Elrify v City of Westminster Council

Today’s application for permission to appeal was before this court and myself on 1 March 2006; that is more than a year ago. On that occasion Mr Elrify, the applicant, with his wife wanted an adjournment. He wanted it because he is in poor health suffering from a number of long-term disabilities and he wanted an adjournment because he was unrepresented and he did not feel anything but difficulty in advancing the application himself. Even a year ago, I refused the application for an adjournment, explaining that it was not the first time that the application had been listed, and explaining that it was not the first time that an adjournment had been asked for, expressing sympathy for Mr Elrify’s position, but saying that it really was the case that the matter had to proceed, in particular because Mr and Mrs Elrify get no benefit whatever out of an adjournment or further adjournment of the application. Here we are more than a year later and my hope that Mr Elrify and his wife would be represented today has unfortunately not borne fruit. There is again an application for an adjournment supported by a letter from a doctor. The doctor’s letter is not so much a medical certificate, although it refers to Mr Elrify’s health, as a shortly expressed set of reasons why Mr Elrify would like an adjournment. In my judgment an adjournment has to be refused although, again with sympathy for Mr and Mrs Elrify because as a year ago, but a further year has passed, we simply have to get on and determine this application and there is no advantage whatever to Mr and Mrs Elrify if it is prolonged. Nor, indeed, does there seem to be any real prospect that representation will result if we give further time. Accordingly, we decided to refuse the application for an adjournment.

Taking introductory material from the judgment that I gave a year ago, Mr Elrify and his family live in a small house, a maisonette, a three-bedroomed flat perhaps, at 45 Roth Walk, Andover Estate, in London N7. Mr Elrify owns this flat. He and his family first occupied it in about 1985 as council tenants. They took advantage of a right to buy scheme in about 1994 and purchased the flat. There was a mortgage originally but apparently Mr Elrify redeemed the mortgage some time around the summer of 2005, but he told me last year that in order to do that it was necessary to take out a further loan and that the loan was of the order of £40,000. Things may have changed somewhat since then.

The respondents to the application are the City of Westminster because it was to the City of Westminster -- notwithstanding that the Elrify’s live in Islington -- that Mr and Mrs Elrify applied for accommodation, on the basis that their premises were so overcrowded that it was not reasonable for them to live there. Westminster have asserted upon professional advice that the property may be worth up to £200,000. Whether that is right or wrong does not seem to me to matter for present purposes, although the value of the property was a matter of discussion during the course of the events with which the application is concerned.

Mr and Mrs Elrify in 2005, for that is the date upon which the relevant decisions were made, lived in this flat with their seven children. In April 2005 the children were aged approximately 5, 9, 13, 14, 16, 17 and 18. All of them were then in full-time education. So there were in 2005 nine people living in this three-bedroomed flat. Of course time has now passed and some of the older children will have left school, and one of the children has passed their tenth birthday since 2005, which may be of some marginal relevance to the issue. The flat is not a large flat. There are three bedrooms, and when the matter was before the court a year ago, there was evidence as to the size of those bedrooms. This was that the three bedrooms measured approximately 3m x 3m the largest bedroom, 2.75m x 1.8m the second bedroom, and the third a very small room measuring 2.35m x 1.8m. I emphasise that that is the information that was before the court a year ago. Upon that information the smallest bedroom was less than 50 square feet in area, although, as will appear, it looks as if all those figures are too small. The arrangements for sleeping with this family in these small premises are, or at any rate were, that three of the male children sleep in the large bedroom. Two female children one each sleep in the two small bedrooms and the other two female children sleep in the living room, with Mr and Mrs Elrify themselves sleeping in a corridor or passage or something like that. Mr Price, who very kindly appears today on behalf of the City of Westminster, has pointed to an inspection report made by an officer of Westminster at the time which appears to indicate that Mr and Mrs Elrify were not sleeping in a corridor or passage, but for my part I do not think that that detail is critical to today’s application.

