Tribunal Upholds HMO Licensing Decision with Occupancy Restrictions

OUTCOME: Dismissed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference

LON/00BE/HMV/2018/0006 Property : 9 [ADDRESS] [POSTCODE] Applicant : [redacted] : N/A Respondent : [redacted] : Mr [COUNSEL] (counsel) Type of [NAME] : Appeal in respect of an [NAME] – s.64 & Part 3 of Schedule 5 to the Housing Act 2004 Tribunal members : Judge Carr Mr Cairns Venue : 10 [ADDRESS] [POSTCODE] Date of decision : 20th November 2018

DECISION

Decision of the Tribunal The Tribunal confirms the decision of the Respondent.

2 Reasons for the Tribunal’s decision Introduction 1. On 28th May 2018 the Appellant appealed the grant of an [NAME] for the property. The [NAME] aspect of the [NAME] that concerned the Appellant is that it limits occupation of the property to 4 persons in 3 households. The Appellant seeks an order from the Tribunal varying that condition so that it permits occupation by 4 persons in 4 households.

2. In effect what the Appellant seeks is that the smallest bedroom in the property, Bedroom 3, which measures 5.2 square meters can be occupied. The [NAME] granted by the Respondent prevents occupation of that room, although it permits a [NAME] to occupy the largest room.

3. The appellant appeared at the hearing and represented himself. The respondent was represented by Mr [COUNSEL] of Counsel. Ms [COUNSEL] an Environmental Health Officer with the respondent gave evidence on its behalf. Background 4. The property is a two-storey end of terrace [NAME] built by the local authority as a family [NAME] in the 1980s. It is now an HMO with 4 rooms let as bedrooms a kitchen/dining room a bathroom with a wc, and a separate wc with a hand basin.

5. The room sizes to the property are as follows: Bedroom 1 (ground floor) 5.392 x 3.466 = 18.091 m2 Bedroom 2 (first floor) 3.472 x 3.182=11.045m2 Bedroom 3 (first floor) 2.471 x 2.110= 5.214m2 Bedroom 4 (first floor) 3.481 x 2.864=9.966m2 Kitchen/Dining room (ground floor) Kitchen area 3.079 x 2.356=7.251m2 Dining area 2.871x2.774=7.964 6. On 5th September 2017 the appellant applied to the respondent for an [NAME]. On 8th March 2018 Ms [RESPONDENT] inspected the property for

3 the purposes of determining the [NAME]. Following the inspection the respondent determined that it was appropriate to [NAME] the property as an HMO permitting occupation of the property by 4 persons in 3 households. 7. The decision that Bedroom 3 was inappropriate to be used as a bedroom took into account [NAME]’s HMO standards, standards of other authorities and the layout of the whole [NAME].

The law S64 Grant or refusal of [NAME] (1) Where an [NAME] in respect of an HMO is made to the local housing authority under section 63, the authority must either- (a) grant a [NAME] in accordance with subsection (2), or (b) refuse to grant a [NAME]. (2) If the authority are satisfied as to the matters mentioned in subsection (3), they may grant a [NAME] either- (a) to the applicant, or (b) to some other person, if both he and the applicant agree. (3) The matters are- (a) that [NAME] is reasonably suitable for occupation by not more than the maximum number of households or persons mentioned in subsection (4) or that it can be made so suitable by the imposition of conditions under section 67; (b) that the [NAME] [NAME]- (i) is a fit and proper person to be the [NAME], and

(ii) is, out of all the persons reasonably available to be the [NAME] in respect of [NAME], the most appropriate person to be the [NAME]; (c) that the [NAME] is either-

4 (i) the [NAME], or (ii) a person who is an agent or employee of the [NAME]; (d) that the [NAME] is a fit and proper person to be the manager of [NAME]; and (e) that the [NAME] management arrangements for [NAME] are otherwise satisfactory. (4) The maximum number of households or persons referred to in subsection (3)(a) is- (a) the maximum number specified in the [NAME], or (b) some other maximum number decided by the authority. (5) Sections 65 and 66 apply for the purposes of this section. S65 Tests as to suitability for multiple occupation (1) The local housing authority cannot be satisfied for the purposes of section 64(3)(a) that [NAME] is reasonably suitable for occupation by a [NAME] maximum number of households or persons if they consider that it fails to meet prescribed standards for occupation by that number of households or persons. (2) But the authority may decide that [NAME] is not reasonably suitable for occupation by a [NAME] maximum number of households or persons even if it does meet prescribed standards for occupation by that number of households or persons. (3) In this section "prescribed standards" means standards prescribed by regulations made by the appropriate national authority. (4) The standards that may be so prescribed include- (a) standards as to the number, type and quality of- (i) bathrooms, toilets, washbasins and showers, (ii) areas for food storage, preparation and cooking, and (iii) laundry facilities,

