Neutral Citation Number: [2007] EWCA Civ 1000
Case No: B5/2007/0537
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LONDON CIVIL JUSTICE CENTRE
His Honour Judge Knight QC

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17 10 2007
Before :

LORD JUSTICE WARD
LORD JUSTICE THOMAS
and
LORD JUSTICE RICHARDS
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Between:

	Houda Harouki	Appellant	
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	Royal Borough of Kensington and Chelsea	Respondent	

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Kerry Bretherton (instructed by J.D. Spicer & Co) for the appellant 
Bryan McGuire (instructed by Royal Borough of Kensington and Chelsea Law & Administration Dept) for the respondent 

Hearing date: 4th July 2007
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Judgment
Lord Justice Ward: 
The issue in this appeal
1.	Section 327 of the Housing Act 1985 (“the 1985 Act”) makes it a summary offence punishable by a fine for the occupier of a dwelling to cause or permit it to be overcrowded which it will be when the number of persons sleeping in the dwelling is such as to contravene either the room standard or the space standard as specified in sections 325 and 326 of the 1985 Act respectively.  Section 175 of the Housing Act 1996 (“the 1996 Act”) provides that a person is homeless if he has no accommodation available for his occupation which he is entitled to occupy and by virtue of subsection (3), he shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.  The applicant, Mrs Harouki, is the tenant of and so entitled to occupy 6 Yeovil House, Sutton Way, London W10 with her husband and five children in circumstances where the space standard for overcrowding is contravened.  She commits an offence every day and night this continues.  The issue in this appeal is this: was the Housing Review Officer of the respondent borough acting illegally, perversely or irrationally in concluding that notwithstanding her committing that continuing criminal act, it was still reasonable for her to continue to occupy the premises and, accordingly, that she was not homeless?  His Honour Judge Knight QC sitting in the Central London County Court on 1st March 2007 dismissed her appeal from that decision.  Sir Henry Brooke granted permission to appeal because the appeal “raises an important point of law on which it is desirable to obtain an authoritative ruling from [this Court]”.  
More of the legislative scheme
2.	First under Part 10 of the Housing Act 1985, section 326 provides that the space standard is contravened when the number of persons sleeping in the dwelling is in excess of the permitted number, having regard to the number and floor area of the rooms available as sleeping accommodation as specified in the table set out in that section.  This constitutes overcrowding within the meaning of section 324 and gives rise to the offence under section 327.  The fine to which the occupier is liable shall not exceed level 2, but it may include a further amount for every day after conviction on which the offence continues.  There are exceptions, for example, for children as they attain the ages of one and ten as the case may be, or for visitors.  In exceptional circumstances the local authority can grant a licence permitting the overcrowding (section 330).  On the other hand, where a dwelling is overcrowded in circumstances giving rise to an offence, the local housing authority can serve an abatement notice and can then obtain an order in the County Court that vacant possession be given to the landlord (section 338).  By section 339 it is the duty of the local housing authority to enforce the provisions of Part 10, and a prosecution for an offence under those provisions may be brought only by the authority.  Section 216 of the Housing Act 2004 permits the appropriate national authority to make orders determining whether a dwelling is overcrowded for the purposes of Part 10 but this section is not yet in force.  
3.	Part 7 of the Housing Act 1996 deals with homelessness.  Section 177 is important in determining whether it is reasonable for the applicant to continue to occupy the accommodation.  It provides:
“(1)  [A special provision for those suffering domestic or other violence.]
(2)  In determining whether it would be, or would have been, reasonable for a person to continue to occupy accommodation, regard may be had to the general circumstances prevailing in relation to housing in the district of the local housing authority to whom he has applied for accommodation or for assistance in obtaining accommodation.
(3) The Secretary of State may by order specify— 
(a) other circumstances in which it is to be regarded as reasonable or not reasonable for a person to continue to occupy accommodation, and 
(b) other matters to be taken into account or disregarded in determining whether it would be, or would have been, reasonable for a person to continue to occupy accommodation.”
No relevant orders have been made by the Secretary of State under subsection (3).
4.	If the local authority is under a duty to find accommodation for the homeless applicant, it discharges that function by securing that “suitable accommodation” is provided and, pursuant to section 210:
“(1)  In determining for the purposes of this Part whether accommodation is suitable for a person, the local housing authority shall have regard to Parts IX, X and XI of the Housing Act 1985 (slum clearance; overcrowding; houses in multiple occupation). 
