UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2015] UKUT 129 (LC)

UT Case Number: HA/9/2014

 

 

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

 

 

HOUSING – house in multiple occupation – whether appeal from decision of local housing authority to First-tier Tribunal to be a review or re-hearing – proper approach on rehearing - whether local housing authority entitled to impose mandatory minimum space requirement for bedrooms in HMOs  – Part 2, Housing Act 2004 – appeal allowed

 

 

IN THE MATTER OF AN APPEAL AGAINST A DECISION OF THE FIRST TIER TRIBUNAL (PROPERTY CHAMBER)

 

BETWEEN

DHUGAL CLARK

Appellant

and

 

MANCHESTER CITY COUNCIL

Respondent

 

 

Re: 40 College Road,

Whalley Range,

Manchester

 

 

Martin Rodger QC, Deputy President

 

Sitting at: Royal Courts of Justice, Strand, London WC2A 2LL

on

17 March 2015

 

Archie Maddan instructed by Anthony Gold, solicitors, for the Appellant

Paul Whatley, instructed by the City Solicitor, Manchester City Council, for the Respondent

 

© CROWN COPYRIGHT 2015

The following cases are referred to in this decision:

 

London Borough of Brent v Reynolds [2001] EWCA Civ 1843

Townson v Portsmouth City Council CHI/OOMR/HML/2007/0001

 

 

DECISION

1.             Is a local housing authority entitled to adopt mandatory minimum space standards for bedrooms in houses in multiple occupation? 

2.             That is the most significant of the questions raised by this appeal from a decision of the First-tier Tribunal (Property Chamber) (“the F-tT”) given on 8 January 2014 in which it rejected an appeal by Mr Clark against a decision of the respondent, Manchester City Council (“the Council”).  The Council had refused to vary the terms of a licence previously granted to Mr Clark under Part 2 of the Housing Act 2004.  The licence permitted the use of 40 College Road, Whalley Range, Manchester as an HMO for not more than 5 occupants, but Mr Clark had applied to increase this number to not more than 6.  The Council rejected the application on the grounds that the additional room which Mr Clark considered suitable for occupation had insufficient usable floor space. The F-tT confirmed that decision. 

3.             Permission to appeal was granted by the Tribunal.

The facts

4.                  There is no dispute over the facts relevant to the appeal.  40 College Road (“the Property”) is a mid-terrace Victorian house comprising a cellar, ground floor and two upper floors.  The cellar has been converted for occupational use as a bedroom with a bathroom adjoining.  On the ground floor is a fairly large communal living room, a kitchen and a w.c.  There are 4 rooms on the first floor, three of which are currently used as bedrooms, together with a further bathroom/w.c.  The second floor comprises one further bedroom with en-suite facilities.  The whole Property is currently let by Mr Clark to a group of tenants, and there is no disagreement that it is an HMO subject to licensing under Part 2 of the Housing Act 2004.

5.             The room with which this appeal is particularly concerned is located at the front of the Property on the first floor.  The F-tT inspected the room and said that, as originally constructed, it had been a typical “box room”.  The room has good head height and in its original configuration it had a single window and a usable floor area of 5.8m².  The room has been altered by the appellant to incorporate within it an area at a higher level which originally formed part of the second floor attic, and which is located above an adjoining first floor bedroom.  Access to this upper area has been created by installing a timber staircase within the room itself; the staircase crosses in front of the window and reduces the usable floor space within the room to 4.155m² if the whole of the area beneath the staircase is omitted from that assessment (the area may nonetheless be large enough to accommodate a small desk). 

6.             At the top of the timber staircase is a small landing from which it is possible to step up into the former attic space.  This area is intended for use as a sleeping platform or “bed deck”.  It is as wide as the king size mattress which Mr Clark has provided for the use of the intended occupier and deep enough to provide some storage space beyond the head of the mattress.  The area is immediately beneath the pitched roof of the Property and the available headroom is severely restricted.  Although the upper area adds a further 5.94m² of floor space to the room, most of that area has clearance from the ceiling of less than 152 cm.  The area with headroom (if it can be called that) of greater than 152 cm is restricted to a strip 16 cm wide running the length of the area on one side.  A velux window has been installed in the slopping roof to provide natural light to the upper area.

