Pursuant to section 64(3) of the Housing Act 2004 (the 2004 Act), before a local housing authority can grant an HMO licence, it must, amongt other things, be satisfied that “the house is reasonably suitable for occupation by not more than the maximum number of households or persons required [as specified in the application or decided by the local housing authority] or that it can be made so by the imposition of conditions under section 67 [of the 2004 Act].” Section 67 of the 2004 Act permitted the imposition of conditions to regulate “the management, use and occupation of the house concerned.”
In Nottingham City Council v Parr and another[2018] UKSC 51 the Supreme Court was asked to consider the applicable minimum usable living space provisions for the licensing of an HMO occupied by students and the conditions imposed upon such licenses.
The respondents let two HMOs to students. Each HMO contained attic rooms that had usable living space below 8m2. Guidance followed by the appellant recommended adoption of 8m2 as the minimum size for bedrooms. The guidance highlighted that the existence of other factors could affect the minimum requirement. The appellant granted a licence for both HMOs, but imposed a condition that the attic rooms could not be used as bedrooms.
The respondents successfully appealed to the First Tier Tribunal (FTT) against the condition imposed. The FTT deleted the appellant’s condition and substituted it with its own conditions. These were further varied by the Upper Tribunal (Lands Chamber) and the Court of Appeal upon the appellant’s unsuccessful appeals. The new conditions in effect permitted the let of the attic bedrooms to full-time students only.
The appellant’s primary ground of appeal in the Supreme Court was that the power to impose conditions under sections 64 and 67 of the 2004 Act could not be used to limit the class of persons for whom an HMO was suitable.
Upon consideration of the natural meaning of the words contained in section 67 of the 2004 Act, the Supreme Court found that they were sufficiently wide to encompass the conditions imposed by the Tribunals and the Court of Appeal. Further, they were consistent with the object of the legislation and did not permit occupation at a lower standard for students. It was proper that when considering “the suitability of accommodation in an HMO, regard should be had to the proposed mode of occupation.”
It should be noted that the Licensing of Houses in Multiple Occupation (Mandatory Condition of Licences) (England) Regulations 2018 (2018 No 616) came into force on 1 October 2018. The regulations introduced 6.51m2as the minimum usable living space permitted in an HMO for use as sleeping accommodation for one person over 10 years old.
Elizabeth Dwomoh is a barrister at Lamb Chambers