Flores, R (on the application of) v London Borough of Southwark

A local authority must apply its published housing allocation scheme when assigning applicants to priority bands. The meaning of such a scheme is determined by the court, using a practical and common-sense approach.

Where priority depends on whether an applicant caused statutory overcrowding by a deliberate act, the authority must identify the effective cause of the overcrowding and decide whether that cause was an act which the applicant intended to perform. Deliberateness does not require culpability or advance planning. However, reasonably taking the best affordable accommodation does not cause statutory overcrowding which arises years later through the inevitable growth of existing children.

The appellant lived with his partner and two children in a one-bedroom flat. The accommodation became statutorily overcrowded under Housing Act 1985 standards as the children grew older. Southwark Council placed him in Band 3 of its Housing Allocation Scheme. It refused Band 1 priority because it considered that he had caused the overcrowding by the deliberate act of moving his family into the flat.

Martin Spencer J dismissed the appellant’s judicial review claim in [2020] EWHC 1279 (Admin). The appellant appealed. The central issue was whether he had “caused this statutory overcrowding by a deliberate act” within paragraph 6.2 of the Scheme.

1. The appeal was allowed. The appellant was entitled to Band 1 priority, retrospectively from 11 October 2019. The council’s contrary decision resulted from an erroneous application of its Housing Allocation Scheme.

2. Section 166A(14) of the Housing Act 1996 requires a local authority to comply with its allocation scheme both when selecting a tenant for a particular property and when deciding an applicant’s position on the waiting list. Although authorities possess broad discretion when formulating schemes, a scheme once adopted must be followed.

3. The meaning of an allocation scheme is a question for the court. Such schemes must be interpreted practically and according to common sense, with sensible flexibility. “Deliberate” bears its ordinary meaning: an act is deliberate where the person intends to do it. The word does not require culpability, planning or an intention to improve the applicant’s position under the scheme.

4. Paragraph 6.2 required the council first to identify the cause of the statutory overcrowding and then to ask whether that cause was a deliberate act by the applicant. The council could rely upon information supplied by the applicant and was not obliged to undertake extensive investigations.

5. The effective cause of this overcrowding was the inevitable growth of the appellant’s children, not his decision five years earlier to take the best accommodation that he could afford. The flat had been reasonable for the family to occupy when taken. The children’s growth could not sensibly be characterised as the appellant’s deliberate act. The council’s conclusion exceeded the flexibility available when implementing the Scheme.

6. The suggested distinction between children growing older and an increase in the household through birth or adoption was misconceived. Band 3 was also unavailable because it expressly covered applicants who were not statutorily overcrowded. On the agreed facts, the appellant belonged either in Band 1 or Band 4.

7. The court made no declaration concerning a priority star because that relief had not formed part of the judicial review claim. The council was left to reconsider the matter in light of the judgment.

1. Court of Appeal (Civil Division): The appeal was allowed in [2020] EWCA Civ 1697. The court declared that the appellant was entitled to Band 1 priority with effect from 11 October 2019.
2. High Court, Administrative Court: Martin Spencer J dismissed the judicial review claim in [2020] EWHC 1279 (Admin), holding that voluntarily taking the one-bedroom tenancy was a deliberate act within the Scheme.