Elrify v City of Westminster Council

For statutory homelessness, ownership or another interest in accommodation does not by itself prevent a person being homeless. The accommodation must also be reasonable to continue to occupy. General housing conditions may be considered, but statutory overcrowding is a relevant factor rather than automatically decisive. When overcrowding is assessed under the space standard in the Housing Act 1985, both Table I and Table II must be applied and the lesser permitted number used. A central error in that calculation materially flaws the review decision and requires reconsideration; an inspection or wider housing context does not cure it.

Mr Elrify, his wife and their seven children occupied a small, three-bedroom maisonette which Mr Elrify owned. He applied to the City of Westminster Council under Part 7 of the Housing Act 1996, contending that the accommodation was overcrowded and unreasonable to continue occupying. The council rejected the application, and its review under section 202 maintained that the family exceeded the statutory overcrowding standard by only one person.

His appeal under section 204 was rejected by the Mayor's & City of London County Court. The Court of Appeal considered whether the council had lawfully calculated statutory overcrowding, whether the error was material, and whether permission should be granted for a second appeal.

Disposition and permission. The renewed application for an adjournment was refused. The court granted a short extension of time and permission to appeal only on the statutory-overcrowding ground. The other proposed grounds had no reasonable prospect of success. Although this was technically a second appeal, rule 52.13 of the Civil Procedure Rules remained applicable. Since the original review decision was administrative rather than judicial, the court could adopt a somewhat more relaxed approach where the proposed appeal had clear merit.

1. Under section 175(3) of the Housing Act 1996, the central question was whether it was reasonable for the family to continue occupying the accommodation. Section 177(2) permitted the council to consider general housing circumstances in the district. Section 210 required regard to the overcrowding provisions of the Housing Act 1985. The guidance indicated that statutory overcrowding might be contributory without being decisive by itself.
2. Section 326 of the Housing Act 1985 required both Table I and Table II to be applied, with the lesser permitted number adopted. It was not sufficient to stop after Table I showed that the dwelling was overcrowded.
3. The council had treated the statutory overcrowding as only one person. Applying Table II to the available measurements produced a permitted number of five and a half against an actual number of eight, meaning an excess of two and a half persons. That difference was material because the calculation was a central basis of the review decision. The inspection of the premises and consideration of general housing conditions did not cure the legal error.
4. The appeal was therefore allowed. The council was directed to reconsider the review decision, using up-to-date circumstances. Lady Justice Smith agreed and clarified that allowing the appeal did not mean that rehousing would necessarily follow.

1. Court of Appeal (Civil Division) — Allowed the appeal and directed the respondent council to reconsider the review decision on up-to-date circumstances: [2007] EWCA Civ 332.
2. Mayor's & City of London County Court — His Honour Judge Simpson rejected the appellant's appeal under section 204 of the Housing Act 1996.