Harouki v Kensington and Chelsea Royal London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward,Lord Justice Thomas,Lord Justice Richards |
| Judgment Date | 17 October 2007 |
| Neutral Citation | [2007] EWCA Civ 1000 |
| Docket Number | Case No: B5/2007/0537 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 October 2007 |
[2007] EWCA Civ 1000
Lord Justice Ward
Lord Justice Thomas and
Lord Justice Richards
Case No: B5/2007/0537
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LONDON CIVIL JUSTICE CENTRE
His Honour Judge Knight QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Kerry Bretherton (instructed by J.D. Spicer & Co) for the appellant
Bryan McGuire (instructed by Royal Borough of Kensington and Chelsea Law & Administration Dept) for the respondent
Hearing date: 4th July 2007
Judgement
The issue in this appeal
Section 327 of the Housing Act 1985 (“the 1985 Act”) makes it a summary offence punishable by a fine for the occupier of a dwelling to cause or permit it to be overcrowded which it will be when the number of persons sleeping in the dwelling is such as to contravene either the room standard or the space standard as specified in sections 325 and 326 of the 1985 Act respectively. Section 175 of the Housing Act 1996 (“the 1996 Act”) provides that a person is homeless if he has no accommodation available for his occupation which he is entitled to occupy and by virtue of subsection (3), he shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy. The applicant, Mrs Harouki, is the tenant of and so entitled to occupy 6 Yeovil House, Sutton Way, London W10 with her husband and five children in circumstances where the space standard for overcrowding is contravened. She commits an offence every day and night this continues. The issue in this appeal is this: was the Housing Review Officer of the respondent borough acting illegally, perversely or irrationally in concluding that notwithstanding her committing that continuing criminal act, it was still reasonable for her to continue to occupy the premises and, accordingly, that she was not homeless? His Honour Judge Knight QC sitting in the Central London County Court on 1st March 2007 dismissed her appeal from that decision. Sir Henry Brooke granted permission to appeal because the appeal “raises an important point of law on which it is desirable to obtain an authoritative ruling from [this Court]”.
More of the legislative scheme
First under Part 10 of the Housing Act 1985, section 326 provides that the space standard is contravened when the number of persons sleeping in the dwelling is in excess of the permitted number, having regard to the number and floor area of the rooms available as sleeping accommodation as specified in the table set out in that section. This constitutes overcrowding within the meaning of section 324 and gives rise to the offence under section 327. The fine to which the occupier is liable shall not exceed level 2, but it may include a further amount for every day after conviction on which the offence continues. There are exceptions, for example, for children as they attain the ages of one and ten as the case may be, or for visitors. In exceptional circumstances the local authority can grant a licence permitting the overcrowding (section 330). On the other hand, where a dwelling is overcrowded in circumstances giving rise to an offence, the local housing authority can serve an abatement notice and can then obtain an order in the County Court that vacant possession be given to the landlord (section 338). By section 339 it is the duty of the local housing authority to enforce the provisions of Part 10, and a prosecution for an offence under those provisions may be brought only by the authority. Section 216 of the Housing Act 2004 permits the appropriate national authority to make orders determining whether a dwelling is overcrowded for the purposes of Part 10 but this section is not yet in force.
Part 7 of the Housing Act 1996 deals with homelessness. Section 177 is important in determining whether it is reasonable for the applicant to continue to occupy the accommodation. It provides:
“(1) [A special provision for those suffering domestic or other violence.]
(2) 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 to whom he has applied for accommodation or for assistance in obtaining accommodation.
(3) The Secretary of State may by order specify—
(a) other circumstances in which it is to be regarded as reasonable or not reasonable for a person to continue to occupy accommodation, and
(b) other matters to be taken into account or disregarded in determining whether it would be, or would have been, reasonable for a person to continue to occupy accommodation.”
No relevant orders have been made by the Secretary of State under subsection (3).
If the local authority is under a duty to find accommodation for the homeless applicant, it discharges that function by securing that “suitable accommodation” is provided and, pursuant to section 210:
“(1) In determining for the purposes of this Part whether accommodation is suitable for a person, the local housing authority shall have regard to Parts IX, X and XI of the Housing Act 1985 (slum clearance; overcrowding; houses in multiple occupation).
(2) The Secretary of State may by order specify—
(a) circumstances in which accommodation is or is not to be regarded as suitable for a person, and
(b) matters to be taken into account or disregarded in determining whether accommodation is suitable for a person.”
