First-tier Tribunal Upholds HMO Licence Condition

OUTCOME: Dismissed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : LON/00AG/HML/2023/0032 Property : 41 [ADDRESS] [POSTCODE] Applicant: [redacted] Respondent : [redacted] Type of [NAME] :

Appeal against condition contained in HMO Licence pursuant to paragraph 31(1) of Schedule 5 to the Housing Act 2004 Tribunal Members :

Tribunal Judge H [NAME] : 10 [ADDRESS] [POSTCODE] Date of Hearing :

29 July 2024

Date of Decision : 29 July 2024

DECISION

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Decision of the Tribunal

The Tribunal determines that an HMO licence should be issued to the Applicant on the terms proposed by the Respondent. Introduction 1. This is an [NAME] by the Applicant, who is the long leaseholder of the Property, in respect of a licence issued by the Respondent on 5 September 2023 pursuant to Part 2 of the Housing Act 2004 (“the 2004 Act”). The [NAME] was made on 3 October 2023, within the 28 day time limit required for such applications.

2. The Applicant is appealing against a condition of that licence pursuant to paragraph 31(1) of schedule 5 to the 2004 Act.

3. The 2004 Act contains mandatory provisions for licensing HMOs. In addition, [NAME] can increase the standards set out in the 2004 Act by adopting its own policies. The Respondent as local authority has an Additional Licensing Scheme which came into force on 8 December 2015 and was renewed on 8 December 2020 (“the Council Standards”). This applies borough wide to all HMOs, covering any building or part of a building occupied by 3 or more persons forming 2 or more households.

4. The Property is a first floor flat, currently configured as three bedrooms, an open kitchen/dining area and a communal bathroom.

5. The Applicant is the long leaseholder of the Property which she acquired on 8 October 2018. The freeholder is the Respondent. At the time of acquisition, it was configured as a two bedroom flat with a large living room, this is now being used as a bedroom.

6. The Applicant applied for an HMO licence for the Property on 10 April 2022. Following an inspection of the Property on 9 June 2023 by Mr [RESPONDENT] of the Respondent, a draft licence was sent to the Applicant on 6 July 2023, giving the Applicant 14 days to make representations on it. The Applicant submitted representations on 19 July 2023, to which the Respondent replied on 3 August 2023. The licence was then issued on 5 September 2023.

7. The licence contained various conditions specific to the Property, including a requirement that the first floor centre left bedroom (“Bedroom A”) ceases to be used as a bedroom. The Applicant was expected to ensure that the existing occupation ended within 18 months

3 of the issue of the licence and no new occupation was permitted. At that time, there were three occupants in the Property, using one bedroom each. The licence permitted three occupants and two households in the Property, with two occupants permitted in the master bedroom and one in a second bedroom.

8. The proposed licence also contained various conditions including in relation to fire safety which are not disputed by the Applicant.

9. The Applicant’s appeal relates to the decision not to allow occupation of Bedroom A.

10. The Tribunal was provided with a bundle from the Applicant running to 45 pages and a separate bundle from the Respondent running to 143 pages. The contents of all these documents were noted by the Tribunal.

11. The hearing was conducted in person. The Applicant was in attendance and represented herself. She was accompanied by a relative, [NAME] [APPELLANT]. [NAME] (the Principal Environmental Health Officer at the Respondent) attended on behalf of the Respondent.

12. The hearing took the form of a re-hearing of the Applicant’s [NAME], as required by paragraph 34(1) of schedule 5 of the 2004 Act. In doing so, the Tribunal applied the mandatory requirements of the 2004 Act and the Council Standards and considered the submissions of both parties. Council Standards 13. The Council Standards set out detailed provisions which HMOs within the London Borough of Camden area are required to comply with. These include requirements for shared bathroom and kitchen facilities and detailed bedroom standards.

14. These standards require any bedroom for single occupancy by a person over 10 must be at least 9 square metres in size. This can be reduced to 7.1 square metres where there is sufficient communal space available in the relevant property.

15. The effect of adopting an additional HMO licensing scheme is that all HMOs within the borough must comply with the minimum size requirements set out in the Licensing of Houses in Multiple Occupation (Mandatory Conditions of Licences) (England) Regulations 2018 (“the Mandatory Requirements”). These include a requirement that any bedroom for single occupancy by a person over 10 must be at least 6.51 square metres in size.

