Are you homeless if your children have to share rooms?

*The statutory definition of overcrowding is affected by subsequent court decisions. We're reviewing this article to see what updates are needed.*

"The homelessness definition ... is in fact very misleading for the public. The public thinks that homelessness is about not having any accommodation; reasonable accommodation to go to. That's not the definition.

The definition inside Government and places like Shelter is that children have to share rooms. Now for most people who are working whose children share rooms they would find that a strange definition."

Iain Duncan Smith, Secretary of State for Work and Pensions, Today Programme, 23 January 2012

"The Secretary of State said that, according to Shelter, a family where children share a bedroom would be defined as homeless. This is simply not true.

Shelter uses the same definition of homelessness as the Government, as set out in the Housing Act 1996, passed by the last Conservative Government."

Shelter, 23 January 2012

Work and Pensions Secretary Iain Duncan Smith caused a great deal of friction with homelessness charity Shelter yesterday when he offered a striking definition of homelessness on the BBC's Today programme.

On the programme, he asserted that the public's conception of what homelessness was at odds with official definitions used in government and the third sector. In fact, according to Mr Duncan Smith, the definition involves children having to share rooms.

Later that day Shelter attacked the Work and Pensions Secretary for misrepresenting their own view on what constituted 'homelessness'.

Full Fact analyses both sides of the argument.

Analysis

Shelter cite the Housing Act 1996 as the source of their definition. Examining Section 175 of that act, the definition is provided as follows:

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A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he —

(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court,

(b) has an express or implied licence to occupy, or

(c) 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.

A person is also homeless if he has accommodation but—

(a) he cannot secure entry to it, or

(b) it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it.

A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.

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It is this 'reasonableness' that the controversy rests upon. Whether or not a person can reasonably continue to occupy a household is also set out in the statute. Factors that may make it unreasonable to occupy accommodation include violence (of various kinds), a determination by a local authority or by order of the Secretary of State.

The Department for Work and Pensions (DWP) cite 'overcrowding' as another such example of unreasonable accommodation that could lead a local authority to define it as 'statutorily homeless'. As the Housing Act 2004 indicates:

"The local housing authority may serve an overcrowding notice on one or more relevant persons if, having regard to the rooms available, it considers that an excessive number of persons is being, or is likely to be, accommodated in the House in Multiple Occupation concerned"

Overcrowding is defined in Section 324 of the Housing Act 1985 as when the number of people in a dwelling contravenes a 'room standard' or a 'space standard'.

The room standard is in turn contravened when two people of opposite sexes (who are not married, cohabiting or either under the age of ten) must share the same room (which can include living rooms and kitchens).

The space standard is contravened when the number of people in a dwelling exceeds the permitted number — that number determined by the floor area of the rooms (which can again include living rooms and kitchens).

Mr Duncan Smith's claim rests on situations in which "children have to share rooms". This could either be two children over the age of ten of opposite sex (the room standard) or any number of children that breaches the precise quotas imposed by the space standard.

Channel 4's Fact Check blog points out that, since living rooms and kitchens are acceptable places for children to sleep, this can mean the family is not classed as 'homeless'.

The absence of such options is however already assumed in the statute Mr Duncan Smith's claim rests on. For two children of the opposite sex to "have to share rooms" there must be no situation in which this cannot happen. Hence, if another room is available (such as a living room) as sleeping accommodation this would not contravene the room standard.

So Mr Duncan Smith's claim, as far as overcrowding is concerned, is technically correct — albeit missing the caveats of opposite sexes and children under ten which change the precise laws that apply.

However by inferring that most people who are working "whose children share rooms" might find this definition strange, Mr Duncan Smith's claim could mislead listeners. These people would be unlikely to have children sleeping in their kitchen, and so wouldn't be defined as homeless even under his definition.

Questions also remain over whether or not statutory 'overcrowding' is synonymous with homelessness.

Shelter claim that:

"Only the most severe overcrowding, such as people sleeping in kitchens, could be potentially considered by local authorities as homeless under the statutory definition. This would not include two children sharing a room."

The DWP provided Full Fact with a Code of Guidance so we could examine the information available to local authorities when deciding upon defining homelessness. Chapter 8 of this contains the relevant information:

"Circumstances where an applicant may be homeless as a result of his or her accommodation being overcrowded should also be considered in relation to the general housing circumstances in the district. Statutory overcrowding, within the meaning of Part 10 of the Housing Act 1985, may not by itself be sufficient to determine reasonableness, but it can be a contributory factor if there are other factors which suggest unreasonableness."

So Shelter's claim that only severe overcrowding would be defined as homelessness has some credence in the fact that mere statutory overcrowding is not always sufficient and that 'other factors' often contribute, although these additional factors may not necessarily relate to the severity of the overcrowding.

Since the definitions are left to local authorities, it is difficult to judge whether individual cases of shared rooms would ever constitute homelessness without specific examples.

Conclusion

Iain Duncan Smith's claim that the definition of homelessness is that children have to share rooms seems very loose when considering all the factors involved in the defining process by local authorities and the circumstances in which shared rooms actually constitute overcrowding in the first place.

If we charitably allow that the Work and Pensions Secretary provided for cases involving kitchen and living room accommodation when he described children as "having" to share rooms, as is laid out in statute, there remains the problem that there is little evidence for this providing a sufficient proxy for determining that individuals in the said household are 'homeless'.

Furthermore, the terms in which Mr Duncan Smith makes his claim are unhelpful. Given that his technical definition would only capture a few extreme cases (if an example could be found at all), his reference to "most people who work whose children share rooms" suggests a much broader application than can be backed up.

However, without specific guidelines in the local authority code, we cannot entirely verify Shelter's claim that Mr Duncan Smith's case would never constitute a homeless definition.

UPDATE (27/01/12)

One of our readers points out that the 1985 Housing Act which we cite does not contain any specific reference to 'kitchens' as places that can be classed as accommodation. The reference originates in housing legislation from 1935 which also contained a definition of overcrowding. We understand that the criteria have not changed since then.