5 which should be available in [NAME] circumstances; and (b) standards as to the number, type and quality of other facilities or equipment which should be available in [NAME] circumstances. S66 Tests for fitness etc. and satisfactory management arrangements (1) In deciding for the purposes of section 64(3)(b) or (d) whether a person ("[NAME]") is a fit and proper person to be the [NAME] or (as the case may be) the manager of [NAME], the local housing authority must have regard (among other things) to any evidence within subsection (2) or (3). (2) Evidence is within this subsection if it shows that [NAME] has- (a) committed any offence involving fraud or other dishonesty, or violence or drugs, or any offence listed in Schedule 3 to the Sexual Offences Act 2003 (c. 42) (offences attracting notification requirements); (b) practised unlawful discrimination on grounds of sex, colour, race, ethnic or national origins or disability in, or in connection with, the carrying on of any business; (c) contravened any provision of the law relating to housing or of landlord and tenant law; or (d) acted otherwise than in accordance with any applicable code of practice approved under section 233. (3) Evidence is within this subsection if- (a) it shows that any person associated or formerly associated with [NAME] (whether on a personal, work or other basis) has done any of the things set out in subsection (2)(a) to (d), and (b) it appears to the authority that the evidence is relevant to the question whether [NAME] is a fit and proper person to be the [NAME] or (as the case may be) the manager of [NAME]. (4) For the purposes of section 64(3)(b) the local housing authority must assume, unless the contrary is shown, that the [NAME] is a more appropriate person to be the [NAME] than a person not [NAME] [NAME] of it. (5) In deciding for the purposes of section 64(3)(e) whether the [NAME] management arrangements for [NAME] are otherwise satisfactory, the local

6 housing authority must have regard (among other things) to the considerations mentioned in subsection (6). (6) The considerations are- (a) whether any person [NAME] to be involved in the management of [NAME] has a sufficient level of competence to be so involved; (b) whether any person [NAME] to be involved in the management of [NAME] (other than the manager) is a fit and proper person to be so involved; and (c) whether any [NAME] management structures and funding arrangements are suitable. (7) Any reference in section 64(3)(c)(i) or (ii) or subsection (4) above to a [NAME], or to being a person of any other description, includes a reference to a person who is proposing to have [NAME] of [NAME], or (as the case may be) to be a person of that description, at the time when the [NAME] would come into force. S67 [NAME] conditions (1) A [NAME] may include such conditions as the local housing authority consider appropriate for regulating all or any of the following- (a) the management, use and occupation of [NAME] concerned, and (b) its condition and contents. (2) Those conditions may, in [NAME], include (so far as appropriate in the circumstances)- (a) conditions imposing restrictions or prohibitions on the use or occupation of [NAME] parts of [NAME] by [NAME]; (b) conditions requiring the taking of reasonable and practicable steps to prevent or reduce anti-social behaviour by [NAME]; (c) conditions requiring facilities and equipment to be made available in [NAME] for the purpose of meeting standards prescribed under section 65; (d) conditions requiring such facilities and equipment to be kept in repair and proper working order;

