MILTON LAINES ROMAN (R on the application of) v LONDON BOROUGH OF SOUTHWARK

In a housing allocation scheme, statutory overcrowding is caused by a “deliberate act” only where the applicant intended the relevant act and had a real choice between viable alternatives, voluntarily selecting the overcrowded accommodation. The decision-maker must identify the effective cause of the statutory overcrowding and assess the applicant’s circumstances rationally and fairly. It is irrational to treat earlier migration decisions, or a later failure to secure alternative accommodation, as the cause without proper analysis. An unpublished officers’ guidance document need not be published where it merely gives non-exhaustive examples and does not add criteria to the published scheme.

The claimant, his wife and children lived in a one-room studio flat which the Council accepted was statutorily overcrowded under Part X of the Housing Act 1985. The Council placed him in Band 3 rather than Band 1 under its allocation scheme, finding that the overcrowding resulted from a deliberate act.

The claimant challenged the decision on interpretation and irrationality grounds, contending that he had no viable affordable alternative when the family moved into the flat. He also challenged the publication of the Council’s internal overcrowding guidance and relied on Articles 8 and 14 of the ECHR.

1. Outcome. The claim for judicial review was allowed on Grounds 1(a) and 1(b). Permission was granted on Ground 2, but that ground failed. Permission was refused on Ground 3.
2. Meaning of deliberate act. Applying R (Flores) v Southwark LBC and the homelessness authorities, the proper question was whether the applicant intended the relevant act in the sense of having a real choice between two or more viable options and voluntarily electing to act. The test did not require culpability or an intention to obtain housing priority. The Council’s approach was capable of producing perverse consequences by encouraging applicants who could afford only statutorily overcrowded accommodation to seek homelessness assistance instead.
3. Causation and rationality. The Council had to identify the cause of the statutory overcrowding and exercise its judgment rationally. It was irrational to rely on the claimant’s decisions to leave Spain and Ecuador, which were not the proximate cause of the overcrowding, and to disregard the reasons for those decisions. It was also irrational to treat the family’s reunion, the move into East Street, or alleged failures to find alternative accommodation as deliberate choices without fairly considering affordability, the short notice of eviction, lack of English, lack of advice, local support, landlords’ requirements and the family’s circumstances.
4. The Council’s affordability assessment was flawed because it understated the housing shortfall and omitted increased council tax, utilities and transport costs. It should not have rejected the claimant’s assessment without first conducting a full affordability assessment. It would also be irrational to treat a full-time undergraduate student as having the earning capacity of a non-student adult.
5. Publication. The published scheme sufficiently stated the applicable criteria. The unpublished guidance merely assisted officers, gave non-exhaustive examples and did not introduce different criteria. It therefore did not require publication.
6. The flawed reasoning was material. The court could not be satisfied under section 31(2A) of the Senior Courts Act 1981 that the outcome would inevitably have been substantially the same.