Harouki v Royal Borough of Kensington & Chelsea

Statutory overcrowding, even where continued occupation constitutes an offence, does not of itself make it unreasonable for an applicant to remain in the accommodation or automatically render the applicant homeless. The decision-maker must determine reasonableness under section 177(2) of the Housing Act 1996 by considering the applicant’s circumstances together with the general housing conditions in the authority’s district.

The statutory scheme requires a coherent approach to both reasonableness of continued occupation and suitability of accommodation. Overcrowding may be a material factor, but it is not necessarily decisive. A homelessness code of guidance cannot override the statute, but guidance stating that statutory overcrowding alone may be insufficient was consistent with the statutory scheme.

The appellant occupied a three-bedroom flat with her husband and five children. The flat contravened the statutory space standard, so that its continued occupation involved an offence under Part 10 of the Housing Act 1985. The family also relied on overcrowding and the appellant’s health difficulties.

The respondent’s Housing Review Officer decided that, having regard to local housing conditions and the family’s circumstances, it remained reasonable for them to occupy the flat. Judge Knight QC, sitting in the Central London County Court, dismissed the appellant’s statutory appeal. The appellant appealed to the Court of Appeal.

The central issue was whether it could lawfully be reasonable to continue occupying accommodation when doing so involved statutory overcrowding and a continuing criminal offence.

1. Appeal dismissed. Ward LJ, with whom Thomas and Richards LJJ agreed, held that the Housing Review Officer had made no error of law and had not acted irrationally in deciding that the appellant was not homeless.

2. The appellant’s formulation of the question was too general. The relevant question was whether, having regard to the general housing circumstances in the authority’s district, including overcrowding, it was reasonable for the appellant to continue occupying the flat. Section 177(2) of the Housing Act 1996 required that wider inquiry. The fact that continued occupation constituted an offence under section 327 of the Housing Act 1985 was material but not conclusive.

3. The court construed the homelessness and overcrowding provisions as a coherent scheme. The assessment of whether accommodation is reasonable to continue to occupy under section 175(3) should correspond with the assessment of suitability under section 210. Since accommodation may be suitable notwithstanding overcrowding, statutory overcrowding cannot necessarily make continued occupation unreasonable. A contrary construction would create a circular and unworkable obligation to rehouse applicants in accommodation which they could immediately challenge as unreasonable to occupy.

4. The wider scheme supported that conclusion. Overcrowding attracts reasonable preference in allocations under Part 6, while Part 10 provides enforcement powers for overcrowding. Those provisions would be undermined if every occupier of statutorily overcrowded accommodation were automatically homeless under Part 7. The code of guidance was not authoritative where inconsistent with statute, but its statement that statutory overcrowding alone may be insufficient to determine reasonableness correctly reflected the law. The Review Officer was therefore entitled to take account of prevailing local overcrowding, the family’s relative housing need and their medical circumstances, and to conclude that the flat remained reasonable to occupy pending rehousing.

• Court of Appeal (Civil Division): dismissed the appellant’s appeal: [2007] EWCA Civ 1000.
• Central London County Court: Judge Knight QC dismissed the appellant’s statutory appeal from the respondent’s homelessness review decision.