Housing Act 2004 – House in multiple occupation – Licensing – Appellant housing authority licensing two HMOs on terms prohibiting use of attic rooms as bedrooms – First-tier tribunal varying licences to permit use as bedrooms by person in full-time education residing there for no more than 10 months in the year – Whether such conditions permissible – Appeal dismissed
The first respondent and his company, the second respondent, were in the business of providing accommodation for students. The appellants were the housing authority responsible for licensing houses in multiple occupation (HMOs) pursuant to Part 2 of the Housing Act 2004. The appellants carried out works to two houses to create an additional bedroom in the attic space. The appellants took the view that, owing to the restricted headroom caused by the sloping ceiling, the useable living space in the attic bedrooms was less than the 8m² which the appellants regarded as the acceptable minimum bedroom size. In each case, they granted a new licence subject to a condition, imposed under section 67 of the 2004 Act, which prohibited the use of the attic room for sleeping.
The first-tier tribunal (FTT) allowed the respondents’ appeals against the appellant’s decision and granted licences in terms which permitted the use of the attic rooms as bedrooms. In the case of one of the houses, but not the other, it imposed a condition limiting the use of the attic bedroom to sleeping accommodation by a person in full-time education who resided in the dwelling for a maximum period of 10 months of the year. However, in both cases, it justified its conclusion on the ground that there were sufficient compensating features in the properties, including a reasonably sized shared living room, to make them suitable for students or other similar cohesive occupation for six people.
The appellants appealed. They contended that the FTT had been wrong in law to distinguish between different types of occupier when framing the licence conditions and that the willingness of a particular group of occupiers, such as students, to accept lower standards of accommodation should not be taken into account. They further argued that it was not permissible to impose a restriction on occupation of the relevant rooms for only 10 out of 12 months and, moreover, the restrictions were unenforceable since it would be impossible for the appellants to police them.
Held: The appeals were dismissed.
The guidance formulated by a housing authority for application by their own officers had to be applied with a degree of flexibility where the circumstances of the case so required, so that a room that fell short of the recommended size might nonetheless be capable of being taken into account as sleeping accommodation if other circumstances meant that, viewed as a whole, the house was reasonably suitable for the stated number: Clark v Manchester City Council [2015] UKUT 129 (LC); [2015] EGLR 44 applied.
The FTT had been satisfied that the respondents’ houses were suitable for six occupiers subject to the conditions it had identified. While it would be dangerous for the subjective wishes of a particular occupier or category of occupiers to be given weight in the formulation of licence conditions, since it would create a risk that individuals who were willing to accept sub-standard accommodation because of the difficulty of finding anything else might be deprived of the protection that the 2004 Act was intended to provide, it was legitimate to have regard to the suitability of an HMO for occupation by a particular category of occupiers. Certain types of accommodation might lend themselves to different styles of occupation. Section 67 specifically contemplated that different restrictions might apply to the use and occupation of particular parts of a house, with a view to ensuring that the HMO was suitable for the number of persons permitted to occupy it. There was nothing unlawful in formulating a condition applicable to a particular mode of occupation by a category of occupiers if the house was suitable for them in greater numbers than it was for a different mode of occupation.
The FTT had reached its decision on the basis that the property was one where “cohesive living” was envisaged, namely the level of shared activity and social interaction to be expected in a “shared house” situation. A “shared house” HMO was recognised in the guidance of various housing authorities as one where, although unrelated to one another, the occupiers lived in a similar way to a family. Typically, the house would be rented by a group of sharers, such as students or work colleagues, with each having their own bedroom and sharing the other facilities of the house, and with a significant level of social interaction between the occupiers. Where space standards were modified for particular modes of occupation in that way, that did not relate to the views of specific individuals but instead recognised that certain categories of occupiers might wish to occupy accommodation in a particular way. Accordingly, there was nothing unlawful in a condition that restricted the use of sleeping accommodation in an HMO to a person in full-time education, if the decision-maker was satisfied that, looked at as a whole, the HMO was suitable for the number of households specified in the licence.
Nor did the references to “cohesive living”, or the restriction in the use of the attic bedrooms to a period of 10 months in the year, render the FTT’s decision unlawful. Neither restriction was unreasonably difficult to police and, even if it had been impossible to police the 10-month restriction, the appropriate solution would have been to delete that restriction rather than permanently prohibit the use of the attic rooms as bedroom.
The appeals were determined on the written representations of the parties.
Sally Dobson, barrister
Click here to read transcript: Nottingham City Council v Parr and another
