Nottingham City Council v Parr & Anor  UKSC 51
It is not every day you see the Supreme Court setting HMO licence conditions, but today is that day.
This was Nottingham’s appeal from the Court of Appeal (and before that, the Upper Tribunal, and the First Tier Tribunal (Property Chamber)) on the issue of whether conditions under section 67 Housing Act 2004 could include specifying the kind of class of persons who could occupy the HMO.
Perhaps surprisingly, Nottingham were arguing that s.67 did not give such a power. But the history sort of explains that.
Nottingham had a policy of minimum HMO room sizes – bedrooms in single occupation in HMOs where there is adequate dining space elsewhere and where cooking facilities are not provided in the room the minimum space should be 8 square meters, and that only space with a floor to ceiling height of 1.53 metres or more should be considered.
In the two properties at issue, one had an attic room with a total floor area of 9.75 square metres but, due to the sloping ceiling, only 5.89 square metres has a floor to ceiling height of 1.53 metres or more. The other property had an attic room with a floor area of approximately 11 square metres of which only 6.89 square metres has a floor to ceiling height of 1.53 metres or more.
The evidence before the FTT was that the sloping areas had a desk under it, and that beds could be moved.
Nottingham granted HMO licences, but these banned the use of each attic room. The landlords appealed to the FTT.
The FTT found that Nottingham’s guidance on room size was reasonable, but should not be applied as an inflexible policy where there were compensating factors. The FTT found there were sufficient compensating factors “student or similar cohesive occupation for six persons in six households”. The FTT changed Nottingham’s decision and imposed a licence condition
“The second floor front bedroom may only be used for sleeping accommodation by a person engaged in full-time education and who resides in the dwelling for a maximum period of ten calendar months over a period of one year.”
Nottingham appealed to the UT. The UT upheld the FTT, observing:
the level of shared activity and social interaction to be expected in a “shared-house” or “Category B” HMO, as described at greater length in the policy documents of other local authorities. In his view, the basic idea of a house shared by a number of individuals, not forming a family but who nevertheless wish to share communal living facilities and enjoy a significant level of social interaction, is readily understood.
The Court of Appeal, Nottingham’s next stop, upheld the UT, with variations. The Court of Appeal considered that the power to impose conditions permitted a condition defined by reference to the general characteristics and activities of an occupier. But they varied the licence terms to include
“(i) that the communal space on the ground floor, comprising a kitchen/diner and living room area, be kept available for communal living space only;
(ii) that no bedrooms may be let to persons other than students engaged in full-time education.”
So, Nottingham went to the Supreme Court (on their own, the original appellants unsurprisingly declining to play a part).
Ground 1: The power to impose conditions under sections 64 and 67, Housing Act 2004, in order to make an HMO suitable for a particular number of households or persons, cannot be used so as to limit the class of persons for whom the HMO is suitable.
Ground 2: The conditions imposed by the Tribunals and Court of Appeal are irrational and unenforceable.
On ground 1
25. (…) Mr Arden submits that there is no doubt that the purpose in imposing the conditions in the present case was to allow occupation at a lower standard or by a greater number than would otherwise have been permitted in the circumstances of the HMOs in question. I should observe at this point that it is clear that Nottingham in bringing this appeal and the Secretary of State in intervening have clearly been motivated by a wish to ensure that HMOs provide acceptable living conditions, to protect the vulnerable or potentially vulnerable groups that tend to occupy HMOs and to avoid an interpretation of the legislation as a result of which lower standards are to be considered appropriate for particular groups such as students. That is commendable. However, I consider that their concern is unfounded. The imposition of conditions such as those imposed by the Tribunals and the Court of Appeal in the present case do not have that effect. It is entirely appropriate, when considering the suitability of accommodation in an HMO for a particular purpose, to have regard to the mode of occupation. If the house is to be occupied by a group living together “cohesively”, each having his or her own bedroom but sharing other facilities including a kitchen/diner and a living room, the availability of those additional facilities is a material consideration. In these circumstances the mode of occupation means that the shared facilities will benefit all the occupants and, as a result, this may compensate for a bedroom which is slightly smaller than the recommended minimum. By contrast, where occupants of an HMO each live independently of all others, sharing only bathroom, toilet and kitchen facilities, any communal living space made available will not benefit the occupants in the same way because of their different living arrangements.
