Elizabeth Dwomoh analyses a rare Supreme Court case on houses in multiple occupation.
KEY POINTS
- When considering the suitability of accommodation in an HMO, proper regard should be had to the proposed mode of occupation
- If a house is occupied by a group living together “cohesively”, each having their own bedroom but sharing facilities, the mode of occupation means that the shared facilities will benefit all of the occupants and may compensate for a bedroom that is slightly smaller than the recommended minimum
It is rare for a case concerning the licensing of houses in multiple occupation (HMOs) to come before the Supreme Court. However, in Nottingham City Council v Parr and another [2018] UKSC 51; [2018] EGLR 46, the court was asked to consider the scope of the power under the Housing Act 2004 (the 2004 Act) to impose conditions on an HMO licence when determining the suitability of a house for occupation.
The statutory landscape
A local housing authority is responsible for granting licences pursuant to Part 2 of the 2004 Act. When considering whether to grant a licence, an authority has a duty under section 64(3) of the 2004 Act to satisfy itself that the house is reasonably suitable for occupation by the maximum number of households or persons permitted. To facilitate compliance, section 67 of the 2004 Act permits the imposition of conditions to regulate the management, use and occupation of the house concerned.
The problem
Nottingham City Council was responsible for the licensing of HMOs in its district. Trevor Parr Associates Ltd was the owner of 44 Rothesay Avenue and 50 Bute Avenue. Dominic Parr was the managing director of Trevor Parr Associates and the manager for both properties.
In guidance issued by Nottingham, a floor space of 8m2 was designated as the minimum usable living space provision for a bedroom in single occupation. The guidance recommended a flexible approach to the application of the prescribed minimum if other pertinent features were present.
Both 44 Rothesay Avenue and 50 Bute Avenue were let to students and contained attic rooms. The attic rooms had floor spaces, when the floor-to-ceiling height was factored in, of 5.89m2 and 6.89m2 respectively. An application was made for a new HMO licence in respect of each property. Nottingham granted the HMO licences but imposed conditions prohibiting the use of the attic rooms for sleeping. Trevor Parr Associates and Parr appealed.
The First-tier Tribunal (FTT) determined that the attic spaces were suitable for use as bedrooms. In relation to 44 Rothesay Avenue, the FTT determined that the attic room could only be used as sleeping accommodation by a person in full-time education who resided in the dwelling for a maximum period of 10 calendar months over the period of a year. Nottingham appealed.
The Upper Tribunal (Lands Chamber) (the UT) dismissed Nottingham’s appeals. It noted that the essential purpose of section 67 of the 2004 Act was to ensure that an HMO was suitable for the number of persons permitted to occupy it. Further, the FTT had not acted unlawfully by making conditions that governed a particular mode of occupation by a specific category of occupants as opposed to all potential categories of occupants. The 2004 Act did not require that an HMO had to be capable of occupation by all potential occupants. Nottingham appealed again.
The Court of Appeal dismissed the appeal and imposed additional conditions, including a requirement that the bedrooms were to be let only to students engaged in full-time education.
The court found that the power to impose conditions encompassed the right to apply a condition that was defined by reference to the general characteristics and activities of an occupier. Restricting occupation to students fell within the scope of section 67 of the 2004 Act as it was a restriction on “occupation by persons”.
The Supreme Court decision
Nottingham’s grounds of appeal before the Supreme Court were twofold. First, the power to impose conditions under sections 64 and 67 of the Housing Act 2004 could not be used so as to limit the class of persons for whom an HMO was suitable. Second, the conditions imposed by the tribunals and the Court of Appeal were irrational and unenforceable.
In dismissing the first ground of appeal, the Supreme Court considered the natural meaning of the words contained in sections 64 and 67 of the 2004 Act. The words “use and occupation” found in section 67(1) of the 2004 Act were sufficiently wide to encompass the conditions imposed by the tribunals and the Court of Appeal. Those conditions simply sought to regulate the occupation of particular parts of the house by persons occupying it and that fell within the natural meaning of section 67(2) of the 2004 Act. Further, in certain circumstances, the operation of the legislative scheme depended on the personal characteristics of the occupants and their activities. When considering the suitability of accommodation in an HMO, proper regard should be had to the proposed mode of occupation.
The Supreme Court also determined that the conditions imposed were consistent with the object of the legislation. They neither removed shared student accommodation from the regulatory licensing scheme nor did they permit occupation at a lower standard for students.
In respect of the second ground of appeal, the requirement limiting occupation to 10 months in each year was deemed irrational. A room that was suitable to be occupied as sleeping accommodation for 10 months of the year was suitable for such occupation throughout the entire year.
It should be noted that the Licensing of Houses in Multiple Occupation (Mandatory Conditions of Licences) (England) Regulations 2018 came into force on 1 October 2018. The Regulations have set a floor space of 6.51m2 as the minimum usable living space permitted in an HMO for use as sleeping accommodation for one person aged over 10 years.
Elizabeth Dwomoh is a barrister at Lamb Chambers