Council house exchange advice - Overcrowding

Current legislation Part X Housing Act 1985 uses two legal standards to determine occupancy/overcrowding.

1) The Room Standard - s325

How to determine the makeup of your household when applying the Room Standard:

Each Adult (over 18 Years): 1 Unit/Person
Each Child (over 10 Years): 1 Unit/Person
Each Child (under 10 Years): 0 Units/Person

This standard determines occupancy by the number of available bedrooms within the property:

1 Bedroom Property: Maximum 2 Units.
2 Bedroom Property: Maximum 3 Units.
3 Bedroom Property: Maximum 5 Units.
4 Bedroom Property: Maximum 7.5 Units.

Property in excess of 5 Bedrooms - Legislation permits that each additional Bedroom may accomodate an additional 2 Units.

2) The Space Standard - s326

How to determine the makeup of your household when applying the Space Standard:

Each Adult (over 18 Years): 1 Unit/Person
Each Child (over 10 Years): 1 Unit/Person
Each Child (between 1 & 10 Years): 0.5 Units/Person
Each Child (below 1 Year): 0 Units/Person

This standard determines occupancy by the size (floor space) of available rooms within the property, which are considered useable for sleeping. In addition to Bedrooms, this standard takes into account Living Rooms and Dining Rooms where available.

Rooms measuring between 4.6m² and 6.5m² : Maximum 0.5 Units.
Rooms measuring between 6.5m² and 8.3m² : Maximum 1 Unit.
Rooms measuring between 8.3m² and 10.2m² : Maximum 1.5 Units.
Rooms measuring 10.2 m² or greater: Maximum 2 Units.

Where there are 2 rooms within the property, the maximum number of persons/units is only 3, even if both rooms are more than 10.2m² in size.

Measuring a Room

Bedrooms and Living rooms within the property may be counted as available for sleeping.
Communal or Shared Living rooms may not be counted.
Ceiling heights of less than 2.1m are not acceptable, except in the situations set out below (where ceilings slope)
Areas within the room where a ceiling height of less than 1.5m should be excluded from the calculation
You should only count as occupied space the area of floor over which you can achieve an average of 2.3m or greater over at least 50% of that remaining floor area.

Remember:

No Children of the opposite sex and of 10 years or above should have to share a Bedroom

If overcrowding can be shown under either standard, then a legal issue of overcrowding exists.

There are exceptions as set out by s328 - s330 of the act:

328 Exception: children attaining age of 1 or 10

Where a dwelling which would not otherwise be overcrowded becomes overcrowded by reason of a child attaining the age of one or ten, then if the occupier:

(a) applies to the local housing authority for suitable alternative accommodation, or

(b) has so applied before the date when the child attained the age in question,he does not commit an offence under section 327 (occupier causing or permitting overcrowding - See below), so long as the condition in subsection (2) is met and the occupier does not fail to take action in the circumstances specified in subsection (3).
The condition is that all the persons sleeping in the dwelling are persons who were living there when the child attained that age and thereafter continuously live there, or children born after that date of any of those persons.
The exception provided by this section ceases to apply if:

(a) suitable alternative accommodation is offered to the occupier on or after the date on which the child attains that age, or, if he has applied before that date, is offered at any time after the application, and he fails to accept it, or

(b) the removal from the dwelling of some person not a member of the occupier?s family is on that date or thereafter becomes reasonably practicable having regard to all the circumstances (including the availability of suitable alternative accommodation for that person and the occupier fails to require his removal.

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329 Exception: visiting member of family

Where the persons sleeping in an overcrowded dwelling include a member of the occupier's family who does not live there but is sleeping there temporarily, the occupier is not guilty of an offence under section 327 (occupier causing or permitting overcrowding) unless the circumstances are such that he would be so guilty if that member of his family were not sleeping there.

330 Licence of local housing authority

The occupier or intending occupier of a dwelling may apply to the local housing authority for a licence authorising him to permit a number of persons in excess of the permitted number to sleep in the dwelling.
The authority may grant such a licence if it appears to them that there are exceptional circumstances (which may include a seasonal increase of population) and that it is expedient to do so; and they shall specify in the licence the number of persons authorised in excess of the permitted number.
The licence shall be in the prescribed form and may be granted either unconditionally or subject to conditions specified in it.
The local housing authority may revoke the licence at their discretion by notice in writing served on the occupier and specifying a period (at least one month from the date of service) at the end of which the licence will cease to be in force.
Unless previously revoked, the licence continues in force for such period not exceeding twelve months as may be specified in it.
A copy of the licence and of any notice of revocation shall, within seven days of the issue of the licence or the service of the notice on the occupier, be served by the local housing authority on the landlord (if any) of the dwelling.

Rooms which can be counted as available for sleeping under the Space Standard

The Space standard sets out that; a room can be counted as available for sleeping, so long as it is the type that can be used in the locality, for either a Living room or Bedroom. So effectively only Bedrooms & Living Rooms within the property (locality) can be counted as available.

Can a room be counted as available for sleeping, where a gas fire is fitted?

In terms of a Gas Fire being present in one of those rooms; with affect of October 1998, HSE guidance states that; any room converted to use as sleeping accommodation should not contain the following types of gas appliances:

A A gas fire, gas space heater or a gas water heater (including a gas boiler) over 14 kilowatts gross input unless it is room sealed.
B A gas fire, gas space heater, or a gas water heater (including a gas boiler) of 14 kilowatts gross input or less or any instantaneous water heater unless it is room sealed or has an atmosphere-sensing device.

If the appliance does not comply with either A or B, then the room cannot be considered as 'available for sleeping' until either the appliance is changed to comply or removed completely. The exception to this would be short term use - for example temporarily sleeping in the room as a result of illness.

What the law says:

The Tenants responsibility

s327 - Penalty for occupier causing or permitting overcrowding

The occupier of a dwelling who causes or permits it to be overcrowded commits a summary offence, subject to subsection (2).
The occupier is not guilty of an offence:

(a) if the overcrowding is within the exceptions specified in section 328 or 329 (children attaining age of 10 or visiting relatives), or

(b) by reason of anything done under the authority of, and in accordance with any conditions specified in, a licence granted by the local housing authority under section 330.
A person committing an offence under this section is liable on conviction to a fine not exceeding level 2 on the standard scale and to a further fine not exceeding one-tenth of the amount corresponding to that level in respect of every day subsequent to the date on which he is convicted on which the offence continues.

The Landlords responsibility

s331 - Penalty for landlord causing or permitting overcrowding

The landlord of a dwelling commits a summary offence if he causes or permits it to be overcrowded.
He shall be deemed to cause or permit it to be overcrowded in the following circumstances, and not otherwise?

(a) if he or a person effecting the letting on his behalf had reasonable cause to believe that the dwelling would become overcrowded in circumstances rendering the occupier guilty of an offence;

(b) if he or a person effecting the letting on his behalf failed to make inquiries of the proposed occupier as to the number, age and sex of the persons who would be allowed to sleep in the dwelling;

(c) if notice is served on him or his agent by the local housing authority that the dwelling is overcrowded in such circumstances as to render the occupier guilty of an offence and he fails to take such steps as are reasonably open to him for securing the abatement of the overcrowding, including if necessary legal proceedings for possession of the dwelling.
A person committing an offence under this section is liable on conviction to a fine not exceeding level 2 on the standard scale and to a further fine not exceeding one-tenth of the amount corresponding to that level in respect of every day subsequent to the day on which he is convicted on which the offence continues.

Information is provided for guidance purposes only, we always recommend that you seek professional legal advice where appropriate