HMO Licence Appeal Dismissed: Room Size Below Statutory Requirement

OUTCOME: Dismissed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : LON/00BG/HML/2020/0026 HMCTS code (paper, video, audio) : V: CVP VIDEO Property : 23 [ADDRESS] [POSTCODE] Applicant : [redacted] : In person Respondent : [redacted] Representative : Mr [COUNSEL], Solicitor Type of [NAME] : Appeal in respect of an [NAME] - section 64 & Part 3 of Schedule 5 to the Housing Act 2004 Tribunal Members : Judge N [NAME] and date of hearing : 10 [ADDRESS] [POSTCODE] on 4 December 2020 Date of Decision : 8 June 2021

DECISION

2 Covid-19 pandemic: VIDEO HEARING This has been a remote video hearing which has been consented to by the parties. The form of remote hearing was V: CVP REMOTE. A face-to-face hearing was not held because it was not practicable and all issues could be determined in a remote hearing. The documents that we were referred to are contained in a single bundle provided by the Applicant and a single bundle provided by the Respondent, the contents of which we have noted. The order made is described below. Decision of the Tribunal The appeal is dismissed. The Tribunal’s determination 1. This is an appeal under section 64 and Part 3 of Schedule 5 to the Housing Act 2004 against the imposition of a condition concerning the occupancy of a [NAME] on the grant by the Respondent to the Applicant of a [NAME] for a house in multiple occupation (“HMO”) in respect of 23 [ADDRESS] [POSTCODE] (“the Property”).

2. The [NAME] is valid from 5 November 2020 and provides in respect of a room known as “[NAME] 4” that the floor area is 6.3 square metres and that the “maximum number permitted for sleeping” is nil. The accompanying notes state: “Please be aware that [NAME] 4 was excluded because it is less than the minimum standardised size of 6.5m2. Do not renew [NAME] 4’s tenancy agreement.” 3. The Applicant was notified of the [NAME] by a written notice dated 11 November 2021. It is common ground that the size of [NAME] 4 is slightly under 6.5 metres square and that the [NAME] of the room is an adult. The Applicant wishes to continue to let room 4 for occupation by an adult and she informed the Tribunal of various features which make the [NAME] 4 particularly attractive to prospective tenants.

4. Paragraphs 31 and 34 of Part 3 of Schedule 5 to the Housing Act 2004 provide: 31 Right to appeal against refusal or grant of [NAME] (1) The applicant or any relevant person may appeal to the appropriate tribunal against a decision by the local housing authority on an [NAME] for a [NAME]–

3 (a) to refuse to grant the [NAME], or (b) to grant the [NAME]. (2) An appeal under sub-paragraph (1)(b) may, in particular, relate to any of the terms of the [NAME]. … 34 Powers of tribunal hearing appeal (1) This paragraph applies to appeals to the appropriate tribunal under paragraph 31 or 32. (2) An appeal– (a) is to be by way of a re-hearing, but (b) may be determined having regard to matters of which the authority were unaware. (3) The tribunal may confirm, reverse or vary the decision of the local housing authority. (4) On an appeal under paragraph 31 the tribunal may direct the authority to grant a [NAME] to the applicant for the [NAME] on such terms as the tribunal may direct.

5. The hearing of the appeal took place by CVP video on 7 June 2021. The Applicant attended the hearing in person and the Respondent was represented by Mr [COUNSEL], Solicitor. The Tribunal heard oral evidence from [NAME] [COUNSEL] [NAME], a Housing Standards Officer within the Respondent’s Health and Housing Team.

6. The Applicant wished to explore whether the Tribunal had any discretion to allow an adult to use [NAME] 4 as sleeping accommodation. The Respondent relies upon paragraph 1A of Schedule 4 to the Housing Act 2004 which provides (emphasis supplied): 1A.— Additional conditions to be included in licences under Part 2: floor area etc. (1) Where the HMO is in England, a [NAME] under Part 2 must include the following conditions. (2) Conditions requiring the [NAME]—

4 (a) to ensure that the floor area of any room in the HMO used as sleeping accommodation by one person aged over 10 years is not less than 6.51 square metres;

7. Having considered the express wording of paragraph 1A of Schedule 4 to the Housing Act 2004, we are satisfied that the [NAME] must include a condition requiring the Applicant to ensure that the floor area of any room which is to be used as sleeping accommodation by an adult is not less than 6.51 square metres and that neither the Respondent nor the Tribunal has any discretion to waive or vary this statutory requirement.

8. Paragraph 1B of Schedule 4 to the Housing Act 2004 provides as follows: 1B.— Time for compliance with conditions under paragraph 1A(2) and (3) (1) This paragraph applies in relation to an HMO in England in respect of the first [NAME] granted on or after 1st October 2018 in relation to the HMO, regardless of whether a [NAME] was in force in relation to the HMO immediately before that date. (2) If the local housing authority consider that, at the time the [NAME] is granted, the [NAME] is not complying with one or more of the conditions of the [NAME] imposed pursuant to paragraph 1A(2) and (3), the authority must when granting the [NAME] provide the [NAME] with a notification specifying the condition or conditions and the period within which the [NAME] is required to comply with the condition or conditions. (3) The period specified in the notification must not exceed 18 months from the date of the notification. (4) Within the period specified in the notification— (a) the local housing authority may not revoke the [NAME] for a breach (or repeated breach) of any condition of the [NAME] specified in the notification, (b) the [NAME] does not commit an offence under section 72(3) in respect of any failure to comply with such a condition, and (c) the local housing authority may not impose a financial penalty under section 249A on the [NAME] in respect of such a failure.

5 (5) Sub-paragraphs (2) to (4) do not apply if, before the [NAME] was granted, the [NAME] was convicted of an offence under section 72(2) or (3) in relation to the HMO.

9. The Applicant informed the Tribunal that the [NAME] is likely to leave the Property in approximately a month’s time and that she intends to sell the Property. A question arose as to whether the Tribunal might be willing to vary the [NAME] in order to enable the Applicant to let [NAME] 4 to a [NAME] for a brief period, not exceeding 18 months “from the date of the notification”, pending the proposed sale. 10. [NAME] [NAME] [NAME] gave evidence that, when a room is below the minimum statutory size, it is the Respondent’s policy to only allow a [NAME] time for compliance in accordance with paragraph 1B to give time for an [NAME] to vacate the room.

11. It is not necessary for the Tribunal to consider whether the 18 month period could serve any other purpose because, on the facts of this case, we are satisfied that the [NAME] should not be varied so as to enable a [NAME] to enter into occupation of [NAME] 4.

12. The 18 month period runs from November 2020 and therefore ends in May 2022, and there is currently a tenant in occupation of [NAME]

4. The Applicant expects this tenant to leave in early July 2021 but she was not certain whether the tenant could be required to vacate in a month’s time, if they chose not to leave. [NAME] would be likely to be entitled to remain in occupation for at least 6 months, following which it might be necessary for the Applicant to take steps to require them to vacate. 13. [NAME] would be entering into occupation of a room with a floor size of less than 6.51 square metres and there is a real risk that it might not be possible for the Applicant to ensure that a [NAME] would vacate [NAME] 4 by May 2022.

14.

In all the circumstances, we do not consider it appropriate to vary the terms of the [NAME] and we dismiss the Applicant’s appeal.

Name: Judge Hawkes Date: 8 June 2021

Rights of appeal

6 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).