The legal regulation of overcrowding
Helen Carr University of Kent
HAS York 2014
THE LONG HISTORY AND STRANGE CURRENCY
OF OVERCROWDING STANDARDS
OUTLINE
Legal provocations
A short history of overcrowding standards
Victorian solutions
The Housing Act 1935
New standards in a post-welfare state?
Explaining the long legal ‘afterlife’ of overcrowding standards
ULTIMATE HOUSING V LB SOUTHWARK
FTT (Property chamber) decision
LON/00BE/HPO/ 2013/0021
HHSRS Housing Act 2004
LB Southwark had issued prohibition orders on bedsitting rooms in shared houses smaller than
10 m2
Landlord appealed – no evidence of risk of harm
DETERMINATION OF TRIBUNAL
there must be a room size that would pose a serious risk to the health and safety of the occupier.
No evidence to demonstrate what that size would be
In the absence of agreement between the parties used overcrowding standards in the Housing Act 1985 to determine that these should be understood to demonstrate a consensus about a size which posed a serious risk.
Upheld Southwark’s decisions to prohibit occupation of all rooms smaller than 6.5 m 2. and struck out its decisions to prohibit occupation of rooms sized between 6.5 m 2 and
10m 2 .
The case has been appealed to the Upper Tribunal
SCO/68/13/10921 9 TH JANUARY 2014
Bedroom tax appeal to FTT (social entitlement) chamber
Judge McMahon referred to overcrowding standards in Housing Act 1985
the regulations pre-suppose that to be classified as a bedroom a room should be large enough to be appropriate for use as a bedroom by one adult or by two children. The rooms in this case were too small for use as a bedroom.
LINK BETWEEN OVERCROWDING AND
PENALISATION OF UNDER-OCCUPATION
We have a problem that needs addressing.
There are over quarter of a million households living in overcrowded social housing in England alone and another 1.8 million households stuck on the social housing waiting list. It is not right to make families wait and wait for a house that is big enough, while other households on benefits are allowed to live in homes that are too big for their needs, at no extra cost (Iain
Duncan Smith 2013).
OVERCROWDING
Britain has been here before
VICTORIAN PROBLEMATISATION OF
OVERCROWDING
Rapid urbanisation
London’s population grew from just under one million in
1801 to almost 4 million by 1881 and by 1911 the population of greater London was well over 7 million
Liverpool 1801 – 77,653
1901 – 684,958
Evangelical concerns
Moral decency
Fear of contagion
OVERCROWDING…
‘…bred drunkenness, crime, and sexual immorality; it destroyed the sanctity of the
‘home’, and of the family within it; it concentrated the masses in a politically dangerous way; it disposed the mind to socialism or nihilism; it encouraged atheism; it helped to spread diseases. Overcrowding, in short, created the spectre of the moral and physical degeneration of the national stock’
(Wohl 1983:299)
RESPONSES – REGULATING SPACE
Common lodging houses
Model byelaws – 300 cubic feet
Factories
1901 350 cubic feet or 400 when the space was used for sleeping or overtime
Workhouses
500 cubic feet per inmate
Barracks
Royal commission 1861 following Crimean War
60 square feet of floor space was to be provided per man and 600 cubic feet of air space
NUISANCE
Public Health Act 1875
S.91 gave local authorities the power to intervene where any house or part of a house so overcrowded as to be dangerous or injurious to the health of the inmates
Authorities had to demonstrate to magistrates that overcrowding was a nuisance as no minimum floor or air space was specified
THE PERSISTENCE OF OVERCROWDING
Census of 1901
400,000 living in one roomed tenements, 9,000 people living 7 to a room and 3,000 8 to a room
‘Evil’ of the interwar years
The Southwark 11 The Times July 13 th 1928… man, wife and nine children living in one room
‘Overcrowding is harder to cure than slums, because it is less definite; it can drift and flow about and escape one’s grasp’ Minister of Housing
THE HOUSING ACT 1935
Room standard
Space standard
Memorandum B
It is relevant to point out that this standard does not represent any ideal standard of housing, but the minimum which is in the view of Parliament tolerable while at the same time capable of immediate or early enforcement
TWO VIEWS
Never in the history of the world or in any country have plans been made on such a comprehensive scale for the abatement and prevention of overcrowding
But
Very low standard – below London standards and included living room. Intention to improve the standard never implemented.
Need to create a consensus - ‘Englishman’s home is his castle’
THE SHORT ACTIVE LIFE OF OVERCROWDING
STANDARDS
Council housing and the decline of the private rented sector
Over the period 1911-2011, the population of England and Wales grew by half but the number of homes grew faster and the number of rooms faster still. The proportion of people living below the widely-used measure of overcrowding of one room per person, a measure of low absolute housing consumption, fell from 48.7% to 3.7%.
Nonetheless inadequacy of responses
Few prosecutions
Little knowledge of overcrowding
Bedroom standard as a better measure of conditions
developed by Government social survey activity in the 1960s. based on the number of bedrooms required for each household allowing for age, sex, marital status, composition & relationship.
Basis of the bedroom tax
REFORMING OVERCROWDING STANDARDS
A post-welfare project?
pressure for reform via New Labour’s Housing Bill rejected
To raise the overcrowding standards in isolation from other factors would be essentially symbolic and would lead to increased demand for housing, to the detriment of other people whose living conditions may be worse; and would make it more difficult for authorities to juggle their priorities. The Government believes that the better approach to the problem of overcrowding is to improve housing supply through the substantial resources which are being provided, rather than try to tackle a single symptom of housing pressure. The Draft Housing Bill –
Government Response Paper, Cm 2000, November 2003 para 15.
The Housing Health and Safety Rating System – elimination of risk rather than promoting social equality
But where is the risk?
CONCLUSIONS
The production of additional homes and housing space, and the reduction in low absolute consumption of housing space, could be rated as amongst the greatest achievements of the twentieth century economy and of twentieth century social policy. For the millions who experienced it over the century, achieving first a room per person, and then two, three or more, must have had a transformative impact on family and personal life.
Tunstall
BUT NOW
Housing interventions designed to promote social solidarity have ceased
Market increasingly dominates distribution of housing space
Growth of new housing space inequality
Limits of available tools means that standards already out of date in the 1930s will increasingly be applied
Housing space increasingly politicised and the poor increasingly dispossessed
