Housing – House in multiple occupation – HMO declaration – Housing Act 2004 – Appellant local authority serving HMO declaration on respondent under section 254 of 2004 Act – Declaration stating that semi-detached house an HMO – First-tier tribunal revoking declaration after finding property unoccupied on inspection – Whether FTT erring in having regard only to position at date of inspection – Whether applying wrong test for making of HMO declaration – Appeal allowed
In October 2014, the appellant local authority served a declaration on the respondent, pursuant to section 255 of the Housing Act 2004, stating that a semi-detached house which the respondent owned in Hereford was a house in multiple occupation (HMO) within the meaning of section 254 of that Act.
The respondent appealed to the first-tier tribunal (FTT), which inspected the property in February 2015 and saw no evidence that anyone was resident at that time. It concluded that the property was not an HMO and revoked the declaration accordingly.
The appellants appealed. They contended that the FTT should have determined the matter by reference to the evidence available to the appellants at the time when they made the declaration, rather than considering the position solely at the date of its inspection, by which date the house had been cleared.
They further contended that the FTT had failed to take into account the test for an HMO declaration, as set out in section 255, which was whether the use and occupation by persons who did not form a single household constituted a “significant use”, rather than the sole use, of that accommodation; moreover, it had overlooked the presumption in section 260, applicable where an issue arose in proceedings as to whether the significant use test was met, that significant use was to be presumed unless the contrary was shown.
Held: The appeal was allowed.
(1) An appeal against an HMO declaration was by way of rehearing. The FTT had to look at the evidence, but it could also take into account new evidence of which the local authority were unaware: see section 255(10)(b). The FTT was looking at matters afresh, but what it was looking at was the local authority’s decision. It could confirm or reverse that decision, and, if it reversed the decision, it could then revoke the HMO declaration: see section 255(11).
The FTT had erred by failing to follow the path laid out by section 255(11). In formal terms, it had erred by revoking the HMO declaration without first confirming or reversing the local authority’s decision. More fundamentally, it had erred by making a decision solely on the basis of the physical state of the property in February 2015 rather than taking into account all the evidence available to the local authority in addition to its own later inspection. For the FTT to make its decision solely on the basis of its inspection made a mockery of the protection that parliament had intended to create, by making it too easy for a landlord simply to clear out the house the day before an inspection and by increasing the likelihood of hasty and perhaps unlawful evictions.
(2) The FTT had also failed to take into account that the test for an HMO declaration was significant use, not sole use. The fact that it made its decision on the basis of a “spot check” indicated that it did not have in mind that the HMO declaration would be valid if the significant use test was met, even if the house stood empty on one or more days during the year. Had the FTT had that test in mind, it might also have been aware of the presumption in section 260, under which the starting point of the appeal had to be that the significant use was met, unless the contrary was shown. The contrary could not be shown simply by the fact that, on one particular occasion, the house was unoccupied. It followed that the FTT’s decision could not stand and the appeal against the HMO declaration fell to be redetermined.
(3) Redetermining that matter, the proper conclusion was that the HMO declaration should be confirmed. That conclusion took into account the evidence available to the appellant at the date of the declaration, plus evidence that was not available to it, including what was seen by the FTT in the course of its inspection, and started from the presumption that the significant use condition was met. The fact that the property was empty at the time of the FTT’s inspection did not displace that presumption since the change might have been only temporary. While the respondent did not dispute that the property was an HMO prior to the February 2015 inspection, the outcome of the case did not depend on that agreement; the appellants’ decision that the property was an HMO was founded on abundant evidence indicating that the conditions set out in section 254(2), the “standard test”, as modified by section 255 and the “significant use” condition, were met. If the use of the property had changed since the date of the HMO declaration, to the extent that the significant use condition was no longer met, the respondent could ask the appellants to revoke the HMO declaration and, if they refused, he could appeal to the FTT.
Christopher Lane (instructed by the legal department of Herefordshire Council) appeared for the appellants; the respondent did not appear and was not represented.
Sally Dobson, barrister
Click here to download the transcript of Herefordshire Council v Rohde
