Shellett Rowe v London Borough of Haringey

When deciding whether an applicant is homeless because it is unreasonable to continue occupying existing accommodation, a local authority applies a test distinct from the statutory test of suitability for accommodation it provides. Suitability provisions cannot be read directly into the reasonableness inquiry. However, a feature relevant to suitability may also be a mandatory consideration on the facts.

Statutory overcrowding is relevant but does not exhaust the reasonableness inquiry. A house occupied by several households is not, in its existing state, premises used or suitable for use as a separate dwelling for the purposes of the overcrowding standards in Part X of the Housing Act 1985. Those standards therefore do not require overcrowding to be assessed across the whole house.

The appellant lived with her two young children in one room in an unlicensed house in multiple occupation, sharing a kitchen and bathroom with other adults. The respondent decided that it was reasonable for her to remain there and, on review, treated the room as not statutorily overcrowded.

Her appeal to the County Court was dismissed. Before the second appeal, the respondent withdrew its review decision after accepting that it should have investigated whether the house was licensed. The Court of Appeal nevertheless determined the live issues relevant to the fresh decision: whether statutory overcrowding had to be assessed across the whole house, whether wider overcrowding matters required investigation, and the relationship between reasonableness under the Housing Act 1996 and suitability of accommodation.

1. The appeal was not academic despite withdrawal of the review decision. The issues could affect the respondent’s inevitable reassessment.

2. The Court held that the inquiry under section 175(3) of the Housing Act 1996, concerning whether it is reasonable to continue occupying existing accommodation, is distinct from the later suitability inquiry under sections 206 and 210. An authority is not required to import the suitability procedure or the requirements of Article 3 of the Homelessness (Suitability of Accommodation) (England) Order 2012 into the earlier inquiry. The concepts are related, however, and a feature relevant to suitability may, on the facts, also be relevant to reasonable continued occupation. The unlicensed status of a known HMO was such a feature here.

3. Assuming that Part X of the Housing Act 1985 applied, sections 325 and 326 did not require overcrowding to be assessed by reference to the whole house. The house was occupied by several households and was therefore neither used as a separate dwelling nor, in its present configuration, suitable for use as one. The Court did not decide whether Part X applied to an HMO or to the appellant’s room alone. If it did apply to the room, neither statutory standard was breached.

4. Statutory overcrowding did not exhaust the section 175(3) inquiry. Its scope was set by the applicant’s representations, matters naturally arising from them, and matters which no reasonable authority would fail to investigate. Apart from licensing, the review had adequately addressed the matters raised about the children, the other occupier and the accommodation’s physical conditions.

5. The County Court judge had gone too far in categorically excluding suitability factors from the reasonableness inquiry. That error did not otherwise vitiate the review decision. Because the respondent conceded that it had failed to investigate the unlicensed HMO, the withdrawn decision was remitted for reconsideration in light of current circumstances and this guidance.

• Court of Appeal (Civil Division): Determined the second appeal despite withdrawal of the review decision, dismissed the principal grounds, and remitted the withdrawn decision for reconsideration.
• County Court at Central London: HHJ Richard Roberts dismissed the appellant’s statutory appeal on 20 January 2022.
• London Borough of Haringey: On review dated 23 June 2021, upheld the decision that it was reasonable for the appellant to remain in her accommodation; the authority later withdrew that decision.