The London Borough of Southwark was entitled to conclude a family was not in the highest category of overcrowding because it had voluntarily moved into accommodation that would become statutorily overcrowded as its children grew older.
In Flores, R (on the application of) v London Borough of Southwark  EWHC 1279 Mr Justice Martin Spencer found that it made no difference whether or not claimant Favio Ortega Flores was aware of the council’s policy when the family moved into the one-bedroom flat.
He moved there with his partner and two children in 2014, and when his oldest child became 10 the accommodation became statutorily overcrowded for the purposes of s.326 of the Housing Act 1985.
The judge said there was “no evidence or suggestion that the claimant moved his family into one-bedroomed accommodation deliberately in order to qualify within the overcrowding criteria of the defendant but rather because that was all he could afford”.
After some dispute Southwark accepted his partner Elba Velasquez had a local connection through working in the borough.
Southwark then placed the family in ‘band 4’ of the housing register by which time both children were aged over 10.
It later reassessed them as ‘band 3’ but said: “As natural increase has not occurred, whereby you had moved into overcrowded accommodation at the outset, you do not meet the criteria to be awarded statutory overcrowded priority on the council's home search bidding scheme, nor do you meet the criteria to be awarded any associated priority star, in accordance with the allocations' policy”.
Quesha Tait, Southwark’s rehousing manager, said in a witness statement that her decision was final: “I distinguished [Mr Flores’] position from that of 2,961 other households in the borough who did meet the local connection criteria and had not deliberately moved into accommodation which was overcrowded at the outset.”
The judge said he was willing to hear a judicial review since the family had been left with no other recourse to challenge Southwark’s decision. But he rejected their case in a ‘rolled-up’ hearing.
Martin Spencer J said Mr Flores’ case was that where Southwark referred to “a deliberate act” to unfairly advance on the housing register he meant this was one “deliberately intended to promote the interests of the applicant in relation to the borough's housing allocations policy”.
He said the wording though simply meant the act was voluntarily, in this case entering into the tenancy for the one bedroom property.
The judge said that whether Mr Flores was aware at the time of moving in of Southwark’s rules “cannot, in my judgment, make any difference”.
He continued: “Here, the applicant entered into a tenancy for a one-bedroomed flat in the knowledge that he would be occupying the flat with his partner and their two children, four people thus occupying a one-bedroomed property.
“In my judgment that is sufficient for [Southwark] to conclude that this was a deliberate act within the meaning of its policy whereby the claimant does not come within band 1.”
He said Ms Tait had “adopted a sensible and lawful approach in finding that [the] family…is fairly to be contrasted with a family which moves into accommodation which is appropriate for the number of family members at the time, but where the accommodation then becomes overcrowded because the family increases in size”.