(2)  The Secretary of State may by order specify— 
(a) circumstances in which accommodation is or is not to be regarded as suitable for a person, and 
(b) matters to be taken into account or disregarded in determining whether accommodation is suitable for a person.”
No relevant orders have been made under subsection (2) touching upon overcrowding.
5.	 A code of guidance has been issued on how to determine whether a person is homeless for the purposes of Part 7.  This provides:
“8.26.  Section 177(2) provides that, in determining whether it is reasonable for a person to continue to occupy accommodation, housing authorities may have regard to the general housing circumstances prevailing in the housing authority’s district.  
8.27.  This would apply, for example, where it was suggested that an applicant was homeless because of poor physical conditions in his or her current home.  In such cases it would be open to the authority to consider whether the condition of the property was so bad in comparison with other accommodation in the district that it would not be reasonable to expect someone to continue to live there.
8.28.  Circumstances where an applicant may be homeless as a result of his or her accommodation being overcrowded should also be considered in relation to general housing circumstances in the district.  Statutory overcrowding, within the meaning of Part 10 of the Housing Act 1985, may not by itself be sufficient to determine reasonableness, but it can be a contributory factor if there are other factors which suggest unreasonableness.”
The background facts
6.	The appellant lives with her family in a self-contained flat on the second floor of a purpose built block.  The dwelling has three bedrooms, a living room, kitchen and bathroom.  Bedroom 1 measures 10.25 m2.  Mr and Mrs Harouki had been estranged but had reconciled and resumed living together.  They occupy this bedroom together with their ten year old son and four year old daughter.  Bedroom 2 measures 6.72 m2 and is occupied by their seventeen and eighteen year old daughters.  The third bedroom measures only 5.69 m2 and this is occupied by their twenty year old son who suffers obesity and could more comfortably sleep on a 4 ft bed rather than his present 3 ft bed but this would further cramp the little space available in this room.  The living room measures 16.44 m2 and is used as a place for the children to do their homework and for general living though it is deemed to be a bedroom for the purpose of calculating statutory overcrowding.  
7.	It is common ground that that accommodation exceeds the space standard for overcrowding in that, according to the statutory calculations, it is fit for occupation by only five and a half persons whereas there are six currently sleeping there.  
8.	There is also no challenge by the local authority that Mrs Harouki suffers a degree of ill health, being diagnosed with depression, an underactive thyroid and back pain for each of which she is prescribed medication of a moderate dosage.  It was not disputed that she would to some extent suffer from a degree of low mood and depression in view of her overcrowded circumstances.  Given her back ache, she has difficulty using the stairs especially when carrying home the shopping for this large family.  Thus the housing authority accepted that her current accommodation was not ideal in terms of size and floor level but on her renewed application to be treated as homeless, the housing adviser concluded that the accommodation was “not so crowded, nor so difficult to access ... that it was unreasonable for [the applicant and her family] to occupy”.  She exercised her right to ask the housing authority to review that decision.  
The decision of the Housing Review Officer
9.	In a long and careful decision letter the Housing Review Officer recited the material facts and explained the context in which he had to consider her application, saying:
“The Housing Act 1996, Part VII, is designed to function as a safety net to those facing crisis homelessness.  That is, those people who are considered presently homeless or who will be homeless within 28 days.  It was never intended to be used as an alternative route into social housing.  In your case what I am being asked to consider, is whether your current accommodation is so unreasonable to occupy that it could be said, that in effect you are actually currently homeless and therefore trigger the emergency duties, falling on this Authority, contained in Part VII of the Act.”
10.	He concluded:
“1.  ...  There are unfortunately a great many families currently living in overcrowded accommodation, some of which is having a negative impact on her health.  In this context, the fact that someone’s accommodation may be statutorily overcrowded does not in itself make the accommodation unreasonable to occupy if that is a prevailing housing condition within a local authority’s area.  
2.  ...  you are statutorily overcrowded by half a person.  However, this has to be considered in the context of the prevailing housing conditions in the area.  I am of the view that there are many local families in more severely overcrowded conditions than you and your family.  You are currently registered on the Council’s Common Housing Register for a five bedroom property.   You have been awarded 75 points to reflect your current housing need.  There are at present 21 households on the register who are in greater need than you for five bedroomed accommodation.  Therefore, in comparison to the prevailing conditions relating to housing in this authority’s area your circumstances of overcrowding are not considered to be exceptional.  
