Housing eflash: Rowe v. Haringey LBC [2022] EWCA Civ 1370
4-5 Housing eflash
Rowe v. Haringey LBC
[2022] EWCA Civ 1370
Arnold, Stuart-Smith, and Nugee LJJ
21 October, 2022
The Court of Appeal held that the overcrowding provisions in the Part X Housing Act 1985 do not apply to the whole of a HMO, and it is doubtful whether they apply to an occupant’s separate accommodation within a HMO. On the relationship between ‘suitability’ and ‘reasonableness’ of continued occupation, the Court held that the concepts are different but ‘overlap’ in that factors which are relevant to one may also be relevant to the other depending on the context.
Toby Vanhegan and Siân McGibbon appeared for the appellant in the Court of Appeal. Siân also appeared for her in the county court appeal.
The appellant lived with her two young children in single room in a HMO. They shared a kitchen and bathroom with four other adults who they did not know. She applied to the respondent for homelessness assistance on the basis that it was not reasonable for her to continue to occupy the accommodation. She complained that she was overcrowded and one of the tenants had complained about the children running around and going into the kitchen.
The respondent refused assistance on the basis that the accommodation was reasonable to continue to occupy. They decided that she was not overcrowded applying Part X Housing Act 1985 to the room (both children were under the age of ten and so each counted as a ‘half’ for the purpose of assessment of overcrowding). That decision was upheld on review.
She appealed to the county court on a number of grounds, including:
(i) That overcrowding should have been assessed by reference to the whole HMO and not just the appellant’s room;
(ii) That the respondent should have taken into account the respects in which the property was unsuitable as relevant (albeit not determinative) considerations. In particular the appellant relied on the fact that the property appeared to be an unlicensed HMO and the detrimental impact of the shared accommodation on the development of the children, by analogy with the six-week time limit on accommodation of households with children in B&B accommodation set out in the Homelessness (Suitability of Accommodation) (England) Order 2003;
(iii) That the respondent should have enquired whether the HMO was licensed.
HHJ Roberts dismissed the first appeal, following which Dingemans LJ granted the appellant permission to bring a second appeal on three grounds. First, overcrowding should have been assessed by reference to the HMO as a whole, not just the room. Secondly, the respondent had treated the statutory overcrowding test in Part X Housing Act 1985 as definitive and
had not considered whether the appellant might be overcrowded even if not statutorily overcrowded. Thirdly, the respondent and the Judge had erred by excluding suitability issues from the analysis of whether the accommodation was reasonable to continue to occupy.
At the time permission was granted, the respondent was ordered to confirm whether the house was licensed, and the evidence confirmed that it was not. The respondent subsequently accepted that it should have made enquiries as to whether the HMO was licensed, and withdrew the review decision. On this basis the respondent argued that the appeal was academic.
At the start of the hearing, the Court accepted the appellant’s argument that the appeal was not academic despite the withdrawal of the review, including because the respondent had not yet made any fresh review decision.
On ground 1, the Court rejected the appellant’s argument that the overcrowding standards in Part X Housing Act 1985 should be applied to the whole of the HMO when considering whether accommodation within a HMO is reasonable for a household to continue to occupy. After the hearing, the Court requested that the parties make submissions on the relationship between Part X Housing Act 1985, and the HMO licensing regime in Housing Act 2004. At the hearing, the respondent argued that the Housing Act 1985 applied only to the appellant’s room, whereas in written submissions filed after the hearing the respondent’s case was that Part X Housing Act 1985 did not apply at all to a HMO and Housing Act 2004
applied exclusively. The judgment described the respondent’s shift in position as "problematic" and which left the Court in the "less than ideal position" of being unable to form a concluded view as to whether the Part X Housing Act 1985 applied to HMOs at all, or whether they were exclusively governed by the Housing Act 2004 (at [68], [93]). However, the Court expressed a provisional obiter view, that the Housing Act 2004 applied exclusively to HMOs, and Part X Housing Act 1985 applied to premises that are separate dwellings (at [67], [103]).
Ground 2 would have been dismissed but for the fact that the respondent did not take account of the fact that the accommodation was an unlicensed HMO (at [83-84]). Similarly, ground 3 would have been dismissed but for the fact that the respondent did not take account of the fact that the accommodation was an unlicensed HMO when considering whether it was reasonable to continue to occupy (at [87]). The Court accepted that the Judge went too far in excluding suitability requirements and standards from the reasonableness consideration; the two concepts are different but related, and depending upon the facts of the case may ‘overlap’ so that factors relevant to one may be relevant to the other (at [89]). However, while accepting that living in shared accommodation ‘can have a detrimental impact particularly on children’, the respondent’s conclusion that this was not such a case was one which it was entitled to reach (at [88]).
The appellant is seeking permission to appeal to the Supreme Court on the question of whether and how the overcrowding provisions in Part X
Housing Act 1985 apply to a HMO, whether the provisions in the Housing Act 2004 apply, whether they are mutually exclusive.
Toby Vanhegan and Siân McGibbon
25 October 2022
