Housing – Rent repayment order – House in multiple occupation – Appellant appealing against rent repayment order made against him by First-tier Tribunal on basis that property was unlicensed HMO – Whether part of property satisfying criteria for identifying “self-contained flat” – Whether property within definition of HMO – Whether FTT giving adequate reasons for concluding property was HMO – Appeal allowed
The appellant owned a property at 14 Bassett Road, London W10. Four rooms were rented out to individuals who shared the first-floor bathroom and the ground-floor kitchen. The respondent rented a room in the house from August 2020 to February 2022. Later she applied to the First-tier Tribunal (FTT) for a rent repayment order on the ground that the house was required to be licensed as a house in multiple occupation (HMO) under the Housing Act 2004 and was not.
On the ground floor was a large room which was occupied by the appellant and his mother. The ground-floor room had its own lockable door and was a lounge with a small bathroom and kitchen area at the rear. There was a bed on the ground level for his mother and a mezzanine area (described as a second bedroom) where the appellant slept.
Housing – Rent repayment order – House in multiple occupation – Appellant appealing against rent repayment order made against him by First-tier Tribunal on basis that property was unlicensed HMO – Whether part of property satisfying criteria for identifying “self-contained flat” – Whether property within definition of HMO – Whether FTT giving adequate reasons for concluding property was HMO – Appeal allowed
The appellant owned a property at 14 Bassett Road, London W10. Four rooms were rented out to individuals who shared the first-floor bathroom and the ground-floor kitchen. The respondent rented a room in the house from August 2020 to February 2022. Later she applied to the First-tier Tribunal (FTT) for a rent repayment order on the ground that the house was required to be licensed as a house in multiple occupation (HMO) under the Housing Act 2004 and was not.
On the ground floor was a large room which was occupied by the appellant and his mother. The ground-floor room had its own lockable door and was a lounge with a small bathroom and kitchen area at the rear. There was a bed on the ground level for his mother and a mezzanine area (described as a second bedroom) where the appellant slept.
The FTT decided that the property was an HMO requiring a licence, based on the number of occupants during the relevant 12-month period and it made a rent repayment order against the appellant.
The appellant appealed, contending that the ground-floor room was a self-contained flat and its occupants did not count towards the number of occupants in determining whether a licence was needed. Even if the rest of the house was an HMO, it did not require a licence because during the relevant period were there no more than four occupants in the rest of the house; alternatively, the FTT did not give sufficient reasons for its calculation of the number of occupants occupying the building as their only or main residence.
Held: The appeal was allowed.
(1) Part 2 of the Housing Act 2004 provided that certain HMOs had to be licensed. Under section 55(2)(b), a licence was required for: “(a) any HMO in the authority’s district which falls within any prescribed description of HMO, and (b) if an area is for the time being designated… under section 56 as subject to additional licensing, any HMO in that area which falls within any description of HMO specified in the designation”. So, to determine whether a building needed an HMO licence, it was necessary to determine first whether it was an HMO and second whether either of the conditions in section 55(2)(b) applied.
Condition (b) did not apply because at the material time the local housing authority had not designated the relevant area as being subject to additional licensing (although it had done so since). As to condition (a), the prescribed description was in the Licensing of Houses in Multiple Occupation (Prescribed Descriptions (England)) Order 2018, which required a licence only if the HMO was occupied by five or more persons.
(2) The relevant test in the present case was the “standard test” set out in section 254(2) under which a building or part thereof met the standard test if it consisted of one or more units of living accommodation not including a self-contained flat, the living accommodation was occupied by persons who did not form a single household and two or more of the households who occupied the living accommodation shared one or more basic amenities or the living accommodation was lacking in one or more basic amenities.
Section 254(8) provided that “basic amenities” meant a toilet, personal washing facilities, or cooking facilities; “self-contained flat” meant a separate set of premises (whether or not on the same floor) which formed part of a building (either the whole or a material part of which lay above or below some other part of the building) and in which all three basic amenities were available for the exclusive use of its occupants.
(3) The FTT’s decision that the ground-floor room was not a self-contained flat appeared to rest on the “limited” nature of the facilities to the rear, the “rather restricted” nature of the sleeping area, and perhaps the absence of a Chubb or Ingersoll lock. It was troubling that despite having its attention drawn to section 254(8), the FTT made no mention of that provision. Inevitably, the FTT’s decision had to be set aside on the basis that it failed to take into account a crucially relevant matter, namely the statutory definition of a self-contained flat. The weight of the evidence in the FTT was that the three basic facilities were present in the ground-floor room and the definition at section 254(8) was satisfied. Therefore, the ground-floor room was a self-contained flat as defined.
Section 254(2)(a) provided that an HMO had to be “one or more units of living accommodation not consisting of a self-contained flat or flats”. Therefore, if the rest of the house was an HMO, the ground-floor room was not part of that HMO. Its occupants could not count towards the total required by the 2018 regulations in determining whether a licence was required. A licence was therefore not required for the house (even if it was an HMO), the appellant committed no offence, and the application for a rent repayment order was dismissed.
(4) One of the requirements of section 254(2), within the “standard test”, was that the occupants had to use the property as their only or main residence: section 254(2)(b). In many cases that was an easy inference to draw, even where there was no specific evidence on the point: see Opara v Olasemo [2020] UKUT 96 (LC); [2020] PLSCS 55. The present case was not such a case. While there were, for much of the relevant period, four people living in the rented rooms, some of them stayed for such a short period that it did not appear to be their only or main residence. The burden was on the respondent to prove, to the criminal standard, that the rented rooms were their only or main residence. That was not an obvious and unchallenged inference from the evidence, and the FTT was not entitled to ignore the fact that it was an issue between the parties.
Nevertheless, the FTT made no finding of fact on that issue, apparently taking the matter as read and making no mention of the point. The FTT again ignored a relevant consideration, namely, the dispute about the status of the occupation of some of the occupiers.
Julian Hunt (instructed by Direct Access) appeared for the appellant; the respondent did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of Barker v Shokar
