council rejected the application. Mr Elrify sought a review of that decision under section 202 of the 1996 Act. Upon that review, the council again rejected his homelessness application but on grounds that were not entirely the same as those upon which they had rejected it in the first instance. Mr Elrify appealed to the county court under section 204 of the 1996 Act. The county court judge rejected that appeal and the present application is an application for permission to appeal against that decision.
The council's review decision, which was the subject of the appeal to the county court judge, was in a letter dated 19 May 2005. What that letter essentially said was that in the estimation of the council Mr and Mrs Elrify were not homeless as defined in section 175 of the Housing Act 1996 because they have accommodation at 45 Roth Walk which is reasonable for them to occupy. The letter states:
"I have considered whether the accommodation at 45 Roth Walk is reasonable for you to occupy. I acknowledge that the property is overcrowded due to the natural growth of your household. I note that according to the statutory standard that there is only 1 person too many in your home. I have also considered the prevailing housing circumstances in the area."
The letter goes on to note that Mr Elrify owns the flat in which he and his family live, and to say things about the value of that flat being in the region of £200,000. Thus the essence of the council's decision, looking at this letter, was that Mr Elrify and his family were not homeless because their flat was reasonably suitable for them to occupy. Part of the reasoning leading to that conclusion was that although it was overcrowded by reference to provisions relating to statutory overcrowding, it was only overcrowded by one person. So, looking at the case in the round, Mr and Mrs Elrify owned their flat; they have lived in it for a long time and the council's position is that there are a number of people within Westminster who are worse off than they are. Although it is overcrowded it is nevertheless reasonable for them in all the circumstances to live there.
There is a Homelessness Code of Guidance for Local Authorities, which says of overcrowding:
"Overcrowding must be considered in relation to general housing circumstances in the district. Statutory overcrowding within the meaning of Part 10 of the Housing Act 1985 may not of itself be sufficient to determine reasonableness, but it can be a contributory factor if there are other factors which suggest unreasonableness."
8. Mr Elrify has put in considerable writing in which he advances grounds of appeal which he seeks permission to bring forward. I have for my own benefit distilled them down into four, and they are briefly as follows. Firstly, he would say that the council wrongly considered that two or more of his daughters could move out of the premises. That is certainly correct about the first version of the council's decision but it no longer appears in the review decision and is not, I think, a ground of appeal that has any reasonable prospect of success. Secondly, he says that the council wrongly took into account any capital value in their present premises in reaching a decision whether or not the family was homeless.
The court has a skeleton argument from the respondent, who does not attend today, in opposition to this application. The judge held, and the respondents contend, that reference to the £200,000 was narrative reference and not part of the decision. I am inclined for present purposes to think that that may be right, but would reserve that question for future consideration.
The third proposed ground of appeal is that the judge refused to hear additional oral evidence from Mr Elrify and his wife that may or may not be a persuasive consideration. The fourth ground of appeal I would express as that the council and the judge reached an untenable decision as to reasonableness. I should perhaps say that the judge dismissed the appeal in fairly summary terms, saying that it was one of the more hopeless applications that had come before him.
I have a particular concern which may or may not be right—and I am not suggesting necessarily that it is right—but it seems to me that it is a matter that needs to be investigated. It is quite complicated. In outline, it is as follows. According to my understanding, statutory overcrowding is defined in Part 10 of the Housing Act 1985. It is necessary to refer in that context to section 324 and to section 326. It may or may not be the case that, by reference to section 326(3), in considering whether or not circumstances amount to statutory overcrowding, no account should be taken of a room having a floor area of less than 50 square feet. If the information to be derived from the documents is correct, the smallest bedroom in this flat has a floor area of less than 50 square feet. If that is right, and if it is correct, that by virtue of the statute the smallest bedroom should be left out of consideration, the council did not apparently do that when they considered this and their conclusion in the letter that the statutory standard of overcrowding was only exceeded by one person would be technically wrong. It is of course true that the flat is the flat, and no doubt the council considered the flat as it was. But if...
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