7.             A licence for the use of the Property as an HMO was first granted to Mr Clark in 2007 for a term of five years.  The original licence recorded that the Council was satisfied that the Property was reasonably suitable for occupation by not more than 5 occupants and it was renewed in the same terms in 2012.  Having completed the alterations described above, on 16 March 2013 Mr Clark applied for a variation of the terms of the licence to increase the maximum permitted number of occupants to 6.

8.             Having re-inspected the Property the Council issued a decision on 6 September 2013 refusing Mr Clark’s application to vary the licence.  It gave the following reasons:

“The room in question (first floor flat of building) contains “upper level bed space” which the applicant has created by building a staircase within the room leading into a roof void.  The “upper level bed space” has a strip of 16cm wide x 2m long which has a head height of 5ft or more.  The rest of the “upper level bed space” has a head height below 5ft and therefore, applying Manchester City Council’s HMO standards regarding space which state that vertical height by reason of slopping roof/ceiling less than 1.25m (5 ft) is not included as useable as floor space, the area is unusable.  The strip of 16cm x 2m above 5ft is also considered to be unusable as floor space as there are no possible uses for such a space.  Therefore it is considered that there is no usable space in the upper level.

The staircase itself impinges upon the lower level usable floor space leaving an actual of 4.155m² …. The actual floor space available for use by the occupant would be 4.155m² which is 1.96m² below the agreed minimum standard as set out by the Housing Act 1985 size for a bedroom.”

9.             Mr Clark appealed against the Council’s decision on the grounds that it was unreasonable to base its refusal on the fact that the room failed to meet a minimum space requirement of 6.51m².

The relevant legislation

10.         Part 2 of the Housing Act 2004 introduced a new scheme for the licensing of HMOs by local housing authorities.  With immaterial exceptions every HMO to which Part 2 applies is required by section 61(1) to be licensed.  A licence authorises occupation of the HMO by not more than the maximum number of households or persons specified in it (section 61(2)). 

11.         Before it may grant a licence a local housing authority must be satisfied of the four matters referred to section 64(3).  The first of those matters is:

“(a) That the house is reasonably suitable for occupation by not more than the maximum number of households or persons mentioned in sub-section (4) or that it can be made so suitable by the imposition of conditions under section 67.”

Sub-section 4 provides that the maximum number of households or persons for whom an HMO may be licensed is either the maximum number specified in the application, or some other maximum decided by the authority.  The other matters of which the authority must be satisfied concern the suitability of the proposed licence holder and the intended management arrangements.

12.         Section 65 makes provision for prescribed standards by which the suitability of a house for multiple occupation is to be determined.  These are standards prescribed by regulations made by the appropriate national authority, which in the case of England is the Secretary of State.  Section 65(4) provides that the standards that may be prescribed include standards as to the number, type and quality of: sanitary and washing facilities; areas for food storage, preparation and cooking; laundry facilities; and other facilities or equipment which should be available in particular circumstances.  This list is inclusive and it is therefore clear that standards may be prescribed by the appropriate national authority dealing with other aspects of the suitability of a house for multiple occupation.

13.         The power to prescribe standards has been exercised in England by Schedule 3 to the Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006.  As the F-tT pointed out, the prescribed standards make no mention of a minimum space requirement for bedrooms or for other rooms within an HMO.

14.         Compliance with the prescribed standards is an essential precondition of suitability.  By section 65(1) a local housing authority cannot be satisfied that a house is reasonably suitable for occupation by a particular number of households or persons if they consider that it fails to meet prescribed standards for occupation by that number. 

15.         While compliance with the prescribed standards is necessary, it may not be sufficient in itself to render a house suitable.  That is clear from section 65(2) which provides that even if an authority is satisfied that the prescribed standards are met, it may decide that the house is nonetheless not reasonably suitable for occupation by a particular number of households or persons.

16.         A licence granted under Part 2 of the 2004 Act may also include such conditions as a local housing authority considers appropriate for regulating the management, use and occupation of the house concerned, and its condition and contents (section 67(1)).

