R Milton Laines Roman v London Borough of Southwark
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 24 May 2022 |
| Neutral Citation | [2022] EWHC 1232 (Admin) |
| Docket Number | Case No: CO/3370/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1232 (Admin)
Mrs Justice Lang DBE
Case No: CO/3370/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jamie Burton QC and Caragh Nimmo (instructed by the Public Interest Law Centre) for the Claimant
Catherine Rowlands (instructed by Legal Services) for the Defendant
Hearing date: 5 May 2022
Approved Judgment
The Claimant seeks judicial review of the decision made by the Defendant (“the Council”), on 2 July 2021, refusing his request to be placed in priority Band 1 of the Council's housing allocation scheme (“the Scheme”).
The Claimant, his wife and two children live in a one-room studio flat in East Street, Southwark (“East Street”). In its decision, the Council accepted that their dwelling was statutorily overcrowded, applying the criteria in Part X of the Housing Act 1985 (“HA 1985”). However, the Council found that the statutory overcrowding had been caused by a “deliberate act” on the part of the Claimant, within the meaning of section 6.2 of the Scheme, which excluded him from Band 1. Instead, he was placed in priority Band 3, with a priority star. This greatly reduced his chances of being allocated social housing under the Scheme.
The Claimant's grounds of challenge may be summarised as follows:
i) Ground 1(a). It was irrational for the Council to conclude that the Claimant's statutory overcrowding was caused by a deliberate act of the Claimant, and in particular it was irrational to conclude that at the time the Claimant moved into his current accommodation he had the option of moving into suitable alternative accommodation which was not statutorily overcrowded.
ii) Ground 1(b). As the Claimant was not able to afford alternative suitable accommodation which was not statutorily overcrowded, his decision to move into statutorily overcrowded accommodation was not a “deliberate act” within the meaning of section 6.2 of the Scheme.
iii) Ground 2. The Council's Scheme is unlawful as it does not explain the criteria that the Council applies when determining if an applicant has committed a “deliberate act” within the meaning of section 6.2 of the Scheme. Those criteria are set out in an unpublished document headed “Assessing Overcrowding — Overcrowding priority band assessment guidance” (“the Guidance”), which is only available to the Council.
iv) Ground 3. The decision breaches Article 14, read together with Article 8, of the European Convention on Human Rights (“ECHR”).
Permission to apply for judicial review was initially refused by a Judge on the papers, but granted at an oral renewal hearing by Freedman J. on 20 January 2022. Permission was granted on Ground 1. However, Freedman J. made no decision in respect of Grounds 2 and 3, instead ordering that the application for permission on those grounds be adjourned to a rolled-up hearing, to be listed on the same occasion as the substantive hearing on Ground 1.
Facts
The Claimant and his wife (Cecilia) originate from Ecuador. They have three children. Their older son, Hamilton, was born on 29 June 1997. Their daughter Rebeca was born on 9 August 2002. She was aged 14 when the family moved into East Street; she is now aged 19. She has recently left school and is now attending the University of Westminster. Their younger son, Abraham, was born on 25 June 2007. He was aged 9 when the family moved into East Street; he is now aged 14 and attends school in Southwark.
In 2000, the Claimant and his wife relocated to Spain to look for work. The Claimant worked as a construction worker and his wife was a care assistant. Their two younger children were born in Spain. All members of the family, other than Hamilton, became citizens of Spain and were issued with Spanish passports.
In 2011/2012 there was an economic crisis in Spain and the Claimant lost his job, and was unable to find other work. So in June 2012, the Claimant returned to Ecuador, his county of origin, with his two younger children. His wife remained in Spain with their older son because she was still employed. His wife and son then returned to Ecuador in November 2012 so that the family could be reunited.
The Claimant had difficulty in finding work in Ecuador. He eventually found work in a gold mine, but the work was dangerous, and he had two accidents for which he was hospitalised. He left the mine and obtained work as a security guard, but the contract ended, and he was unable to find another job. He was struggling financially as he had debts from the cost of medical treatment after his mining accidents, and he had to support his family. His wife also found it difficult to gain employment in Ecuador, as a woman with children.
