[2024] UKUT 17 (LC)

Ms Shokar was the applicant in the FTT. Her case was that for much of the period of time in question all four rooms were let, and that therefore there were five or more people living in the house including Mr Barker and his mother. In her statement of case, which is before the Tribunal in the appeal bundle, she addressed the argument that the Ground Floor Room was a self-contained flat by saying that it had not been self-contained in the 1990s, that it was not separately assessed for council tax, and that Mrs Barker shared the ground floor kitchen with the other residents.

Mr Barker’s case was that the Ground Floor Room was a self-contained flat, as set out in paragraph 5 above. In his witness statement he produced a plan showing that it had a toilet, personal washing facilities and cooking facilities. In his skeleton argument Mr Hunt set out section 254(8) and argued that in light of its having these amenities for the exclusive use of its occupants it met the definition in section 254(8) and was therefore not part of an HMO under the standard test in light of section 254(2)(a).

This is what the FTT said in its decision about the Ground Floor Room:

“18.

… The Tribunal did have the benefit of the site visit. The room is a large high ceiling space with a converted area to the rear that contained a small kitchen type space and a toilet and shower area. Above it was a small sleeping area formed from a platform above the kitchen and shower spaces. The door to the room was an internal wooden panelled door that matched the other internal doors within the building. The Tribunal noted that there was no Chubb or Ingersoll lock on the door but there was an original old-style deadlock. There did not appear to be any fire safety work made to this door.

19.

The Tribunal heard oral evidence from the respondent who asserted that this room was a self-contained separate unit within the building. The Tribunal was not persuaded of this. It seemed to the Tribunal that this was merely a room within the building that formed part of it, albeit with some limited facilities to the rear including a rather restricted sleeping area. Accordingly, the Tribunal from its own observations from the site visit was of the view that this room was part of the whole building and as such occupants would be included in the calculation of persons for the purposes of calculating whether or not there was an HMO at the property.”

As to the occupancy of the rest of the house, Mr Barker set out in his witness statement a schedule of the occupancy of the four rooms. On his evidence there was a succession of occupiers during the relevant period, nine in all but never more than four at once, and some of them stayed only a month or two. Mr Hunt in his skeleton argument before the FTT analysed the relevant period in detail and argued that residents who stayed there only for a month or two were not using their room as their only or main residence.

Some of those occupiers gave witness statements, but non attended the hearing before the FTT and so none could be cross-examined.

As to the occupancy of the house, the FTT said this:

“20.

… The Tribunal turned to the schedule prepared by the respondent that he included in his evidence to show the levels of occupancy during the period the claim. On his calculations, which the Tribunal accept, it would appear that for some 40 weeks of that period or 76% of the time there were sufficient numbers including Mr and Mrs Barker to take them up to or over the 5-person threshold. To that end the Tribunal is satisfied that for the 40 weeks mentioned above there was an HMO and this was not licensed and as such the respondent has committed the offence set out above.

Having determined that the house was an HMO with five or more occupants during the relevant period, the FTT then went on to decide to make a rent repayment order in respect of those 40 weeks and made an order that Mr Barker repay £3,750 to Ms Shokar.