17.         So far I have considered only Part 2 of the 2004 Act.  Part 1 of the Act is concerned with housing standards and introduced a new housing, health and safety rating system for assessing the condition of residential premises, which evaluates the potential risk to health and safety from any deficiencies identified in dwellings using objective criteria.  These criteria enable the identification of specific hazards by reference to their seriousness. More serious hazards are classed as category 1, with lesser hazards as category 2.  Local housing authorities are under a duty to take action when they become aware of the existence of a category 1 hazard, and have power to take action in relation to category 2 hazards.  Such action may include the service of an improvement notice requiring work to be done, or a prohibition notice preventing the use of premises as housing.

18.         The HMO licensing regime in Part 2 of the 2004 Act takes account of the housing standards in Part 1 in a number of places.  In particular, section 55(5) imposes a general duty on every local housing authority to satisfy themselves, as soon as is reasonably practicable, that there are no Part 1 functions which ought to be exercised by them in relation to premises in respect of which an application has been made for an HMO licence.  Section 67(4)(a) stipulates that in general an authority should seek to identify, remove or reduce category 1 or 2 hazards in a house for which it has been asked to grant an HMO licence by exercising its powers under Part 1 and not by imposing licence conditions.

19.         An appeal against a decision of a local housing authority to refuse to vary a licence granted under Part 2 of the 2004 Act is governed by procedures in Part 3 of Schedule 5.  By paragraph 32(1) the licence holder may appeal to the relevant tribunal against a decision by the local housing authority to refuse to vary or revoke a licence.  By paragraph 34(2) such an appeal is to be by way of re-hearing, but may be determined having regard to matters of which the authority were unaware.  The tribunal’s powers on such an appeal are to confirm, reverse or vary the decision of the local housing authority and the tribunal may direct the authority to grant a licence to the applicant on such terms as it directs.

20.         Part X of the Housing Act 1985 is also relevant to this appeal.  It is concerned with overcrowding of single dwellings, an expression defined in section 324.  A dwelling is overcrowded for the purposes of Part X if the number of persons sleeping in the dwelling contravenes either the room standard specified in section 325 or the space standards specified in section 326.  The room standard is not relevant to this appeal.  The space standard is contravened when the number of persons sleeping in a dwelling is in excess of the permitted number, having regard to the number and floor area of the rooms available as sleeping accommodation.  In ascertaining the permitted number, each room with a floor area of more than 70 sq ft but less than 90 sq ft is taken to be capable of providing sleeping accommodation for one person.  A room of more than 50 sq ft and less than 70 sq ft is taken to be capable of providing sleeping accommodation only for a child under ten.

The Council’s standards

21.         The Council has published a document entitled “Houses in Multiple Occupation Guidance and Amenity Standards”.  The introduction to the document describes the standards which it sets out as being based on legislative requirements and relevant guidance as well as on the Council’s own expectations of HMOs in the city.  The intention of the document is “to provide landlords and tenants with guidance on the City Council’s expectations and its interpretation of legislation”.  The introduction includes the following statement to which Mr Whatley drew particular attention:

“It may be that you wish to vary one or more of the standards because your property’s circumstances mean a different solution would work better.  Providing the solution is within the legislative framework and provides tenants with a safe home and a better quality product, wherever we can Manchester City Council may adopt a flexible approach in discussion with a landlord, providing discussions take place ahead of any licensing inspection.” 

22.         Section 5 of the document deals with space standards.  It begins with a categoric statement that “room sizes must comply with the standards set out below”.  Measurement criteria are described which include that “the calculation of room size only takes into consideration the part of the room where the ceiling height is greater than 1.5m”, although later a figure of 1.525m or 5 feet is specified.  “Recommended minimum room sizes for HMOs” are then stipulated, with 6.5m² being given as the “minimum standard” for bedrooms for 1 person for whom separate living space is also provided elsewhere in the dwelling.  If no such separate living space is provided a bedroom must satisfy a minimum standard of 10 m².  These minimum standards for room sizes are not of the Council’s own invention, nor are they of modern origin, having appeared first in the Public Health Act 1936.

