Herefordshire Council v Rohde 2016 UKUT 039 (LC)

The power for a local authority to make an HMO declaration under s255, Housing Act 2004 is not commonly used. This power arises where a property appears to be an HMO in all respects save that it is not being used solely as an HMO. In that case the property will not fulfil the tests for an HMO under s254 of the Act but can be declared to be an HMO by the local authority of they reasonably believe that the property has “significant use” as an HMO.  The declaration as an HMO can be appealed to the FTT (and from there to the UT) and that appeal operated by way of a re-hearing of that decision. 

This is what happened in this case. A declaration was made by the local authority. It was appealed to the FTT. The FTT inspected the property and found that, on the day of their inspection, there was no HMO use as the property did not at that moment in time qualify as an HMO due to there being no evidence of there being any more than two occupants. Accordingly the FTT purported to revoke the declaration. 

The Council appealed to the UT. The Respondent did not appear and merely gave a brief written statement to the UT that the property had been in use as an HMO but that the use had ceased by the time of the FTT inspection. 

The Council had two arguments before the UT. 

First the FTT had erred in law by revoking the declaration. As it was an appeal by way of re-hearing (as almost all FTT appeals under the Housing Act 2004 are) it was not for FTT to revoke the licence. They should have re-made the decision and either confirmed the Council decision to make a declaration or reversed it. 

Second, and rather more crucially, the FTT had made its decision entirely on the basis of its inspection rather than giving consideration to the substantial evidence that the Council had amassed, and presented to the UT, that the property was in use as an HMO. This would allow an unscrupulous landlord to appeal a declaration and simply ensure that as at the date of the FTT inspection, which unlike a local authority inspection is flagged well in advance, there was no immediate evidence of HMO use. Operating in this way would make a mockery of the entire HMO declaration process. 

On the first point the UT agreed with the Council. The FTT should not have revoked the declaration but should in fact have reversed the Council’s decision. However, given the way that declarations operate, this was a matter of semantics and calling it a reversal or a revocation made no difference here. 

On the second point the UT also agreed with the Council. The FTT had apparently given no weight, or even consideration, to the evidence of the Council and had also seemed to precede entirely on the basis of an assumption that HMO use operated as a sole use test rather than one of significant use. It was this that had apparently, in the UT’s opinion, led the FTT into error. If they had focused more on the “significant use” test they would have appreciated that any significant use at any stage, even if the house was empty for several days in a year, would make the property and HMO and the actual use on the specific day the FTT visited was of rather less importance. 

Rather than remitting the matter back to the FTT the UT agreed, at the Council’s request to make the decision again. It held that on the basis of the evidence before it, which was also before the FTT, the Council was right to conclude that the property was an HMO, that the FTT should have drawn the same conclusion, and that was the conclusion that the UT would draw. Accordingly, the UT confirmed the decision of the local authority and the HMO declaration was re-made by the UT. 

The UT pointed out, and so shall I, that Mr Rohde is entitled to ask the Council to revoke their declaration if it is indeed the case that the property is no longer in use as an HMO. 

There are two points to note here. First, the FTT is operating by re-hearing and should not revoke a declaration in this way but rather confirm or reverse the decision of the Council. Second, it is not enough of one is seeking to have a declaration reversed to simply show that it is not being used as an HMO on the day of an inspection by the FTT and instead a weight of evidence will need to be produced to demonstrate that HMO use is not, or is no longer, significant.