Overcrowding

There are two legal definitions of overcrowding. These are:[1]

• the room standard

• the space standard

A dwelling is statutorily overcrowded if either or both standards apply.

The room and space standards apply to any premises let as a separate dwelling. This can include a house, a flat or a room let separately from the rest of the building. The standards apply to tenancies, licences and owner occupied premises.

Local authorities often use a different standard to assess whether someone applying for social housing is overcrowded.

Definition of a bedroom

A room is available as sleeping accommodation if it is of a type normally used in the locality either as a living room or as a bedroom.[2] This could include box rooms, dining rooms, and rooms used as home offices. In one case a large kitchen was held to meet this definition.[3]

Bathrooms, toilets and corridors are not treated as bedrooms.

Overcrowding offences

Statutory overcrowding is a criminal offence unless an exception applies.

An occupier commits an offence if they cause or allow accommodation to become overcrowded.

A landlord commits an offence if they cause or permit the premises to be overcrowded or fail to include details of the overcrowding provisions on any rent book.

Statutory overcrowding is not a criminal offence if it is:

• due to natural family growth

• temporary

• licenced by a local authority

Local authorities have a general duty to enforce the overcrowding provisions. A person could take action against a local authority landlord if it causes overcrowding.

The room standard is based on the number and sex of people who must sleep in one room.

The room standard is contravened if two people of the opposite sex must sleep in the same room. There is an exception for cohabiting, married or civil partnered couples, who can live in the same room without causing overcrowding. Children under the age of ten are completely ignored in the calculation

All living rooms and bedrooms are included in the calculation.

The room standard does not limit the number of people of the same sex who can live in the same room. A household might also be overcrowded under the space standard if too many people must sleep in the same room.

The space standard is based on the maximum number of people who can sleep in a dwelling of a particular size.

The permitted number of people depends on the size of the room, the number of living rooms and bedrooms in the dwelling, and the age of the occupants.

The permitted number is whichever is the less of:[4]

• the number of people specified in Table 1 according to the total number of rooms in the dwelling

• the total number of people in the dwelling calculated according to the floor area of each room as set out in Table 2

Table 1

Table 2

For both methods:

• children under one year old are ignored

• children under ten years old but not under one count as a half

• rooms under 50 square feet are ignored

• a room is counted if it is either a living room or a bedroom

There is no guidance about how a room should be measured. Local authorities have the power to enter premises to take measurements on giving 24 hours' notice.[5]

Example of how the space standard applies

A household consists of an adult couple, two teenage boys and a girl aged nine. They live in a two bedroom flat with a living room. The living room and one of the bedrooms are both 115 square feet. The smaller bedroom is only 60 square feet.

The household is not statutorily overcrowded. The girl can sleep in the smaller bedroom. She only counts as half a person.

When the girl turns 10 they would become overcrowded. They now count as five people. The size of the smaller bedroom means only 4.5 people should live there.

Overcrowding is allowed in some situations, even if more people live in the house than is acceptable under the room or space standards. No criminal offence is committed.

Permitted overcrowding due to natural growth

There is no offence if the standards are breached because a child of the household has turned either one or ten years old. The household must not have changed in any other way.[6]

The occupier must have made an application to the local authority for alternative accommodation. This might be through:

• a homeless application

• applying to join the housing register

• applying for a transfer to a larger property

The occupier might still have committed an offence if they failed to ask a household member to leave where this was an option.

The birth of a child also does not count, as children under one are disregarded.

Temporary overcrowding

No offence is committed if the reason for overcrowding is that one of the people sleeping in the accommodation is a member of the occupier's family who is there temporarily.[7]

Temporarily is not defined in the legislation. A child away at boarding school is considered to be living permanently in the accommodation.

Licensed overcrowding

No offence is committed if the local authority gives permission for the overcrowding.[8] The permission must be applied for by the occupier and not on the landlord or local authority's initiative.

Local authorities normally only issue a licence in exceptional circumstances. For example, where there seasonal increases in population due to employment.

