What is a “deliberate” act?
Milton Laines Roman moved to Southwark to look for work. He moved into a small flat, and when he was evicted by his landlord for overcrowding, moved into another small flat. He then decided to bring his wife and three children to join him there. The flat was statutorily overcrowded from the start.
He remained there, despite an improved financial situation, applied to go on Southwark’s waiting list, and refused their offers of assistance to move into alternative accommodation, which would have been in the private rented sector.
Southwark declined to give him priority band 1 on their waiting list as, although his accommodation was statutorily overcrowded, he was there because of his deliberate act.
In a judgment handed down on 24 May 2022 Lang J has quashed that decision. The Judge held, as had the Court of Appeal in the earlier case of R (Flores) v Southwark LBC  EWCA Civ 1697, that “deliberate” has its ordinary English meaning. She went on to say, however, that where there was no other viable choice, actions should not be taken to be deliberate:
“I conclude that the correct interpretation of the ‘deliberate act’ provision in section 6.2 of the Scheme is that an act is only deliberate if the applicant intended to do it, in the sense that they had a real choice between two or more viable options and voluntarily elected to do the act“
Her decision does not go on to explain what amounts to a “viable option”. She accepted that Southwark’s policy is legitimate :
“The Council had a legitimate policy of seeking to prevent abuse of the overcrowding priority category, which it achieved in two ways. First, by application of the ‘deliberately worsening of circumstances’ test in sections 3.5.9 and 5.24 of the Scheme. Initially the Council found that the Claimant had deliberately worsening his circumstances by moving into the East Street flat, but after further consideration, it withdrew that finding. Second, by application of the ‘deliberate act’ test in section 6(2), which was the basis for the decision under challenge. The Council must investigate and then exercise its discretionary judgment in applying those tests, which is subject to the supervisory jurisdiction of this Court, on public law grounds“
She also held that it was rational for Southwark to suggest that the Claimant could move out of the Borough. However, in the particular facts of this case, she found that the decision that the Claimant had acted deliberately was irrational.
This decision means that Southwark will have to reconsider whether the Claimant’s acts were deliberate, in that he and his family had other viable options, or whether the Claimant did not act voluntarily and is therefore entitled to priority over the disabled, the overcrowded and the victims of domestic abuse on Southwark’s waiting list.
The Judge rejected two other grounds for seeking judicial review, which argued that Southwark operated an unlawful unwritten policy, and that their policy discriminated against those who cannot afford to move into the Borough.
Southwark is presently consulting on its allocations scheme. This case will no doubt add to the factors taken into account in that review.
Catherine Rowlands acted for Southwark LBC. You can read the judgment in full here.