The F-tT’s decision

23.         The F-tT directed itself in paragraph 18 of its decision that an appeal against a decision of a local housing authority to refuse to vary a licence under Part 2 of the 2004 Act is by way of a rehearing.  It then approached the appeal by asking itself a number of specific questions.

24.         In paragraph 20 it said that the first issue for it to determine was “whether the Council may legitimately impose a minimum space requirement for a bedroom when deciding whether a house is reasonably suitable for occupation by a particular maximum number of households or persons”.  Referring to section 65(2) of the Housing Act 2004 the Tribunal said that local housing authorities were not restricted to considering the statutory prescribed standards when addressing the question of suitability of premises.  The prescribed conditions were an “irreducible minimum” but an authority was entitled to require additional standards to be met.  Those standards ought to be relevant to the question of suitability, and should be “reasonable and proportionate in their terms”. In the judgment of the F-tT, a standard which limited the maximum occupation of an HMO by reference to the number of rooms of a sufficient size to be separately let as bedrooms was plainly one which satisfied that requirement. 

25.         Having thus concluded that the adoption of a minimum space requirement was in principle legitimate, the F-tT formulated a second question, namely, “whether the Council’s minimum space requirement of 6.5m² for a single-occupancy bedroom in an HMO is itself reasonable and proportionate.”

26.         The F-tT explained that, although in its published guidance on standards in HMOs the basis for the Council’s adoption of a minimum area of 6.5m² was not explained, in its evidence the Council referred to that area as “the national minimum size required for a bedroom as set down in Part 10 of the Housing Act 1985.”  As the F-tT pointed out, Part X of the Housing Act 1985 is not concerned with the licensing of HMO’s but rather with the law on overcrowding of dwellings.  Under section 326 of the 1985 Act a room which has a floor area of between 70sq ft (equivalent to 6.51m²) and 90sq ft is notionally capable of being occupied by one person.

27.         After identifying the basis of the Council’s standard the F-tT then made its own assessment of that standard in paragraph 27 of its decision, as follows:

“A dwelling is not necessarily overcrowded for the purposes of the 1985 Act when a room with a floor area of less than 70sq ft is used as a bedroom… nevertheless, the law on overcrowding – and the provisions of section 326 of the 1985 Act in particular – do provide a clear statutory indication that it is undesirable for smaller rooms to be used as bedrooms.  It is clear that, in defining its space standards for the purposes of each HMO licensing application, the Council has adopted a minimum size requirement for a bedroom of 6.5m², and has done so by analogy with the law on overcrowding.  In our judgment this is a permissible approach to take, and one which produces a requirement which is reasonable and proportionate.”

28.         Its second question having been answered affirmatively, the next question the F-tT posed for itself (in paragraph 28) was “whether the room does indeed fail to meet the Council’s minimum size requirement”.  It approached this issue by considering Mr Clark’s objections to the Council’s method of measuring the available space. It rejected Mr Clark’s suggestion that the useable floor area of the upper level should be calculated by reference to its average ceiling height, rather than by reference to the Council’s approach of ignoring space with clearance of less than 5ft.  It found that “for the reasons set out in the Council’s decision, the upper level bed space should not be included in the calculation of the floor area of the room”. It also rejected his argument that the area beneath the newly installed staircase ought to be regarded as useable, in particular where the headroom exceeded 5ft.  The F-tT considered that it was self-evident that the staircase structure had reduced the floor area which would have otherwise been available and “the Council were right to take this into account.”  In paragraph 31 of its decision the Tribunal rejected that Mr Clark’s criticism of the Council’s measurement methods, as set out in its standards document, and described its approach as “a reasonable one.” 

29.         Finally the F-tT found in paragraph 32 that there was no evidence to support Mr Clark’s assertion that the design of the alterations had been agreed in advance with the Council.  The decision then stops rather abruptly, without drawing any further conclusions. These had already been stated at the outset when the F-tT recorded that the Council’s decision to refuse to vary the licence was confirmed and the appeal was accordingly dismissed.