Mr Elrify applied under part 7 of the Housing Act 1996 for housing accommodation to be provided by Westminster. This was essentially on the basis that his present flat, although he owns it himself, is simply not large enough for him, his wife and their family, and that by the standard set by the Housing Act 1996, and in particular section 175 of that Act, they should be regarded as homeless. The decision of the council rejected that application. Mr Elrify sought a review of the decision under section 202 of the 1996 Act. Upon that review, the council rejected his homelessness application on grounds which were not entirely the same as those upon which they had rejected it at first instance. The difference between those gave rise to some of the bases upon which Mr Elrify appealed to the county court under section 204 of the 1996 Act. The review decision letter is dated 19 May 2005. The matter came in the county court before HHJ Simpson, who rejected the appeal under section 204 of the 1996 Act. The present application is, as was the application a year ago, an application for permission to appeal against that decision.

The council’s review decision which was the subject of the appeal to the county court was, as I have said, in this letter dated 19 May 2005. What that letter essentially said was that, in the estimation of the council, Mr and Mrs Elrify were not homeless as defined in section 175 of the Housing Act 1996, because they had this accommodation at 45 Roth Walk which it was reasonable for them to occupy. The central part of that decision was expressed in these terms: the letter, having stated that the person responsible for the review had taken into account all the information on the file, the housing review officer proceeded to write:

The letter goes on to note that Mr Elrify owns the flat in which he and his family live and to say things about the value of that flat being in the region of £200,000. But the essence of the council’s decision was that Mr Elrify and his family were not homeless because their flat was reasonably suitable for them to occupy. Part of the reasoning, indeed a central part of the reasoning leading to that conclusion, was that although the premises were overcrowded by reference to provisions relating to statutory overcrowding, it was only overcrowded by one person. Looking at the case in the round, Mr and Mrs Elrify own the flat. They have lived in it for a long time. The council’s position is that there is a number of people within Westminster who are worse off than they are. Although these premises are overcrowded, it is nevertheless reasonable for them in all the circumstances to live there.

It is necessary to look first at the relevant parts of the legislation, which include the following. Section 175 of the Housing Act 1996 provides a person is homeless if he has no accommodation available for his occupation in the United Kingdom or elsewhere which he is entitled to occupy by virtue of an interest in it or by virtue of an order of the court which he has an expressed or implied licence to occupy, or occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession. Section 175(3) provides a person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy. That is the central statutory provision with which this application is concerned. Section 177(2) provides:

Accordingly, it was open to Westminster under that provision to take account of the prevailing social housing conditions in their borough. Section 210 of the 1996 Act provides this:

There is a homelessness code of guidance for local authorities which says of overcrowding:

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. It is, however, important to note that part 10 of the 1985 Act has this as one of its main purposes for defining statutory overcrowding. Section 324 has a definition of overcrowding as follows:

The room standard in section 325 goes as follows:

Section 325 is not centrally relevant to the present application but it is the background to section 326 which is; and it is one of the possibilities in section 324 from which a conclusion might be reached that the premises were overcrowded. Section 326 is headed “The Space Standard” and provides as follows:

An application of that standard leads first to the conclusion that the number of persons sleeping in 45 Roth Walk in 2005 for the purposes of this statutory provision was eight. That is arrived at because although there were seven children, and two adults equals nine, two of the children were under the age of ten. They count as a half, and that means that there were seven people counting one each, and two counting as a half, equals eight. The situation has probably changed between 2005 and today if all the children are still living at home, because one of the children who was under ten in 2005 will be over ten today. So if the matter was considered today, the number of persons would be eight and a half. The number of persons in 2005 was, as I have said, eight.

There are three bedrooms and one living room in these premises. An application of Table I for the purpose of section 326(3)(a) produces a permitted number of persons of seven and a half, and Mr Price explains to us that it was on the basis of the application of Table I that the local authority and the review letter reached the conclusion that these premises were overcrowded according to the statute by only one. However, an application of Table II produces on the evidence available to the court a smaller number and section 326(3) requires for these purposes to be taken whichever is the less of the application of these two tables.