Someone living in overcrowded housing might be able to:

• apply for social housing

• apply as homeless

Taking either of these steps would mean the person had not committed an offence if overcrowding was due to family growth.

Applying for social housing

Someone living in overcrowded accommodation could apply to join the housing register. An existing local authority or housing association tenant could apply to the local authority for a transfer.

When allocating accommodation, a local authority must give preference to people living in overcrowded conditions.[9]

Many local authorities use a different bedroom standard when assessing whether someone applying for social housing has a reasonable preference because they are overcrowded. The Allocations Code of Guidance recommends that local authorities allow one bedroom for:[10]

• each adult couple

• any other adult aged 21 or over

• two adolescents of the same sex aged 10 to 20

• two children regardless of sex under the age of 10

This is not a legal definition of overcrowding. Local authorities might use their own method of measuring overcrowding as part of their allocations policy.

A household might be entitled to reasonable preference due to overcrowding even if they are not statutorily overcrowded.

Applying as homeless

A person living in overcrowded accommodation could make a homeless application to the local authority. Homelessness can include where it is not not reasonable to continue to occupy the accommodation. This could include if the property was very overcrowded.

Find out more about the homeless application process.

The local authority must consider overcrowding even if is not statutory overcrowding.[11] When assessing premises for statutory overcrowding the authority must consider both the room standard and space standard.[12] It might use the same bedroom standard recommended by the Allocations Code of Guidance.

Tenants should seek advice before leaving accommodation. A local authority could find that a tenant who leaves is intentionally homeless if the accommodation was still reasonable to occupy.

Find out more about when accommodation is not reasonable to continue to occupy

A local authority could:

• licence the overcrowding

• prosecute the person responsible for the overcrowding

• inspect the property and serve an abatement notice

• inspect and take action under the Housing Health and Safety Rating system

These steps might involve taking action against the occupier or the landlord.

Abatement notices

An abatement notice is served by a local authority. It tells a person responsible for a statutory overcrowding to take the steps necessary to stop it. An abatement notice remains in force until it has been complied with.

A local authority can take court action to enforce an abatement notice. It can sometimes bring possession proceedings, even where it is not the landlord.

Find out more about local authority abatement notices.

Inspections under the Housing Health and Safety Rating System

Private tenants could ask the local authority's environmental health department to inspect the property under the Housing Health and Safety Rating System (HHSRS). This is not usually an option for local authority tenants. The environmental health department is part of the local authority and cannot take legal action against itself.

HHSRS is a framework used by local authorities to assess housing conditions. There is a list of 29 prescribed hazards including space and crowding. The definition of this hazard is broader than the statutory definition of overcrowding.

Hazards are divided into category 1 and 2. Category 1 hazards are the most serious and a local authority must take action. This could involve enforcement action against the landlord if they are responsible for the overcrowding. In some cases the local authority might issue a prohibition order stating a maximum number of people who can live in the property.

Find out more about local authority HHSRS enforcement action.

A landlord might be able to take possession action if a property is overcrowded.

Regulated tenants lose their status under the Rent Act at any time where the occupier has committed an overcrowding offence.[13] The tenant would still be covered by the Protection from Eviction Act. The landlord would need to apply to court for a possession order and a warrant for bailiffs to evict.

The landlord of an assured or assured shorthold tenant might bring possession proceedings on the basis of breach of tenancy if there is a clause in the contract prohibiting overcrowding. The landlord of an assured shorthold tenant might serve a section 21 notice.

There is a ground for possession for secure tenants (ground 9) where the property is statutorily overcrowded and the occupier is guilty of an offence. The landlord must secure suitable alternative accommodation for the tenant.

Possession action by a local authority

A local authority has the power to evict tenants of another landlord where the property is illegally overcrowded.

The local authority must first serve an abatement notice. It can apply to the County Court for a possession order if the occupiers have not abated the overcrowding within 14 days of the notice being served.[14] The local authority must apply to court within three months of the notice expiring if it has not been complied with.

The court must order make a possession order. The order requires possession to be given to the landlord between 14 and 28 days of the hearing. The local authority can recover its costs from the landlord.