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Respondent’s submissions 16. The Respondent explained that Bedroom A was measured as 5.96 square metres in size, taking into account all areas within the room. This measurement has not been contested. As such, the Respondent argues that the size is below the minimum size permitted within the Council Standards for occupation by a person over ten years old (this is 7.1 square metres). However, the Respondent acknowledged that these standards represent guidelines and smaller sizes can be agreed where appropriate.

17. The Respondent went on to explain that, even if the council was minded to agree to an area below that required by the Council Standards, they still had to comply with the Mandatory Requirements, which in this case required a minimum size of 6.51 square metres. There was no discretion to allow a bedroom for occupation by a person aged over 10 below that level. As Bedroom A measured 5.96 square metres, the Respondent had to impose a condition prohibiting its use as a bedroom and had no power to agree any deviation from this. It was also explained that the Applicant had been given the longest permitted time (18 months) to obtain possession from the then current occupier.

18. The Respondent was asked about possible future reconfigurations of the Property. Mr [NAME] explained that it was in principle possible to allow increased occupation if the Council Standards were met, any works might however require the consent of the freeholder and planning permission. The licence in the meantime had to be granted based on the current lay out. The Applicant was encouraged to discuss any proposed works with the Environmental Health team at the Respondent before undertaking them. 19. [NAME] also explained that the Mandatory Requirements only had to be complied with because of the introduction of the additional HMO licensing scheme. However, the scheme would remain in place until October 2025, when it would be considered for renewal. No deviation from these standards could be agreed that did not comply with the Mandatory Requirements. An alternative was to consider renting the Property as a whole to a single household, in which event the Mandatory Requirements would not apply, although other statutory requirements (for example in relation to overcrowding) would apply. Applicant’s submissions 20. The Applicant argued that the Property was a comfortable, well maintained flat, with no issues with overcrowding. With the demand for housing at the high level it currently is, taking a more affordable,

5 smaller room out of the market did not seem like an appropriate approach. She explained that she planned to reconfigure the flat in due course and was seeking a relief from the minimum requirements in the meantime; these only applied in any event because the Respondent had opted to adopt an additional HMO licensing scheme. The occupier of Bedroom A had left so the room for now was unused. Tribunal consideration 21. The Tribunal considered the Council Standards, the Mandatory Requirements, the evidence provided to it and the submissions of the parties and determined as follows.

22. It began by considering whether the Respondent had complied with the requirements of the 2004 Act before granting the licence and imposing the condition that Bedroom A was not to be used as a bedroom. By issuing the draft to the Applicant, giving her the required consultation period and considering her representations, it had complied with those requirements.

23. The Tribunal then considered whether the imposition of the condition prohibiting occupation of Bedroom A as a bedroom was appropriate for regulating the management, use and occupation of an HMO in accordance with section 67(1) of the 2004 Act. The Tribunal accepted that the Mandatory Requirements applied to the Property and it was not within the power of the Respondent to allow a deviation from these. Bedroom A was smaller than the minimum required size for occupation as a bedroom for a person over 10 years old. As a result, the Respondent had no choice but to impose the condition prohibiting its use as a bedroom. Arguments about the loss of suitable accommodation were not relevant to this. In addition, future plans for reconfiguration were not relevant at this stage; until implemented, the Respondent could only consider the Property in its current state.

24. Finally, the Tribunal considered whether it was appropriate to vary the relevant condition in any way. The Respondent had given the Applicant the longest period permitted for compliance and so a further period was inappropriate. The Tribunal therefore determined that no variation was appropriate.

25.

Accordingly, as the Respondent had no choice but to impose the condition and no variation to it was appropriate, the Tribunal determined that the HMO licence should be issued in the form proposed by the Respondent. Tribunal determination

6 The Tribunal determines that an HMO licence should be issued to the Applicant on the terms proposed by the Respondent. Name: Tribunal Judge Lumby Date: 29 July 2024

Rights of appeal By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the tribunal is required to notify the parties about any right of appeal they may have. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written [NAME] for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case. The [NAME] for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the [NAME]. If the [NAME] is not made within the 28- day time limit, such [NAME] must include a request for an extension of time and the reason for not complying with the 28-day time limit; the tribunal will then look at such reason(s) and decide whether to allow the [NAME] for permission to appeal to proceed, despite not being within the time limit. The [NAME] for permission to appeal must identify the decision of the tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal and state the result the party [NAME] the [NAME] is seeking. If the tribunal refuses to grant permission to appeal, a further [NAME] for permission may be made to the Upper Tribunal (Lands Chamber).