Housing Act 2004 – House in multiple occupation – Appellant using property as HMO for five people pursuant to licence granted by respondent council under Part 2 of 2004 Act – Respondents refusing application to increase permitted number of occupants to six – Decision based on respondents’ published standards for minimum room size – First-tier tribunal confirming decision on appeal – Whether FTT erring in approaching appeal as review rather than rehearing – Whether respondents entitled to adopt minimum space requirements – Appeal allowed
The appellant held a licence, granted by the respondent council pursuant to Part 2 of the Housing Act 2004, to use of a Victorian terraced house in Manchester as a house in multiple occupation (HMO) for not more than five occupants. In 2013, he applied to the respondents to increase the permitted number to six occupants, with the extra occupant to be accommodated in a room on the first floor which had been altered by the addition of a wooden staircase leading up to a sleeping platform in an area previously forming part of the second-floor attic. The platform was wide enough for a king-size mattress but had restricted headroom, and the new staircase had reduced the usable area of the first-floor room to a little over 4m2.
The respondents’ rejected the application on the grounds that the additional room had insufficient usable floor space by reference to their published “Houses in Multiple Occupation Guidance and Amenity Standards”. They considered that the sleeping platform was unusable in its entirety, having a height below than the 5ft standard applied in cases of sloping roofs and ceilings, and they noted that the addition of the staircases to the first-floor room had reduced its usable area to nearly 2m2 less than the respondents’ minimum standard of 6.51m2, which they had derived from the provisions of the Housing Act 1985 on overcrowding. The appellant appealed to the first-tier tribunal (FTT), which dismissed the appeal and confirmed the respondents’ decision. The FTT found that the respondents were entitled to adopt minimum room sizes and had reasonably concluded that the additional room failed to meet them.
The appellant appealed to the Upper Tribunal. He contended that the FTT had wrongly treated the appeal as a review rather than as a rehearing. He also argued that the respondents were not entitled to adopt fixed minimum space requirements for bedrooms in circumstances where none were mentioned in the prescribed standards set by Schedule 3 to the Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006, made pursuant to section 65 of the 2004 Act; instead, the question was simply whether the house was reasonably suitable for occupation by the relevant number of people within the meaning of section 64(3)(a) of the 2004 Act.
Held: The appeal was allowed.
(1) An appeal against a local housing authority’s refusal to vary a licence granted under Part 2 of the 2004 Act was governed by the procedures laid down in Part 3 of Schedule 5, under which the appeal was to be conducted by way of rehearing. Although the word “rehearing” could have a range of meanings, for the purposes of Part 2 of the 2004 Act it meant a complete rehearing but one which did not disregard entirely the decision of the local housing authority. Where an issue depended on weighing and assessing a number of different factors, reasonable people might well arrive at different conclusions. The FTT, with its relevant experience and composition, was well equipped to undertake the task of resolving such issues. On a rehearing, an appellant was entitled to expect that the FTT would make up its own mind, although, in doing so, the FTT was entitled to have regard to the views of the local housing authority whose decision was under appeal. How influential those views would be was likely to depend on the subject matter.
In the instant case, the FTT had erred in simply considering whether the respondents had been entitled to reach the decision which they had reached. That was a different exercise from making up its own mind on whether the property was reasonably suitable for occupation by six people. The appeal was therefore allowed on that ground and the matter remitted to the FTT for reconsideration: Reynolds v Brent London Borough Council [2001] EWCA Civ 1843; [2001] PLSCS 259 applied.
(2) Compliance with the standards prescribed by Schedule 3 to the 2004 Act was an essential precondition of suitability for occupation by a particular number of households or persons but might not in itself be sufficient to render the house suitable. It was permissible for a local housing authority to give guidance on what factors they would take into account in determining whether a house was reasonably suitable for use as an HMO by a certain number of occupiers. The size of the accommodation was a relevant factor in any such assessment and there was no reason why guidance should not identify a specific room size which would ordinarily be regarded as too small to provide adequate sleeping accommodation. Such guidance should not exclude the possibility that a room which fell short of the recommended size would nonetheless be capable of being taken into account as sleeping accommodation if, owing to other circumstances, the house viewed as a whole was reasonably suitable for the stated number. Guidance on how space with restricted head height, such as beneath a sloping ceiling, should be treated was likewise appropriate subject to the possibility of exceptions.
While there was nothing objectionable in the respondents’ adopting a minimum room size of the 6.5m2 as guidance by reference to the 1985 Act, it was important to recognise that, for the purpose of HMO licensing, it had no statutory force in its own right. It should not be seen as a statutory minimum with the same force as the prescribed standards under section 65 of the 2004 Act and the respondents’ officers would be wrong to regard the minimum space standard as part of the “legislative framework” from which they could not depart in any circumstances. The guidance adopted by the respondents was not a substitute for consideration of whether a specific house was reasonably suitable for a particular number of occupiers.
On an appeal to the FTT, the views of the local housing authority would be relevant and merit respect but, once the FTT had carried out its own inspection and considered all the characteristics of the property, including the size and layout of individual rooms and any compensating amenities, it would be in a position to make its own assessment of the suitability of the house for the proposed number of occupiers.
Archie Maddan (instructed by Anthony Gold) appeared for the appellant; Paul Whatley (instructed by the legal department of Manchester City Council) appeared for the respondents.
Sally Dobson, barrister
Click here to read transcript: Clark v Manchester City Council
