Accommodation becoming overcrowded because of children growing older is not a 'deliberate act'.
Homelessness case law summary
Summary
A family who moved into a one bedroom flat and later become statutorily overcrowded did not carry out a deliberate act. This meant they met the criteria for Band 1 priority on the housing register in Southwark.
This case related to an allocation scheme, rather than a homeless application, but it provides useful insight into the question of whether children growing older could be considered a 'deliberate act'.
Background
Mr Flores, his partner and two children under ten moved into a private rented flat in 2014. The flat was all they could afford. It had one bedroom and an open plan living room and kitchen.
The family became statutorily overcrowded when the oldest child turned ten in 2018. Under section 326 Housing Act 1985, the maximum capacity for a two roomed flat is three people. An adult counts as one person. A child over ten years old counts as one person, while a child between one and ten years old counts as half a person.
Mr Flores applied to join the London Borough of Southwark's housing register. Southwark accepted the family was overcrowded.
Lettings policy
Southwark's letting policy said that statutory overcrowding cases would be given the highest priority, band 1. The policy stated that band 1 priority was for 'applicants who are statutorily overcrowded as defined by Part 10 of the Housing Act 1985 and have not caused this statutory overcrowding by a deliberate act'.
Southwark awarded the family band 4 priority, rather than band 1, on the basis that the overcrowding was a 'deliberate act'.
The court's decision
The Court of Appeal held that Southwark had not applied its allocation scheme correctly.
The court stated that the Housing Act 1996 required a local authority to have an allocation scheme and to follow the scheme when deciding:
which property to allocate
where to place an applicant on the waiting list
The court found that the reviewing officer had accepted the flat was reasonable for the Flores family to occupy when they moved in. Mr Flores had not taken the accommodation with the intention of improving his position on the housing register.
The judge stated:
"The accommodation which the appellant reasonably decided to take only became statutorily overcrowded as a result of his children growing, as they inevitably would. That, in my judgment, was the cause of the overcrowding in this case.
It cannot on any sensible understanding of paragraph 6.2 of the Scheme be regarded as a deliberate act on the part of the appellant."
The Court of Appeal declared that Mr Flores was entitled to be placed in band 1 of the allocation scheme.
Comment
While this case considered an allocations scheme, rather than a homelessness application, the court considered whether overcrowding caused by children growing older could be a deliberate act.
The court's approach to this question could assist advisers and local authority homelessness officers considering cases of overcrowding and intentional homelessness.