Having regard to all your circumstances, including your medical problems, I am satisfied you are not homeless as you have accommodation available to you at 6 Yeovil House ....  I believe this accommodation is suitable for your needs, available for you to occupy and reasonable for you to continue to occupy.  ...   ”
11.	The question for the County Court judge as for us is whether or not the Housing Review Officer erred in law in coming to that decision.  
Discussion
12.	In summary the arguments advanced to us were these.  Miss Kerry Bretherton’s submission on behalf of the appellant is simple but all the more compelling for that.  She maintains that it cannot be reasonable to continue to occupy accommodation if by doing so a criminal offence would be committed.  Indeed the decision is all the more perverse having regard to the facts first that it is the local housing authority’s duty under Part 10 of the 1985 Act to take steps to secure possession of the property if it is overcrowded and/or prosecute the offending occupier, and secondly that her and her son’s ill health have been exacerbated by continuing to have to live in overcrowded conditions.  
13.	Mr Bryan McGuire contends that as a matter of construction of the Act as a whole, overcrowding is but one of many factors to take into account and, far from specifying that it cannot be reasonable to expect a person to occupy overcrowded premises, the Act recognises that accommodation may be suitable even if it is overcrowded. 
14.	Miss Bretherton’s central argument had for me, at least as a matter of first impression, an attractive ring to it.  Surely the answer to a question: “Is it reasonable for the appellant to continue to occupy this flat when doing so constitutes a criminal act?”, must be, “No, it cannot be reasonable to require that of her.”  On further thought, however, I am persuaded that the error in this approach lies in the way the question is framed.  The statutory question is not so simple.  It is not properly expressed if asked in terms of such generalities.  The proper question must take section 177(2) of the 1995 Act into account.  Properly directing himself, the decision-maker would then ask: “Having regard to the general circumstances prevailing in relation to housing in my district, including overcrowding in the district, is it reasonable for the appellant to occupy her accommodation?”  When the question is expanded in that way, it permits of the affirmative answer which the Housing Review Officer in fact gave it.    
15.	There is no direct authority bearing on the question.  There are cases about whether overcrowding less serious than statutory overcrowding is a relevant factor but that does not assist us.  There is the view expressed by McCullough J in 1983 in R v Westminster City Council, ex parte Ali 11 HLR 83, 93:
“That anyone should regard as reasonable that a family of that size should live in one room 10 ft x 12 ft in size, or thereabouts, is something which I find astonishing.  However, the matter has to be seen in the light of s 17(4) [now s 177(2)] which requires that reasonableness must take account of the general circumstances prevailing in relation to housing in the area.  No evidence has been placed before me that accommodation in the area of the Westminster City Council is so desperately short that it is reasonable to accept overcrowding of this degree.  In the absence of such evidence I am driven to the conclusion that this question could not properly have been determined against the applicant.”
16.	I am much more assisted by the speech of Lord Hoffmann in R v Brent London Borough Council ex parte Awua [1996] 1 A.C. 55, 67, drawing attention to the historical development of the statutory provisions:
“The consequence of the decision in Ex parte Puhlhofer was that a person accommodated in conditions so intolerable that it would not be reasonable for him to continue to occupy that accommodation was not homeless although, if he actually left, he would not thereby become intentionally homeless.  This produced the inconvenient result that persons living in such conditions had to put themselves on the street before they could activate the local authority’s duty to provide them with accommodation.  To remedy this difficulty, the 1986 amendments (by sections 14(1) and (2)) again introduced a definition of “accommodation” in section 58(2A) of the Act of 1985: ‘A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.’  Guidance on the quality of accommodation which a local housing authority is entitled to treat as reasonable for a person to continue to occupy is provided by s. 58(2B) (as added by the Act of 1986):
‘Regard may be had, in determining whether it would be reasonable for a person to continue to occupy accommodation, to the general circumstances prevailing in relation to housing in the district of the local housing authority to whom he has applied for accommodation or for assistance in obtaining accommodation.’
It follows that a local authority is entitled to regard a person as having accommodation (and therefore as not being homeless) if he has accommodation which, having regard to the matters mentioned in subsection (2B), it can reasonably consider that it would be reasonable for him to continue to occupy.”
Sections 175(3) and 177(2) of the 1996 Act mirror sections 58(2A)and (2B) of the Act of 1985.  Lord Hoffmann also drew attention at p. 68 to the necessary symmetry in the determination of whether the accommodation is suitable for a person for section 210 purposes and whether it would be reasonable for that person to continue to occupy the accommodation for section 175(3) purposes.  
