Housing Act 2004 – House in multiple occupation – 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 appellants were a housing authority responsible for licensing houses in multiple occupation (HMOs) pursuant to Part 2 of the Housing Act 2004. The respondents, who were in the business of providing student accommodation, 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 they 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 that decision and granted licences that 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. 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. That decision was subsequently upheld by the Upper Tribunal: see [2016] UKUT 71 (LC); [2016] PLSCS 53.
The appellants appealed. They contended that the imposition of a condition requiring an attic bedroom to be occupied by a full-time student was unlawful. They submitted that the licensing regime was concerned with the physical characteristics of the property in question, not the personal characteristics of the potential occupiers; the condition therefore fell outside the power conferred by the Act so far as it effectively allowed students to live in sub-standard accommodation. They also argued that the condition would not achieve its intended purpose of securing “cohesive living” and was incapable of effective enforcement.
Held: The appeal was dismissed.
(1) The HMO regime licensed a “house” by reference to a permitted maximum number of occupiers. That permitted maximum was not, in itself, limited to any particular type of occupier. However, there was nothing intrinsically inimical to the HMO regime in investigating the general characteristics and activities of an occupier. Since the words of section 67(2)(a) on their face included the power to impose conditions restricting the use or occupation of an HMO “by persons occupying it”, there was no context that would exclude a description of the class of persons entitled to occupy specified parts of the HMO. A restriction of occupation to “occupation by students” was a restriction on “occupation by persons” in that sense.
(2) There was nothing in the legislation to prevent the availability of communal living areas from compensating for the inadequacy of the private space provided by an undersized bedroom. The FTT and the UT were both satisfied that, if inhabited by a student able to share communal living space within the HMO, the accommodation would not be sub-standard. Since there were no prescribed standards for the size of bedrooms, that was a value judgment that they were entitled to make and disclosed no error of law.
(3) The condition was not ineffective or incapable of enforcement. While the FTT had regarded the house as suitable for student accommodation because of its expectation that there would be “cohesive living”, it had not attempting to define that expression or included it in any condition intended to have binding legal effect. The phrase appeared to have been taken from a publication by DASH (Decent and Safe Homes), referring to HMOs where occupants lived as a cohesive group, and there was nothing to suggest that such a description of one particular category of HMOs was unworkable in practice.
Moreover, the regime for the regulation of HMOs was designed to ensure that adequate facilities were available for occupiers of HMOs but it was not designed to compel occupiers to use them. It therefore did not matter that an individual occupier of an attic room might not wish to participate in “cohesive living”.
The condition as it stood had certain problems in that it did not in fact require any part of the HMO to be available for communal living, nor did it require the remaining bedrooms to be let to students. Thus, while the attic bedroom might be let to a student, the remaining bedrooms could be let to an entirely disparate group of other people, with whom the student in the attic might not be able to live cohesively. However, those issues could be overcome by the imposition of suitable conditions, which the respondents had now accepted, requiring a sitting room and kitchen/diner to be kept available for communal use and prohibiting the letting of any bedrooms to persons other than students engaged in full-time education.
The policing of the condition should not be any more difficult than policing adherence to conditions that prevented a building from being an HMO in the first place, or investigating whether someone was occupying a putative HMO as their main residence. If the condition was not enforced by the manager of the house, that was likely to lead to a revocation of the licence, which was sanction enough.
Andrew Arden QC and Annette Cafferkey (instructed by Nottingham City Council Legal Services) appeared for the appellants; Robert Fookes (instructed by direct access) appeared for the respondents.
Sally Dobson, barrister
Click here to read transcript: Nottingham City Council v Parr and another