The appeal

30.         On behalf of the appellant Mr Madden advanced four grounds of appeal.

31.         First, he argued that the F-tT had not undertaken a rehearing of the application, as required by paragraph 34(2) of Schedule 5 to the Act, but rather had carried out a review in order to satisfy itself that the approach taken by the Council had been permissible. 

32.         Secondly, Mr Madden contended that the Council’s adoption of mandatory local standards for room sizes was unlawful, and that the F-tT had been in error in determining the appeal by reference to those standards.

33.         Thirdly, it was suggested that by applying the Council’s standards the F-tT had failed to assess the room itself or properly to take account of the space which it provided.

34.         Fourthly, Mr Madden said that the F-tT had failed to make an assessment of the suitability of the Property as a whole for occupation by six people, and had confined itself to considering whether the room satisfied the Council’s space standards without having regard to the extent of the additional living space available to an occupier in the common areas of the Property.

35.         For the Council Mr Whatley was inclined to accept that the F-tT had expressed itself in language suggesting it was undertaking a review of the Council’s decision rather than a rehearing, but suggested that the conclusion it had reached was obviously correct and that no purpose would be served by remitting the application for further consideration.  The F-tT had inspected the Property and had been correct to have regard to the Council’s published standards as the appropriate measure of the suitability of the room.  Mr Whatley was particularly concerned to defend the Council’s right to adopt its own local standards.

Issue 1: Did the F-tT undertake a rehearing of the application?

36.         Mr Madden submitted that F-tT had failed to undertake a rehearing of the application, which would have involved considering for itself whether the Property was reasonably suitable for occupation by six people, and had instead undertaken a review of the legality of the Council’s policy on room sizes and the application of that policy to the Property.  Having satisfied itself that the Council was entitled to adopt minimum room sizes the F-tT’s had approached its task by simply applying that policy, which led inevitably to the rejection of the appeal.  It was not suggested by the appellant that room size was not a relevant consideration, but the F-tT’s task had been to make its own determination, starting afresh with a blank sheet of paper, and to address the question identified in section 64(3)(a) of the 2004 Act of whether the house was reasonably suitable for occupation by 6 people.

37.         The description of an appeal as being by way of a rehearing is capable of having a range of meanings.  There is a discussion of that range in the judgment of May LJ in E I Dupont de Nemours & Co v S T Dupont [2006] 1 WLR 2793, at [84]-[98].  At one end of the spectrum a rehearing “in the fullest sense of the word” will involve the appellate decision maker treating the matter as though it arises for consideration for the first time, with the opportunity to rely on fresh evidence, unconstrained or restricted by the decision under appeal.  At the other end of the scale a rehearing can be much closer to a review. 

38.         Guidance on the proper approach to be taken by a tribunal on an appeal under Part 2 of the 2004 Act can be found in London Borough of Brent v Reynolds [2001] EWCA Civ 1843, a decision of the Court of Appeal on the provisions relating to HMO registration schemes in Part XI of the Housing Act 1985 (which have been repealed and replaced by Part 2 of the Housing Act 2004).  The appeal concerned a local housing authority’s decision that an applicant for the registration of two HMOs under section 348 of the 1985 Act was not a fit and proper person to manage them.  The applicant exercised his right to appeal to the county court which was empowered by section 348(4) to confirm, reverse or vary the decision of the authority.  The judge in the county court dismissed the appeal, and Mr Reynolds appealed to the Court of Appeal. 

39.         The 1985 Act contained no provision equivalent to paragraph 34(2) of Schedule 5 to the Housing Act 2004 that an appeal from a decision of the local housing authority is to be “by way of re-hearing”.  In paragraph 16 of his judgment, with which the other members of the Court of Appeal agreed, Buxton LJ considered the nature of the appeal to the county court, saying this:

“Mr Arden QC, who appeared before us for Brent, accepted that the appeal was a complete rehearing.  Accordingly, the judge hears evidence and makes up his own mind on the facts; and his task is to make his own decision on the application, in place of that made by the LHA, and not merely to act as a court of review of that LHA decision.  That said, however, the county court’s jurisdiction is subject to the very significant condition that the court should pay great attention to any views expressed by the LHA, and should be slow to disagree with it.  That principle is to be found in the judgments of the majority of this court in Sagnata Investments Ltd v Norwich Corporation [1971] 2 QB 614 …”

40.         It seems reasonable to assume that Parliament had this guidance in mind when it spelled out the role of the tribunal on appeals under Part 2 of the 2004 Act in paragraph 34(2) of Schedule 5.  The appeal is a “complete rehearing”, but not one which disregards entirely the decision of the local housing authority.

