Overcrowding

The legal definition of overcrowding and action that occupiers can take if their home is overcrowded.

This content applies to England

Definition of statutory overcrowding

There are two legal definitions of overcrowding – the room and the space standards.[1] A dwelling is statutorily overcrowded if either or both of these standards apply.

These standards apply to any premises let as a separate dwelling. This can include a house, a flat or even just a room if it is let separately from the rest of the building. They apply to both tenancies and licences.

Both standards define a room as 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] In one case a large kitchen was held to meet this definition.[3]

Statutory overcrowding is a criminal offence unless it falls within an exception. For example, overcrowding due to natural family growth.

The landlord commits an offence if they cause or permit the premises to be overcrowded or fails to include details of the overcrowding provisions on any rent book. An occupier commits an offence if they cause or allow accommodation to become overcrowded.

Local authorities are under a general duty to enforce the provisions. If the authority itself is committing an offence, it is possible for a private individual to take action.

The room standard

The room standard is based on the number and gender of people who must sleep in one room. The room standard is contravened in a situation where two people of the opposite sex must sleep in the same room.

The exceptions to this rule are:

  • cohabiting or married couples, who can live in the same room without causing overcrowding

  • children under the age of ten, who are completely ignored in the calculation

All living rooms and bedrooms are included in the calculation (this could include a large kitchen). The standard does not limit the number of people of the same sex who can live in the same room (but see 'the space standard').

The space standard

The space standard is based on the maximum number of people who may 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 specified in Table 1 and calculated according to the total number of rooms in the dwelling, and

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

Table 1

Number of rooms12345+
Number of people2357 1/22 per room

Table 2

Floor area of each room in a dwelling (square feet)11090 –10970 – 8950 – 69
Number of people21 1/211/2

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]

When statutory overcrowding is permitted

There are situations where overcrowding is allowed even if more people live in the house than is acceptable under the standards.

Permitted overcrowding due to natural growth

There is no offence if the standards are breached because a child of the household has reached one of the specified ages (one year or ten years) and the household has not changed in any other way.[6] The birth of a child also does not count, as children under one are disregarded. In order for this exception to apply, the occupier must have made an application to the council for alternative accommodation. In addition to this, if there was an opportunity for the occupier to require one of the household to leave and this was not done, an offence would be committed.

Temporary overcrowding

There is no offence 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, but 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 the local authority's initiative. A licence is granted only in exceptional circumstances, which can include, for example, seasonal increases in population.

Overcrowding when applying for social housing

Many local authorities use a bedroom standard when assessing whether an applicant is overcrowded for the purposes of determining whether they have a reasonable preference under their allocation schemes for social housing.

The Allocations Code of Guidance recommends that the following 'bedroom standard' is adopted as a minimum measure of overcrowding, that is a one bedroom for:[9]

  • 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 or a measure of statutory overcrowding. Applicants may be entitled to reasonable preference due to overcrowding even if they are not statutorily overcrowded.

Action occupiers can take to deal with overcrowding

The action an occupier can take depends on the type of accommodation they live in.

Private sector tenants

Private sector tenants can make a complaint to the local authority's environmental health department and request that it carries out an inspection of the accommodation.

Under the Housing Health and Safety Rating System (HHSRS), the local authority has a duty to inspect in certain circumstances. 'Space and crowding' is a hazard under the HHSRS and the definition of this hazard is broader than the overcrowding legislation.

The local authority has to take action if it considers the hazard to be a category one hazard. This could involve enforcement action against the landlord.

Local authority tenants

Local authority tenants can apply to the local authority for a transfer. When allocating accommodation, a local authority must give preference to people living in overcrowded conditions.[10]

Local authority tenants can make a complaint to the local authority's environmental health department and request that it carries out an inspection of the accommodation. In some circumstances the local authority has a duty to carry out an inspection, but the local authority cannot take enforcement action against itself.

Homelessness

A person living in overcrowded accommodation may be able to make a homelessness application if it is not reasonable for them to remain in that accommodation.

Action by the local authority

A local authority can:

  • licence the overcrowding

  • prosecute the person responsible for the overcrowding

  • carry out an inspection of the premises and serve an abatement notice

  • take action under the HHSRS. 'Space and crowding' is one of the hazards used in the HHSRS, and the definition of this hazard is broader than the overcrowding legislation

Local authorities have special powers to deal with overcrowding in houses in multiple occupation.

Landlord possession action because of overcrowding

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

Regulated tenants lose Rent Act protection if the property is illegally overcrowded.[11] There is no similar provision in the Housing Act, so the landlord would have to rely on any clause in the contract prohibiting overcrowding.

Local authority landlords also have the power to evict tenants where the property is illegally overcrowded and the tenants have not abated the overcrowding within 14 days.[12] Eviction must be applied for within three months of the notice expiring if it has not been complied with.

The court must order possession between 14 and 28 days of the hearing.

Last updated: 23 March 2021

Footnotes

  • [1]

    ss.324-326 Housing Act 1985.

  • [2]

    ss.325(2)(b) and 326(2)(b) Housing Act 1985.

  • [3]

    Zaitzeff v Olmi (1952) 102 LJ 416, CC.

  • [4]

    s.326(3) Housing Act 1985.

  • [5]

    s.337 Housing Act 1985.

  • [6]

    s.328 Housing Act 1985.

  • [7]

    s.329 Housing Act 1985.

  • [8]

    s.330 Housing Act 1985.

  • [9]

    para 4.8 Allocation of accommodation: Guidance for local housing authorities in England, DCLG, June 2012.

  • [10]

    s.167(2)(c) Housing Act 1996, as amended by s.16(3) Homelessness Act 2002.

  • [11]

    s.101 Rent Act 1977.

  • [12]

    s.339 Housing Act 1985.