Blog by Connor Johnston of the Garden Court Housing Team.
Ed Fitzpatrick of the Garden Court Housing Team represented Mr Flores.
R (Flores) v London Borough of Southwark  EWCA Civ 1697
15 December 2020
The Appellant, Mr Flores, lived in a one bedroom flat in the London Borough of Southwark, together with his partner and their two children (aged 11 and 14). They had moved into the property in July 2014. The Appellant was employed as a kitchen assistant in a restaurant. His partner cared for the children full-time until 2017, at which point she began to work as a cleaner at a local school. They had moved into the flat as they were unable to afford the rent on larger property.
In October 2018 they applied to be placed on Southwark’s allocation scheme and, in May 2019, they were placed in Band 4 (Reduced Priority), as Southwark accepted that they had been living in statutorily overcrowded conditions, for the purposes of Part X Housing Act 1985, since the youngest child had turned 10.
The household were later moved into Band 3 of the allocation scheme. But Southwark refused to place the household in Band 1. Southwark’s scheme provided that households living in statutorily overcrowded conditions would normally be placed in Band 1. However an exception applied to those who had “caused this statutory overcrowding by a deliberate act”. This exception, it was said, applied to Mr Flores as “[t]he overcrowding had started from when the [appellant] initially moved his family of four into the current 1-bedroom flat” and “[t]here was nothing to indicate this was anything other than a voluntary act” and so it was considered to have been deliberate.
Mr Flores sought judicial review of this decision. He argued that to amount to “a deliberate act” within the meaning of the allocation scheme, “an act has to be culpable in the sense that it is deliberately intended to promote the interests of the applicant in relation to the borough's housing allocations policy”. His application was refused by the High Court. The Judge held that Mr Flores has acted voluntarily and that this was sufficient for Southwark to conclude that his overcrowding was deliberate.
On appeal, Mr Flores sought to argue that he had not acted deliberately in the sense meant by the scheme and that his overcrowding had been caused by the natural event of his children getting older.
The Court of Appeal allowed his appeal. The word “deliberate” was an ordinary English word and, in the context in which it was used in the allocation scheme, did not require any “explanation or glossing”. As such, it did not import a requirement that the act in question needed to be culpable or planned. However, although Mr Flores had acted deliberately in moving into the accommodation some five years earlier, this could not be regarded as the cause of his statutory overcrowding:
"The accommodation which the appellant reasonably decided to take only became statutorily overcrowded as a result of his children growing, as they inevitably would. That, in my judgment, was the cause of the overcrowding in this case. It cannot on any sensible understanding of paragraph 6.2 of the Scheme be regarded as a deliberate act on the part of the appellant. With respect, for the council to have decided otherwise exceeds the bounds of any flexibility which may be accorded to it in the implementation of its Scheme."
To hold otherwise, the court observed, would lead to “odd, or even perverse, consequences” as it would mean that “an applicant who acts reasonably in taking the most suitable accommodation for his family that he can afford disqualifies himself from priority once his children grow to an age which renders that accommodation statutorily overcrowded”. Southwark, and the Judge below, had erred in drawing a distinction between the situation where a household becomes overcrowded as a result of the birth of a child (described as a “natural increase” in household size) and the situation where a household becomes overcrowded as a result of children getting older. The latter was both “natural and inevitable” and so the distinction between the two situations was misconceived. The court made a declaration that the Mr Flores was entitled to be placed in Band 1 with effect from October 2019.