41.         On issues which depends on weighing and assessing a number of different factors (tasks which the F-tT with its relevant experience and composition is well equipped to undertake) reasonable people may well arrive at different conclusions.  On a rehearing an appellant is entitled to expect that the F-tT will make up its own mind.  In doing so it is not required to adopt the approach advocated by Mr Madden of starting with a blank sheet of paper, and it is entitled to have regard to the views of the local housing authority whose decision is under appeal.  How influential those views will be is likely to depend on the subject matter; Buxton LJ’s recommendation that a county court judge should be slow to disagree with the views of the authority does not seem to me to apply with the same force to a specialist tribunal.

42.          There is force in Mr Madden’s submission that the F-tT appeared to act as a court of review, and Mr Whatley did not go out of his way to defend its approach.  The F-tT considered whether the Council had been entitled to reach the conclusion which it did reach, which is a different exercise from making up its own mind on whether the Property was reasonably suitable for occupation by 6 people.

43.         For that reason I will allow the appeal on the first issue.  I have not had the advantage which the F-tT had of viewing the Property and it would therefore not be appropriate for me to undertake a rehearing of the original application or to substitute my own decision.  Before remitting the matter for reconsideration by the F-tT I will briefly consider the other grounds of appeal, the first of which, both counsel agreed, is of some significance.

Issue 2: Does a local housing authority have power to set local minimum space standards, and, if so, what weight should be given to them by the F-tT?

44.         Mr Madden submitted that a local housing authority had no power to set mandatory local standards.  Section 65 of the Act made provision for prescribed standards applicable to all HMOs which were to be made by the appropriate national authority.  No space standards have been prescribed.  The role of the local housing authority is to apply those standards to individual houses and to arrive at a conclusion, on a case by case basis, of whether a particular property is reasonably suitable for occupation by the number of persons for whom a licence was sought.

45.         It was obviously appropriate, Mr Madden acknowledged, for a local housing authority to give guidance, both to its own officers and to the public, on how it intended to address the issue of suitability.  What it could not do was to adopt mandatory standards non-compliance with which would result in a determination that a house was not suitable.  To do that would be to fetter its own discretion, and to usurp the power of the Secretary of State to prescribe national standards. What was required in each case was a consideration of the room and the Property as a whole on their merits, rather than by reference to a fixed minimum floor area.

46.         Mr Whatley submitted that there was plainly a power to adopt standards over and above the prescribed standards.  He referred to an explanatory note appended to the 2004 Act which, commenting on section 65, said that “an LHA may require different, but not lower, standards than those prescribed in the regulations when determining whether the HMO is reasonably suitable for the number of occupants”.  In 2009 LACORS, the Local Authorities Coordinators of Regulatory Services, adopted a guidance document on the regulation of “crowding and space” in residential premises which was concerned principally with the enforcement of housing standards under Part 1 of the 2004 Act.  At paragraph 6.4 the guidance noted that there are no national standards for room sizes in HMOs, and encouraged local housing authorities to set their own room standards.  As overcrowding was a hazard identified in Part 1 of the 2004 Act it would be anomalous for an authority to licence an HMO for a number of occupants which depended on the use of a room which would inevitably create a category 2 hazard and give rise to a duty to consider enforcement measures.

47.         Mr Whatley submitted that the space standard adopted by the Council was rational and reasonable, being based on the statutory minimum area for the avoidance of over crowding in single dwellings.  In any event the Council’s standards were guidance and, as the introductory text quoted in paragraph 21 above indicated, the Council was willing to depart from them in an appropriate case.

48.         At the conclusion of the argument on this issue the parties were not really very far apart.  Mr Whatley had retreated from the position that a local housing authority could set mandatory local standards which even the F-tT on an appeal would be required to apply.  Mr Madden had acknowledged that no exception could be taken to the Council issuing guidance. 