7 (e) conditions requiring, in the case of any works needed in order for any such facilities or equipment to be made available or to meet any such standards, that the works are carried out within such period or periods as may be specified in, or determined under, the [NAME]; (f) conditions requiring the [NAME] or the manager of [NAME] to attend training courses in relation to any applicable code of practice approved under section 233. (3) A [NAME] must include the conditions required by Schedule 4. (4) As regards the relationship between the authority's power to impose conditions under this section and functions exercisable by them under or for the purposes of Part 1 ("Part 1 functions")- (a) the authority must proceed on the basis that, in general, they should seek to identify, remove or reduce category 1 or category 2 hazards in [NAME] by the exercise of Part 1 functions and not by means of [NAME] conditions; (b) this does not, however, prevent the authority from imposing [NAME] conditions relating to the installation or maintenance of facilities or equipment within subsection (2)(c) above, even if the same result could be achieved by the exercise of Part 1 functions; (c) the fact that [NAME] conditions are imposed for a [NAME] purpose that could be achieved by the exercise of Part 1 functions does not affect the way in which Part 1 functions can be subsequently exercised by the authority. (5) A [NAME] may not include conditions imposing restrictions or obligations on a [NAME] other than the [NAME] unless that person has consented to the imposition of the restrictions or obligations. (6) A [NAME] may not include conditions requiring (or intended to secure) any alteration in the terms of any tenancy or [NAME] under which any person occupies [NAME] The grounds of appeal 8. The appellant’s case is set out in his letter to Ms [APPELLANT] dated 23rd April 2018. In essence he argues that the respondent’s proposal to restrict occupancy to 4 people in 3 households as opposed to 4 persons in 4 households removes a very affordable housing option. The appellant considers that the respondent has failed to take into account the benefits of the accommodation as a whole. His tenants ‘get a home and a share of a whole [NAME]. They get access to spaces not always available

8 in other properties that effectively extend the size of their individual rooms and enhance their comfort.

9. The appellant points to the three generous communal storage areas, front and back gardens, a larger than average kitchen and accompanying storage and two toilets.

10. The appellant informed the tribunal that Bedroom 3 was the most popular choice because of its substantially reduced cost and, in his opinion, it would be unjust to remove the option from those that need it most.

11. In answer to the Tribunal’s questions the appellant said that the rent for Bedroom 3 was £100 per week and that his tenants tended to stay at the property for a minimum of 6 months and often stayed up to two years.

12. The appellant said that he made efforts to socialise with the tenants and create a homely atmosphere. He visited the property monthly. He removes surplus items from the storage areas. He provides storage for bikes in the rear garden area.

13. He also pointed out that it was difficult to let a room to a [NAME] in a shared [NAME] because they often wanted privacy, and that anyway the presence of couples spoiled the homely atmosphere of the property as they tended to keep themselves to themselves. He also said that he would get a lower rent from a [NAME] renting the room than he would from two individuals renting two rooms.

14. Overall he was seeking that the respondent exercised its discretion and allowed the variation of the condition that he sought.

15. He considered that room size was the choice of the tenant, and he produced a letter from the [NAME] pointing out that he was satisfied with the room, and that affordability was his chief concern. The respondent’s case 16. The respondent provided full supporting documentation for its arguments, including [NAME]’s HMO standards, permittable room sizes of other London boroughs and a selection of case law.

17. Ms [NAME] said that she had considered the matter carefully and taken into account the other facilities in the property. However the room in question is well below the room size required for single occupancy in a shared [NAME], and would be well below the standard required by other London boroughs.

9 18. Ms [NAME] showed the tribunal photographs from her inspection which showed that the storage facilities in the property were overflowing, that Bedroom 3 was cramped and possibly hazardous, and she also informed the tribunal that the tenant was using 2 chest of drawers that he had placed outside of his room creating an obstruction in the means of escape in case of fire..

19. Although she agreed that the extra facilities in the property were welcome, they were not sufficient to justify the use of Bedroom 3.

20. She had not taken the letter from the tenant into account as she did not have sight of it before the terms of the draft [NAME] were confirmed. (She pointed out that letters had been sent to all occupiers and the landlord at an early stage seeking representations on the [NAME] order - none were received ). However she told the tribunal that it would not have made any difference. The room was too small to be used. She said that tenants always justified room size but that it was the respondent’s responsibility to ensure that adequate space was provided for residents. The Tribunal’s reasons for rejecting the appeal 21. The appellant appeared to the tribunal to be a caring and considerate landlord who took his responsibilities seriously. He nevertheless considers that the size of the room is more than compensated for by the other facilities.

22. However the Tribunal noted that in addition to the smallness of the bedroom 3 the kitchen /dining area was also small for the number of people using it, that the storage appeared to be limited, and that the rear garden area was also small.

23. The tribunal considers that the Respondent had thought carefully about its decision, and had taken into consideration the full facilities offered by [NAME], as well as the demand for housing in its area.

24. The tribunal also notes that from 1st October 2018 government standards will set a minimum room size of 6.5m2.

25.

For these reasons the Tribunal rejects the appeal.

Name: Tribunal Judge Carr Date: 20th November 2018

10

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).