Shellett Rowe v London Borough of Haringey
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stuart-Smith,Lord Justice Nugee,Lord Justice Arnold |
| Judgment Date | 21 October 2022 |
| Neutral Citation | [2022] EWCA Civ 1370 |
| Docket Number | Case No: CA-2022-000181 |
| Court | Court of Appeal (Civil Division) |
| Year | 2022 |
[2022] EWCA Civ 1370
Lord Justice Arnold
Lord Justice Stuart-Smith
and
Lord Justice Nugee
Case No: CA-2022-000181
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE COUNTY COURT AT CENTRAL LONDON
HIS HONOUR JUDGE RICHARD ROBERTS
H40CL195
Royal Courts of Justice
Strand, London, WC2A 2LL
Toby Vanhegan, Justin Bates and Siân McGibbon (instructed by Lawstop) for the Appellant
Nicholas Grundy QC and Jennifer Moate (instructed by London Borough of Haringey Legal Services) for the Respondent
Hearing date: 5 July 2022
This judgment was handed down remotely at 10.30am on 21 October 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Approved Judgment
Introduction
This is a second appeal, brought with permission granted by Dingemans LJ, arising out of the Respondent Council's refusal of the Appellant's application for housing assistance. As will appear in more detail below, the Appellant appeals against the order of HHJ Roberts dated 20 January 2022 by which he dismissed her appeal against the Respondent's review decision dated 23 June 2021.
The three grounds of appeal, which I set out at [13] below, raise two main questions. First, on the assumption that Part X of the Housing Act 1985 [“HA 85”] applies when deciding whether it was reasonable for the Appellant to continue her occupation of her existing accommodation, should the question of overcrowding have been decided by reference to the whole of the property in which she was living and of which her accommodation formed part? Second, what (if anything) is the relationship between the concept of reasonableness for the purposes of deciding if a person is homeless and the concept of suitability for the purposes of a local authority discharging its duty to provide suitable accommodation to a homeless person?
The Factual Background
The Appellant lives with her two young children in a multi-occupancy house in Haringey [“the House”]. She and her children have exclusive use of one room [“the Appellant's Accommodation”] and shared use of communal facilities, namely a kitchen and a bathroom [“the Communal Facilities”]. The Communal Facilities are shared with four other adults. The House is a House in Multiple Occupation [“HMO”] within the meaning of section 254 of the Housing Act 2004 [“HA 04”] and is not licensed.
In March 2021 the Appellant applied to the Respondent for housing assistance on the basis that she was homeless because it was not reasonable for her to continue her occupation of the House. Her stated reason for contacting the Respondent was that she was overcrowded in her current home. In the course of its enquiries the Respondent recorded in its case notes the Appellant's evidence that she did not feel comfortable with one of the tenants living in the House because he reported to the landlord that her children “keep running around and going into the kitchen.” The notes recorded that the Appellant felt “safe but not comfortable”.
The Respondent rejected the Appellant's application on 31 March 2021 on the basis that she was not homeless because she had accommodation which it was reasonable for her to continue to occupy, this being the relevant criterion laid down by s. 175(3) of the Housing Act 1996 [“HA 96”]. The Respondent recorded the representation made by the Appellant and others that it was unreasonable for her to occupy the Accommodation because she occupied a room with her two sons. The Respondent's reasons for rejecting this representation included that:
i) The Appellant was occupying a room in a shared house which was of suitable size for her and her two boys. She was not overcrowded under the space standard set out in the HA85. “The reason for this is because both your children are under the age of 10 and therefore they can share a room with you, as you are a single adult household”; and
ii) The Appellant had advised that she did not feel comfortable because “one … tenant at the property reported to the landlord that [her] children keep running around. [She] confirmed that, although [she felt] uncomfortable, [she did] not feel at risk in [her] home”.
At the Appellant's request, the Respondent reviewed its decision. The submissions made on the Appellant's behalf by her solicitors were that (a) her current accommodation was “unsuitable for her needs and unreasonable for her and her children to occupy” for the reasons they then set out and (b) the House was in a state of disrepair. The reasons did not refer to the fact of the House being an HMO (licensed or otherwise) and advanced no specific case on overcrowding save that the Appellant felt her children were uncomfortable spending any long period in the House and that they did not want to be in the bedroom because of the lack of space which made them unhappy.