17.	In considering whether the accommodation is suitable, deputy High Court Judge Stephen Richards, as he then was, said in R v Camden Borough Council, ex p. Jibril (1997) 29 HLR 785:
“...  in judging what is suitable, the authority is entitled to look at the position in broad terms, having regard to the general shortage and nature of accommodation.”
18.	In Elrify v City of Westminster Council [2007] EWCA Civ 332 May L.J. commented in paragraph 11:
“Part 10 of the 1985 Act concerns overcrowding.  Its pivotal provision is section 327 which provides that, subject to some exceptions, the occupier of a dwelling who causes or permits it to be overcrowded commits a summary offence.  It is perhaps a little surprising to find ministerial guidance to the effect that it may be reasonable to occupy accommodation when by reason of overcrowding the occupier commits an offence.  But that is how it appears the ministerial guidance is.”
19.	Miss Bretherton contends, correctly in my judgment, that the Code is not an authoritative guide to interpretation of the Act (see Auld LJ in Begum v Tower Hamlets London Borough Council 32 HLR 445, 454).  As Kennedy LJ held in Griffin v City of Westminster [2004] EWCA Civ 108, at paragraph 4:
“The status of the code is clear from Section 182(1) of the Act.  In exercising their functions local housing authorities must "have regard to" the code, but if the code differs from the statute, as interpreted by this court, it is the statute which prevails (see R v Secretary of State for the Environment ex p. Tower Hamlets [1993] QB 632).”
Surprising though it may be, counter-intuitive almost, I am satisfied that the guidance does correctly express the law.  
20.	There are various ways to test that conclusion.  If, as I have indicated, suitability and reasonableness are related concepts, then statutory overcrowding should receive similar treatment whether looking at it for section 175(3) or section 210 purposes.  If not, then the ludicrous result is that if statutory overcrowding compels the conclusion that it is not reasonable for the applicant to continue to occupy the accommodation, then there is a duty to find alternative accommodation for her but that accommodation may be suitable even if it is overcrowded.  In those circumstances the applicant would be bound to accept overcrowded accommodation and could consequently return to the local housing authority the next day and complain that the property may be suitable for section 210 purposes, but it would not be reasonable under section 175(3) to continue to occupy it.  The applicant could once again demand to be rehoused.  This could go on forever.  That cannot be right.  If, therefore, by virtue of the express recognition in section 210 that overcrowding does not necessarily render the accommodation suitable, it must follow if the statute is to be given a coherent and consistent construction that overcrowding does not necessarily prevent it being reasonable for the applicant to continue to occupy the accommodation for section 175(3) purposes.
21.	There are other indications in the statutory scheme when looked at as a whole which point to the correctness of this view.  Overcrowding gives a person preferential treatment in the allocation of housing under Part 6 of the 1996 Act: see section 167(2).  Mr McGuire asked rhetorically, “If Parliament intended that all occupiers of overcrowded accommodation be automatically homeless, and entitled to seek Part 7 accommodation, why has it made provision for those in overcrowded accommodation to be awarded a reasonable preference?”  
22.	He also points to the powers granted to the housing authority to take steps to ensure that possession is given if the premises are overcrowded.  Again he asks rhetorically, “Why would Parliament provide local housing authorities with powers to serve notices and then seek possession under the overcrowding provisions if those authorities were already under a duty to provide accommodation under the homelessness provisions?”  
23.	All these arguments lead me to conclude that the guidance in paragraph 8.26 correctly expresses the right approach to the statute when it is considered as a whole in the context of the Housing Act schemes set out in the 1985 and 1996 Acts.   That guidance explicitly contemplates that statutory overcrowding may not by itself be sufficient to determine reasonableness.  
24.	In those circumstances the Housing Review Officer was fully entitled to look at the prevailing circumstances in the borough, including the unfortunate extent of overcrowding in the borough, and, consequently, having properly had regard to the family’s personal circumstances and ill health, he was not acting illegally or irrationally in concluding that it was reasonable to require Mrs Harouki and her family to continue to occupy the flat until it was her turn to be rehoused under Part 6.  I see no error of law in his decision.  Judge Knight QC was correct in his admirable ex tempore judgment to dismiss her appeal.  I must now dismiss this appeal also.  
Lord Justice Thomas:
25.	I agree.
Lord Justice Richards:
26.	I also agree.