Martin Rodger QC, Deputy President
Where a property has three or more storeys and five or more occupiers sharing facilities a HMO licence is required.
Where a licence is required, the local authority can impose conditions with the licence.
The landlord in this Upper Tribunal case was in the business of providing accommodation to students and this appeal concerned two properties that required a HMO licence.
In both properties, works had been carried out by the landlord to convert the attic rooms into additional bedrooms.
The local authority considered that 8m2 is the minimum acceptable size for a bedroom in an HMO and when calculating the floor area any floor to ceiling height of less than 1.53m would be disregarded.
In the first property, the attic room had a total floor space of 9.75m2 but when the floor to ceiling height was factored in, the total floor space was 5.89m2.
In the second property, the total floor space of the attic room was approximately 11m2 but with a minimum of 1.53m floor to ceiling height, the floor space was 6.89m2.
Both rooms were therefore below the local authority requirement of a minimum 8m2. As such, the local authority imposed a condition in both licences that the attic rooms were not to be used for sleeping.
The landlord successfully appealed to the First-tier Tribunal (FTT) where the condition prohibiting the use on one of the properties was substituted with a condition that:
“The second floor front bedroom may only be used for sleeping accommodation by a person engaged in full-time education and who resides in the dwelling for a maximum period of 10 calendar months over a period of one year.”
The reason given for allowing sleeping in the rooms was:
“The area of the relevant bedroom having a height of less than 1.53m was utilised to accommodate a desk and for storage. The relevant room includes a double bed, desk, chest of drawers, bedside table, bookshelves and a built-in wardrobe. The pitch of the roof slope was such that it appeared possible to use the desk without undue risk of collision and any such risk could be reduced further by placing a chair in the area beneath the pitched roof window thereby eliminating the risk of collision when rising from the chair. The head of the bed was fitted under that part of the room with reduced height. A risk of collision could be avoided by turning the bed through 180o. The risk of collision when changing the bed linen could be avoided by pulling the bed out of the area with reduced headroom prior to performing that task.”
Both properties were almost identical in their decisions.
The local authority appealed to the Upper Tribunal (UT), contending that the FTT had no power to limit occupation to specified descriptions of a person.
The appeal was dismissed. There was nothing objectionable in saying that a particular kind of property was suitable for a particular category of occupier. Section 67 Housing Act 2004 allowed conditions relating to the “use and occupation” of the property; that was sufficient to include a condition controlling the descriptions of occupier.
I am satisfied that there is nothing unlawful in a condition restricting the use of sleeping accommodation in part of an HMO to a person in full-time education, if the decision maker is satisfied that, looked at as a whole, the HMO is suitable for the number of households specified in the licence. An alternative condition, perhaps more closely reflecting the reason for permitting the use of a room smaller than would normally be acceptable, might require that the occupiers be members of a group who intend to share the communal living space, but I do not think the reference to students makes the condition unlawful.
… Nor do I consider that … the restriction in the use of the bedroom to a period of 10 months in the year are unlawful. …
Update – April 2017
The local authority further appealed this decision to the Court of Appeal and have lost their appeal. In Nottingham City Council v Dominic Parr Trevor Parr Associates Ltd  EWCA Civ 188 The Court of Appeal upheld the decision of the Upper Tribunal subject to additional conditions imposed in the licence ensuring only students would be living there:
i) Requiring a sitting room and kitchen/diner to be kept available for communal use, and
ii) Prohibiting any bedrooms to be let to persons other than students engaged in full-time education,
Comment on the room sizes
Dealing with room sizes and local authority guidance were commented on in the case:
In Clark v Manchester City Council (2015) UKUT 0129 (LC) the Tribunal confirmed that a local housing authority was entitled to give guidance on the factors it would take into account in determining whether a house was reasonably suitable for use as an HMO by a certain number of occupiers, including guidance which identified room dimensions which would ordinarily be regarded as too small to provide adequate sleeping accommodation. The Tribunal nevertheless drew attention to the over-arching statutory consideration that the HMO as a whole must be reasonably suitable for occupation by not more than the maximum number of households or persons specified, and at paragraph 49 said that:
“Such guidance should not exclude the possibility that a room which falls short of the recommended size will nonetheless be capable of being taken into account as sleeping accommodation if other circumstances mean that, viewed as a whole, the house is reasonably suitable for the stated number. Guidance on how space with restricted head height, such as beneath a slopping ceiling, ought to be treated is also appropriate, but again subject to the possibility of exceptions.”
In considering the weight to be given to such guidance, and having regard to the fact that an appeal to the F-tT proceeds as a re-hearing, the Tribunal suggested, at paragraph 53, that:
“In every case the views of the local housing authority will be relevant and merit respect, but once the tribunal has carried out its own inspection and considered all of the characteristics of the property, including the size and layout of individual rooms and any compensating amenities it will be in a position to make its own assessment of the suitability of the house for the proposed number of occupiers.”
England Knowledge Base
This article is also linked from our landlord handbook
Wales Knowledge Base
This article is also linked from our landlord handbook