On 23 June 2021, the Respondent upheld its decision. The information available to the reviewing officer included photographs of the property, one of which showed the size and layout of the Appellant's Accommodation. Under the sub-heading “Reasonableness for you to continue to occupy accommodation at [the House],” the Respondent dealt with the condition of the property, its size, and the presence of other residents. In relation to the size of the Appellant's Accommodation the reviewer said:
“11. You currently occupy a room in a shared house which is of suitable size for you and your … boys. You are not overcrowded it is reasonable for you and household occupy under the space standards set out in the Housing Act 1985 [sic]. The reason for this is because both your children are under the age of 10 and therefore they can share a room with you, as you are a single adult household.
12. Given the above, I am satisfied that the accommodation is reasonable for you to continue to occupy in terms of its size. This is especially the case as there is no evidence that the size of the accommodation has had any significant impact on you and your children.”
Turning to the other residents, the reviewer recorded in paragraph 13 of the decision the Appellant's evidence that she did not feel comfortable (because once a tenant had reported to the landlord that the children keep running around) but did not feel at risk. The Appellant was able to carry out all day-to-day activities and was able to take the children to play in the local park. Given the features identified in the review decision, the reviewer was satisfied that it was reasonable for the Appellant to continue to occupy her Accommodation.
The Appellant appealed to the County Court relying on 7 grounds of appeal. Grounds 2, 3 and 4 as originally advanced challenged the rationality and lawfulness of the Respondent's consideration of a number of issues including overcrowding. As presented in the Skeleton Argument for the hearing the grounds were elided to some extent. For present purposes it is sufficient to record the Appellant's submissions that:
i) The conclusion that the House is not overcrowded was erroneous as a matter of law. The Respondent had failed to make enquiries to determine how many other households or individuals occupied the House; and without making those enquiries it was not possible to consider whether the House as a whole was overcrowded by reference to either the space standard or the room standard set out in sections 325–326 of HA 85;
ii) The Respondent had failed to consider both the space standard and the room standard. It was the Appellant's case that the Respondent had given no consideration to the room standard when assessing whether the Appellant's Accommodation was overcrowded;
iii) The Respondent had failed to consider that the House is an unlicensed HMO as defined. This was alleged to be an enquiry that no reasonable authority could have failed to regard as necessary;
iv) The Respondent failed to consider whether it was reasonable that the Appellant and her two young children should share kitchen and bathroom facilities with other residents who were not part of their household, not known to them and who (it was asserted) make the children feel uncomfortable.
Ground 7 asserted a failure to make enquiries that adds little or nothing to the allegations advanced under Grounds 2, 3 and 4. It is not necessary to refer to the other grounds in any detail.
The Respondent submitted that the word “dwelling” in section 325(1) of HA 85 referred to the Appellant's Accommodation and not to the House as a whole. Whether other occupants of the house were overcrowded in their accommodation was submitted to be irrelevant to the Appellant. It was plain from the evidence that the reviewing officer had properly had regard to the photograph which showed that the Appellant's Accommodation was 110 sq. ft. or more and that occupation by the Appellant and her two young sons was permitted both in accordance with the room standard and the space standard. It also submitted that it was plain from the terms of the review decision that the reviewing officer had taken into account the lack of detrimental impact on the Appellant and her children.
On 20 January 2022, HHJ Roberts dismissed the Appellant's appeal. In summary on the issues that are relevant to the present appeal he held that:
i) By reason of section 3 of the Housing Act 1988 [“HA 88”], the Appellant's Accommodation was deemed to be a dwelling-house let on an assured tenancy. That answered the question of what constituted a dwelling for the purposes of s. 325 HA 85: the Judge held that it would be illogical for the Appellant's tenancy to be a dwelling house for the purposes of HA 88 but not for the purposes of HA 85. He therefore held that the word “dwelling” in section 325 referred to and meant the Appellant's Accommodation.
ii) The reviewing officer...
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