[2024] UKUT 17 (LC)

The FTT’s decision that the Ground Floor Room was not a self-contained flat, quoted at paragraph 17 above, appears the to rest on the “limited” nature of the facilities to the rear, the “rather restricted” nature of the sleeping area, and perhaps the absence of a Chubb or Ingersoll lock. There is no mention of the definition in section 254(8) nor any analysis of the facilities to ascertain whether that definition was satisfied. It is not possible to understand why the nature of the lock might be relevant, nor why the sleeping accommodation was relevant. Mr Hunt observed at the appeal hearing that there was no mention of the type of lock at the hearing, so that he was not aware that it was regarded by the FTT as significant.

It is troubling that despite having its attention drawn to section 254(8) in Mr Hunt’s skeleton argument and, Mr Hunt told me, in his closing address, the FTT made no mention of that provision. Nor did it do so in its refusal of permission to appeal, again despite the provision being set out in the grounds of appeal. It is not possible to understand from the FTT’s decision why it took the view that the Ground Floor Room did not satisfy the statutory definition of a “self-contained flat” – or why, if that definition was satisfied, that did not matter. The respondent in her grounds of opposition did not offer any assistance on this point.

Inevitably the FTT’s decision has to be set aside on the basis that it failed to take into account a crucially relevant matter, namely the statutory definition of a self-contained flat.

On the basis of the evidence given to the FTT I am able to substitute the Tribunal’s own decision on this point.

Mr Barker’s evidence to the FTT, as I have said, included a plan which indicated that the three “basic amenities” were present, namely cooking facilities, a toilet, and washingfacilities, and that the Ground Floor Room formed part of the building and was part of the ground floor, underneath the first floor (see the terms of section 254(8), set out at paragraph 11 above. The FTT made no finding that that evidence was not true. Mrs Barker also gave evidence that the Ground Floor Room was self-contained, and her evidence was not challenged at the hearing before the FTT. Ms Shokar’s witness statement said that “if there was a kitchen in the flat” it must have been added since she had left the property; her evidence was that Mr Barker and Mrs Barker used the shared kitchen, It does not appear from Ms Shokar’s witness statement that she had been in the Ground Floor Room or was able to say from her own observation whether any of the “basic facilities” was present.

Accordingly the weight of the evidence in the FTT, and in particular Mrs Barker’s entirely unchallenged evidence, was that the three basic facilities were present in the Ground Floor Room and that the definition at section 254(8) was satisfied. It may be that Mr Barker and Mrs Barker also used the shared kitchen, but that makes no difference to the status of the Ground Floor Room. Whether or not the Ground Floor Room was separately assessed for council tax is also irrelevant.

The Tribunal therefore substitutes its own decision that the Ground Floor Room was a self-contained flat as defined in section 254(8). Section 254(2)(a) provides that an HMO must be “one or more units of living accommodation not consisting of a self-contained flat or flats”, and therefore if the rest of the house is an HMO the Ground Floor Room is not part of that HMO. Its occupants cannot count towards the total required by the 2018 regulations in determining whether a licence was required. A licence was therefore not required for the house (even if it was an HMO), Mr Barker committed no offence, and the application for a rent repayment order is dismissed.