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

For a housing-allocation policy excluding applicants who caused statutory overcrowding by a deliberate act, “deliberate” does not require culpability, an intention to obtain housing priority, or knowledge of the statutory scheme. A voluntary decision to occupy accommodation unsuitable for the household may satisfy the policy where later statutory overcrowding is an inevitable consequence. A local authority may distinguish inevitable ageing of existing children from an uncertain future increase in household size. Extensive investigation is unnecessary where the relevant policy construction makes the applicant’s knowledge, affordability, motives and alternatives immaterial.

The claimant sought judicial review of Southwark’s decision to place his family in priority Band 3, rather than Band 1, under its housing allocation scheme. The family occupied a one-bedroom property. It was overcrowded under the scheme from the outset and became statutorily overcrowded under Part X of the Housing Act 1985 when the older child reached the relevant age.

The central issues were whether the claimant could challenge Band 1 treatment, the meaning of “deliberate act”, and the extent of any investigative duty.

1. Permission. Permission was granted. The decision of 11 October 2019 was a new substantive assessment after the claimant satisfied the residential local-connection criterion. The decision-maker had considered Band 1, so the claimant could challenge that aspect despite his earlier requests for Band 3.
2. Meaning of “deliberate act”. Paragraph 6.2 of the scheme did not require culpable conduct, an intention to obtain priority, or knowledge of the statutory provisions or scheme. It referred to a voluntary act. Entering into and continuing a tenancy of a one-bedroom flat while occupying it with a partner and two children was sufficient.
3. Causation. The authority was entitled to conclude that statutory overcrowding would inevitably arise as the children grew older. It could distinguish that situation from accommodation which initially met the household’s needs but later became overcrowded because the household increased through birth or adoption.
4. Investigation. The extent of investigation was within the housing officer’s discretion. Once the policy was lawfully construed as requiring only a voluntary act, detailed investigation into knowledge, affordability, advice, motives and alternatives was unnecessary.
5. Disposition. The judicial review claim failed and was dismissed.