26. It seems to me to be entirely appropriate, therefore, that in considering the suitability of accommodation in an HMO regard should be had to the proposed mode of occupation. Furthermore, in appropriate cases effect may be given to such considerations by the imposition of conditions in the licence. This is not inconsistent with the statutory scheme. As the Deputy President of the Upper Tribunal pointed out in his judgment, certain types of accommodation may lend themselves to different styles of occupation and it would be surprising if the 2004 Act did not reflect that. The various guidelines referred to earlier in this judgment refer in different ways to the need for flexibility in their application. In that regard, account should be taken of the proposed mode of occupation where it is likely to influence the quality of the accommodation made available to the occupant. It must be emphasised that this does not permit the application of lower standards than would otherwise be applicable. On the contrary, it is simply that there will be certain circumstances in which, as a matter of common sense, it will be appropriate to have regard to the mode of occupation when applying the same objective standards which apply to all HMOs.
27. For these reasons, I consider that the power to impose conditions under sections 64 and 67, Housing Act 2004, in order to make an HMO suitable for a particular number of households or persons, can be used so as to limit the class of persons for whom the HMO is suitable.
On ground 2, well,
34. The reasoning of the First-tier Tribunals and the Upper Tribunal in this case makes clear that the intention was to restrict occupation to students because they were considered to be a category of occupants who were likely to live in a cohesive manner. In the Upper Tribunal the Deputy President observed that by “cohesive living” the First-tier Tribunal clearly had in mind “the level of shared activity and social interaction to be expected in a ‘shared-house’ or ‘Category B’ HMO, as described at greater length in the policy documents of other local authorities”. The first issue for consideration under this ground is therefore, as Mr Chamberlain put it, whether a condition limiting the occupation of each of the houses to occupation by persons engaged in full-time education is a sufficiently precise proxy for occupation by persons living together cohesively.
35. All students are individuals and their respective activities and life-styles will, no doubt, vary considerably. Nevertheless, it does seem to me that the normal state of affairs generally to be expected when students share a student house is that there will be a high level of social activity and social interaction among them and that they will all make extensive use of the shared living facilities. There can be no guarantee that any given student occupier will make full use of the shared facilities, but the availability of such facilities, emphasised by the Court of Appeal, coupled with the normal expectation of cohesive living in a student house makes it reasonable to adopt this proxy in this context. It is also significant that the members of the First-tier Tribunals in these cases, with their experience of student accommodation in Nottingham, considered this a reasonable approach. While I agree with the Deputy President of the Upper Tribunal that an alternative condition, perhaps more closely reflecting its rationale, might require that all occupants be members of a group who intend to share the communal living space, the proxy adopted is sufficiently precise. Moreover, the alternative might give rise to difficulties of enforcement.
36. The requirement that the attic rooms may only be occupied for ten months in each year was clearly intended to reinforce the requirement that occupation be by full-time students. If the latter requirement is lawful, the former is strictly unnecessary. I consider that the requirement limiting occupation to ten months in each year is irrational. If a room is suitable for occupation for sleeping for ten months in the year, it is suitable for such occupation for the entire year. Moreover, full-time students often require accommodation for the entire year. In these circumstances, it is unnecessary to consider whether this requirement is enforceable. I would vary the conditions imposed in respect of each property to delete the requirement that the attic rooms may only be occupied for ten months in each year.
So, licence varied to be students only, and the ’10 months a year’ condition, removed.
With the irony of timing, room size conditions for HMOs came in on 1 October 2018 (with a transition period for existing HMOs) by national legislation. However, Nottingham may still have done councils a favour. Being able to address licences in terms of suitable class of occupants (assuming that it can be justified) is another potential factor in suitable use of a property.