49.         It is clearly permissible for a local housing authority to give guidance on what factors it will take into account in determining whether a house is reasonably suitable for use as an HMO by a certain number of occupiers.  The size of the accommodation is obviously a relevant factor in any such assessment.  I see no reason why guidance should not identify a specific room size which will ordinarily be regarded as too small to provide adequate sleeping accommodation.  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 sloping ceiling, ought to be treated is also appropriate, but again subject to the possibility of exceptions. 

50.         There is some risk of confusion over the significance of the prescribed standards referred to in section 65 of the 2004 Act, compliance with which is necessary in all cases, and the “minimum standards” referred to in the LACORS guidance and in the Council’s own guidance document.  The guidance adopted by the Council is not a substitute for consideration of whether a specific house is reasonably suitable for a particular number of occupiers. 

51.         Where the Council’s own “standard” is set by reference to the minimum space standards prescribed by section 326 of the 1985 Act, and explained on that basis (as in the decision letter in this case), there is a risk that it will be seen as a statutory minimum with the same force as the prescribed standards under section 65 of the 2004 Act.  There is nothing objectionable in the use of the 6.5m² derived from the 1985 Act as guidance but for the purpose of HMO licensing it has no statutory force in its own right. The introductory note to the Council’s guidance document offers the possibility of a flexible approach only where “the solution is within the legislative framework”.  The Council’s decision letter suggests to me that the minimum space standard is regarded by its officers as part of the “legislative framework” from which they are not free to depart in any circumstances.  Such an approach is based on a misunderstanding.

52.         As for the weight which the F-tT should give to the Council’s guidance, once again by the conclusion of the argument there was little between the parties.  Mr Whatley had backed away from the submission in his written argument that “if the authority has lawfully implemented standards for the grant of licences the F-tT must re-hear the decision subject to those standards”.  He submitted that the Council’s guidance was relevant material to which the F-tT should have regard and from which it should be slow to depart.  Mr Madden did not take exception to that way of putting it, at least where the guidance was set at so modest a level as in this case (other authorities may aspire to more exacting minimum room sizes, as the LVT’s decision in Townson v Portsmouth City Council CHI/OOMR/HML/2007/0001 shows). 

53.         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. 

Issue 3: Assessment of space

54.         Mr Madden emphasised the care which had been taken to design the room and the advantages of providing both a space large enough to accommodate a king-size mattress at high level and additional living space at first floor level, including room for a desk beneath the staircase in space not taken into account in the Council’s system of measurement.  The rigid exclusion of the upper bed area because of restricted head height was inappropriate and prevented a proper consideration of its suitability for occupation.  The room was well lit by two windows and was provided with six power sockets, and the other amenities of the Property in terms of bathrooms and communal living space, substantially exceeded the Council’s minimum requirements.  The appellant had not experienced resistance when letting the room.

55.         Mr Whatley submitted that no matter how well appointed the rest of the Property was, the room represented the only private living space for one individual and was simply too small to be suitable for that purpose.

56.         There is nothing further I can usefully say on this issue.  The photographs I have been shown demonstrate only that the room is of a most unusual configuration, but no proper assessment could be made of it without the benefit of an inspection. It will be a matter for the F-tT to assess the room as part of the whole house taking into account the matters relied on by both parties.

Issue 4: Assessment of the whole house

57.         There was no disagreement that the statutory question is whether the house as a whole is suitable for occupation by a particular number of people.  Mr Whatley acknowledged that the F-tT’s decision did not consider the general level of amenity which the Property provided, but he was right in my judgment to put the application in context and to resist Mr Madden’s submission that this was indicative of error.  There had been no issue over the suitability of the Property for 5 occupiers and it had already been so licensed.  The application was for a variation of the licence on the basis of the alteration carried out to one room and it was inevitable that the principal focus would be on that room.

Disposal

58.         For the reasons given in relation to issue 1, I therefore allow the appeal and remit the application for rehearing by the F-tT.

 

Martin Rodger QC

Deputy President

27 March 2015