The Claimant's sister, who resides in London, suggested to the Claimant that he should come to London, where he would be able to find work. She paid for his flight, as he could not afford it.
The Claimant arrived in London in early March 2016. As a Spanish citizen, the Claimant was able to exercise EU freedom of movement rights to live and work in the United Kingdom (“UK”). He hoped that his family could join him as soon as he could afford the cost of their flights. Through friends of his sister, who lives in the area, he obtained rented accommodation in Brixton, in a shared room in a flat.
From March 2016 onwards, he worked a cleaner for various companies and agencies, for low wages and uncertain hours. He sent money back to Ecuador to support his immediate family, as well as his parents and his mother-in-law.
The Claimant and his family did not want to be apart from each other, and so on 4 October 2016 the Claimant's wife and their two younger children came to London from Ecuador. The Claimant received help with the cost of the flights from a friend. They all moved into a vacant room in the Brixton flat where the Claimant was already living. Kitchen and toilet facilities were shared with the other residents of the flat. The Claimant's wife obtained work as a cleaner in October 2016.
At that time, their son Hamilton was not able to join them because he was not a Spanish citizen, but he was subsequently granted Spanish citizenship and came to London to join his family in May 2017.
When the landlord of the Brixton flat discovered that an entire family was living in one room, he evicted them. They were required to leave by the end of November 2016. At this time, the Claimant was unaware that the Council could provide assistance to homeless people, or that there was a housing register. He and his wife struggled as they could not speak or read English and were dependant upon others to translate for them.
The Claimant searched in Lambeth and Southwark for a two-bedroom flat, but the prices started at around £1,600 per month, which was more than he could afford. He also looked at renting a one-bedroom property, at a lower rent, but landlords and agents refused to let a one-bedroom flat to the entire family. Nearly all the landlords and agents asked the Claimant and his wife to provide a year's worth of payslips demonstrating full time work. This was impossible as the Claimant had only been working 7 months and his wife had only just started work. Landlords and agents also wanted up to 5 months' rent/deposit paid in advance, which the Claimant was unable to pay.
The Claimant and his family are practising Christians, and attend the New Covenant Church, in Bermondsey, Southwark. They first met the Pastor at the Church (Pastor Carlos) when they were living in Spain. Pastor Carlos assisted the Claimant to find a flat at 81A East Street SE17 2DH, and persuaded the landlord to accept only 1 month's deposit and one month's rent in advance. They moved into East Street on 21 November 2016.
East Street comprises one main room, which contains the kitchen and beds. There is also a bathroom. There is insufficient space for the family; it is uncomfortable and stressful, and there is no privacy. The children have grown out of their bunk beds; Abraham is sleeping on a sofa bed which is too small for him. The children do not have space to do activities or school/college work, and cannot have friends to visit.
– 2019
In January 2017, the Claimant applied for universal credit, and it was awarded with effect from July 2017, initially at about £751 per month. Child benefit was also paid to the family from 2017, in the sum of about £137 per month.
In early 2018, the Claimant became aware of Housing Action Southwark and Lambeth (“HASL”) which is a local housing campaign organisation, which provided the family with advice, as a result of which they applied to join the Housing Register.
Initially the Council stated that the family could not join the Housing Register because they did not meet the local connection criteria. With the assistance of HASL, the Claimant applied for a review of this decision. He was asked to supply documents in support, which took some time to gather and submit, in particular, because of a lack of co-operation by their landlord, and the Claimant's wife's employer. The Council also requested further information regarding sleeping arrangements at East Street.
On 17 April 2019, the Council sent a decision letter allocating him to Band 3 of the Scheme. However, the Council later stated that this was sent in error.
On 29 April 2019, the Council sent a revised decision letter in which it accepted that he was able to demonstrate a local connection because of his wife's employment in the borough in accordance with section 5.14 of the Scheme. It was accepted that the East Street flat was statutorily overcrowded. However, he was allocated to priority Band 4, with a priority star for employment, for...
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