HMO licensing and training conditions

Elizabeth Dwomoh explores a recent decision on the scope of a local authority’s power to attach training conditions to a landlord’s licence under the selective licensing scheme. Key point A training condition imposed on a landlord’s licence under a selective licensing scheme is allowed if it relates to the management, use and occupation of the property To tackle areas with low housing demand or high levels of antisocial behaviour, local authorities have been given powers under part 3 of the Housing Act 2004 (the Act) to impose selective licensing schemes. Such schemes require a landlord in a designated area to license their property. A failure to do so is a criminal offence. Section 90 of the Act empowers a local authority with the right to attach conditions to a licence. In Berg v Burnley Borough Council [2020] UKUT 91 (LC); [2020] PLSCS 46 the Upper Tribunal (Lands Chamber) (UT) had to determine whether the scope of that power extended to the imposition of a condition requiring a landlord and/or his agent to attend specific training courses relating to the management of the property. The disputed condition The appellant, Geoffrey Berg, was the freehold owner of a two-bedroom mid-terraced house in Burnley. In 2016, Burnley Borough Council implemented a selective licensing scheme in the area. Berg applied for and was granted a licence. His licence was subject to 30 separate conditions. Berg objected to a number of these conditions and appealed to the First-tier Tribunal (FTT). The FTT varied a number of the conditions imposed. Specifically it varied condition 13 (the training condition), which provided: “The Licence Holder and/or their agent (where an agent has been appointed to manage the property) must attend one Landlord Development Day covering how to manage tenancies whilst the licence is in force and must undertake any additional Property Management training courses that the Authority from time to time requires to be undertaken…” Berg objected to the varied training condition and appealed to the UT. Relying on the principles laid down by the Court of Appeal in Brown v Hyndburn Borough Council [2018] EWCA Civ 242; [2018] PLSCS 33, he argued that the council had no power under section 90 of the Act to impose the training condition. The decision in Brown Part 2 of the Act governs the licensing of houses in multiple occupation (HMOs). Section 67 of the Act specifically relates to the conditions that can be imposed in respect of HMO licences. As with selective licensing, local authorities can impose conditions on a landlord’s HMO licence if it is appropriate to regulate the management, use and occupation of the house concerned (section 67(1)(a) of the Act). Further, pursuant to section 67(1)(b) of the Act, conditions can also be imposed to regulate the “condition and contents” of the HMO. Specifically, section 67(2)(f) of the Act permits a condition requiring the HMO licence holder or manager to attend training courses in relation to any applicable code of practice approved by a local authority under section 233 of the Act. An equivalent provision does not exist under section 90 of the Act. Brown concerned a landlord’s objection to two conditions imposed on his licence under section 90 of the Act. The first condition required his property to be covered by a valid electrical installation report. The second condition required the landlord to install a carbon monoxide detector. The FTT deleted the condition requiring the electrical report. It modified the second condition in respect of the carbon monoxide detector, instead imposing requirements only relating to the condition of the detector if one was installed. On appeal, the UT reinstated Hyndburn Borough Council’s original conditions. On a further appeal, the Court of Appeal reinstated the FTT’s conditions. The Court of Appeal found that, unlike section 67 of the Act, section 90 did not grant a general power to impose conditions about the “condition and contents” of the property. Scope of the local authority’s power Berg argued that the Court of Appeal had given authoritative guidance in Brown that the difference in wording between sections 67 and 90 of the Act was deliberate and determinative of the scope of a local authority’s power to impose conditions. The UT agreed. Additionally, Berg highlighted that section 67 of the Act expressly referred to training courses while section 90 did not. In light of the deliberate differences in the wording of the two sections, Berg argued that it could not have been the intention of parliament that a local authority could rely on section 90 of the Act to require a landlord to attend a training course. The UT disagreed. The UT commented that Brown revealed the differences between the general power under section 67 of the Act to impose conditions in relation to the “condition and contents” of HMOs and the more limited power under section 90 of the Act. Both sections 67 and 90 of the Act made general provisions permitting the imposition of conditions relating to the management, use and occupation of the property. Conditions that fell within that proviso were permissible. Berg did not and could not have plausibly argued that the training condition imposed under his licence did not relate to management of the property. Accordingly, it was permissible under section 90(1) of the Act. Elizabeth Dwomoh is a barrister at Lamb Chambers Photo: Artur Cupak/imageBROKER/Shutterstock