Table II works with reference to the floor area, in square feet, of the rooms in question. If the numbers which I derived from the evidence in my judgment a year ago were correct, an application of Table II would produce a permitted number of four as against the actual number of persons of eight. So the deficiency upon that calculation would have been four, not one as in the letter. However, although Mr and Mrs Elrify have had difficulty in getting represented and advancing their application, they have produced only today, and be it said about ten minutes before the court sat, additional papers. They would wish the court to take account of those additional papers. But, speaking generally, it seems to me that they are produced so late and unfortunately in such unsatisfactory circumstances that the court should generally speaking refuse to admit this material, insofar as it is new, into evidence.

However, we have looked at some of this material. We find among the material two documents, one referred to as site visit inspection notes and the other more in the form of a draft expert’s report. Both are unsigned, but they appear to be the product of the work of an environmental health person called M Cairns. They are dated 13 July 2006 and we notice that they contain information which no doubt Mr Cairns derived from a site inspection as to the floor area of these four relevant rooms.

Since Mr Cairns’ numbers are greater than the numbers that I derived from the evidence last year, in my judgment the fair thing to do is to take account of those numbers in Westminster’s favour because they are greater, whilst at the same time refusing to admit anything else by way of evidence from this report. If therefore the rooms are accurately measured by Mr Cairns, we get the information that the front bedroom is 129 square feet; the front bedroom on the left-hand side is 65 square feet; the rear bedroom is 70 square feet; and the living room is 144 square feet. I emphasise that those numbers are more favourable to Westminster’s case than were the numbers derived from the evidence before the court last year and Westminster have not put in any competing numbers. If therefore one takes those numbers, the permitted number of persons for the purposes of section 326(3)(b) amounts to five and a half. That rather prolonged examination leads to the conclusion that Westminster were not right when they said in the review letter that the statutory overcrowding was only one. I shall return to that in a moment.

There are four grounds of appeal which can be distilled from the very considerable written material that Mr and Mrs Elrify have put before the court. Put briefly they are as follows. First, it is said that the council wrongly considered that two or more of their daughters could move out of the premises. This may be correct about the first version of the council’s decision, but it is not correct for the review decision, and it is not in my judgment a ground of appeal that has any reasonable prospect of success. I would refuse permission to appeal on that ground.

Second, it is said that the council wrongly took into account any capital value of the premises in reaching a decision whether or not the family was homeless. In my judgment that again is an erroneous ground of appeal, because although the capital value is referred to in a narrative sense in the letter of 19 May 2005 it was not, I think, part of the decision. I would refuse permission to appeal on that ground.

Third, it is said that the judge wrongly refused to hear additional oral evidence from Mr Elrify and his wife. I was inclined to say last year that that might or might not be a persuasive consideration. On reconsideration, in my judgment it is not persuasive because I have failed to see any material that the judge could have got at that stage from Mr and Mrs Elrify which was not already before him in the written material. I would refuse permission to appeal on that ground.

The fourth ground of appeal could be expressed as that the council and the judge reached an untenable decision as to reasonableness, but is more persuasively framed as the ground of appeal which has been debated in court today; that is to say, that the review decision was wrong to say that according to the statutory overcrowding standard there is only one person too many in their home. In my judgment that is an arguable ground of appeal and I would give permission to appeal on that ground.

The ground of appeal would then be formulated as follows: one of the main bases upon which the council reached its decision that the accommodation at 45 Roth Walk was reasonable for the family to occupy was a calculation which said that according to the statutory standard in part 10 of the Housing Act 1985 there was overcrowding only by one person. That was wrong, for the extended reasons that I have set out earlier in this judgment. The calculation should have resulted in a conclusion that the statutory overcrowding was not by one person only, but by two and a half.