No relevant orders have been made under subsection (2) touching upon overcrowding.
A code of guidance has been issued on how to determine whether a person is homeless for the purposes of Part 7. This provides:
“8.26. Section 177(2) provides that, in determining whether it is reasonable for a person to continue to occupy accommodation, housing authorities may have regard to the general housing circumstances prevailing in the housing authority's district.
8.27. This would apply, for example, where it was suggested that an applicant was homeless because of poor physical conditions in his or her current home. In such cases it would be open to the authority to consider whether the condition of the property was so bad in comparison with other accommodation in the district that it would not be reasonable to expect someone to continue to live there.
8.28. Circumstances where an applicant may be homeless as a result of his or her accommodation being overcrowded should also 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 by itself be sufficient to determine reasonableness, but it can be a contributory factor if there are other factors which suggest unreasonableness.”
The background facts
The appellant lives with her family in a self-contained flat on the second floor of a purpose built block. The dwelling has three bedrooms, a living room, kitchen and bathroom. Bedroom 1 measures 10.25 m 2. Mr and Mrs Harouki had been estranged but had reconciled and resumed living together. They occupy this bedroom together with their ten year old son and four year old daughter. Bedroom 2 measures 6.72 m 2 and is occupied by their seventeen and eighteen year old daughters. The third bedroom measures only 5.69 m 2 and this is occupied by their twenty year old son who suffers obesity and could more comfortably sleep on a 4 ft bed rather than his present 3 ft bed but this would further cramp the little space available in this room. The living room measures 16.44 m 2 and is used as a place for the children to do their homework and for general living though it is deemed to be a bedroom for the purpose of calculating statutory overcrowding.
It is common ground that that accommodation exceeds the space standard for overcrowding in that, according to the statutory calculations, it is fit for occupation by only five and a half persons whereas there are six currently sleeping there.
There is also no challenge by the local authority that Mrs Harouki suffers a degree of ill health, being diagnosed with depression, an underactive thyroid and back pain for each of which she is prescribed medication of a moderate dosage. It was not disputed that she would to some extent suffer from a degree of low mood and depression in view of her overcrowded circumstances. Given her back ache, she has difficulty using the stairs especially when carrying home the shopping for this large family. Thus the housing authority accepted that her current accommodation was not ideal in terms of size and floor level but on her renewed application to be treated as homeless, the housing adviser 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...
To continue reading
Request your trial
-
Temur v Hackney London Borough Council
...processes as well as different criteria. 55 Mr Colville places reliance upon the Court of Appeal's decision in Harouki v Kensington and Chelsea Royal London Borough Council [2007] EWCA Civ 1000; [2008] 1 WLR 797. I accept that, for the reasons stated by Ward LJ in Harouki, the tests appli......
-
R (Aweys and Others) v Birmingham City Council
...homeless, which, I note, was the way the housing authority treated overcrowding in Harouki v Royal Borough of Kensington and Chelsea [2007] EWCA Civ 1000. 31 Mr Jan Luba Q.C. was retained to argue the case for the respondents in this Court. He took us on a grand and informative tour of the......
-
Shellett Rowe v London Borough of Haringey
...be homeless, for whatever reason. It is easy to accept that they are “related concepts”: see Harouki v Kensington & Chelsea LBC (CA) [2007] EWCA Civ 1000, [2008] 1 WLR 797 at [20]. But there is no logical reason why the two concepts should be regarded as congruent, and the separate statut......
-
R (Adele Nipyo) v Croydon London Borough Council
...made homeless because the accommodation they occupy is statutorily overcrowded: see Harouki v Royal Borough of Kensington and Chelsea [2007] EWCA Civ 1000. 29Dealing with the individual decisions, it is submitted that by 11th December, the defendant knew and took into account the 30i) the ......
-
Reducing Homelessness or Re‐ordering the Deckchairs?
...36; [2009] WLR 1506.20 Housing and Planning Act 1986, s 14; see now Housing Act 1996, s 175.21 Harouki vKensington and Chelsea RLBC [2007] EWCA Civ 1000; [2008] 1 WLR 797; Tem u rvLondon Borough of Hackney [2014] EWCA Civ 877; Poshteh vKensington and Chelsea RLBC[201] UKSC 37, [2017] AC 624......