In opposition to this ground of appeal, which as I say is the only one on which I would give permission to appeal, Mr Price says firstly that the appellants need an extension of time for bringing this appeal in the first place. It is, however, a very short extension of time and for my part I would give them that extension of time. Mr Price next says that this is a second appeal and that the standard for giving permission to appeal on a second appeal in rule 52.13 of the Civil Procedure Rules is not met. The standard is that the appeal raises an important point of principle or practice or there is some other compelling reason why the court should hear the appeal. This is, I grant, a second appeal, but the original decision, that is to say the review decision from which there was the appeal to the county court, was not a judicial decision. Thus the second appeal is on one view the first appeal from a judicial decision. That does not disapply rule 52.13, but it does in my judgment mean that the court can take a somewhat more relaxed approach to an appeal which has clear merit, if indeed it does. I would give permission to appeal, albeit that it is a second appeal for that reason.

As to the substance of the matter, Mr Price, who is if I may say so to be commended for the way in which he has dealt with this application and appeal in really quite difficult circumstances, submits that the court should not regard the review decision as flawed to the point where an error of law should be perceived and the appeal allowed. He says firstly this: that in applying section 326 of the 1985 Act there is no need to go beyond Table I if by Table I a decision is reached, as was the case here, that the dwelling is overcrowded. He says that the appropriate thought process is to determine by that table that the dwelling is overcrowded and then for the appropriate officer to do what was done in this case, to go to the property, to see it on the ground, to see the overcrowding as it was and then to make an appropriate judgment as to reasonableness.

In my judgment that is not a persuasive submission. In making it Mr Price refers to some textbook notes relating to section 326. Those notes do indeed say that if the application of Table I produces the answer that the dwelling is overcrowded, it is unnecessary to look at Table II. I can quite see that that would be the case, if the question was whether there was a summary statutory offence under part 10 of the 1985 Act, but we are not concerned with that in this case. We are concerned with the question whether these premises are overcrowded, and both the statute and the ministerial guidance directs attention to the definition of statutory overcrowding in part 10 of the 1985 Act. In my judgment it is necessary to look at the whole of that, and that means looking not only at Table I but at Table II. One remembers that in order to determine whether the premises are statutorily overcrowded, the section 326 requires the court to take the lesser of the product of those two enquiries.

Mr Price then submits that the court should nevertheless regard the review decision in this case as a proper decision because the conclusion was properly reached, and indeed correctly reached, that the premises were overcrowded by the statutory standard and then, as I have indicated, an appropriate inspection took place and a judgment was made on the basis of that inspection. I have no doubt at all that the inspection of the premises was one which contributed to the decision that was made. Nevertheless, coming back to the decision itself, whose principle part I have already read, it is in my judgment clear that the proposition that these premises were overcrowded to the statutory standard only to the extent that there was one person too many was an important and central part of the decision that had to be made whether the accommodation was reasonable for this family to occupy. The council unfortunately made an error in reaching the conclusion that the overcrowding was only by one person too many. The proper application of section 326 upon the information available to the court should have led to the conclusion that it was in fact not one, but two and a half. That difference in my judgment is material. In those circumstances, with if I may say so considerable sympathy to Westminster, in my judgment this should be regarded as a decision which was flawed because one of the main reasons was actually wrong.

In those circumstances, and for that in the end rather limited reason, in my judgment this appeal should succeed. It should succeed so that the court should direct that Westminster should reconsider the review, and reconsider it obviously for practical and sensible reasons on up to date circumstances, since there is no sensible reason for looking at it in circumstances that pertained some two years’ ago.

In those circumstances and for those reasons I would allow this appeal.

I agree. I add only that Mr and Mrs Elrify must not assume that just because this appeal has been allowed and the council are to be required to reconsider their decision, that the outcome will inevitably be that they will be re-housed. They must not have that impression at all. The effect of the decision is only that the council must look at the matter again.