[2024] UKUT 17 (LC)

Not all HMOs have to be licensed; section 55(2) of the 2004 Act explains that Part 2 applies:

“to the following HMOs in the case of each local housing authority–

(a)

any HMO in the authority's district which falls within any prescribed description of HMO, and

(b)

if an area is for the time being designated by the authority under section 56 as subject to additional licensing, any HMO in that area which falls within any description of HMO specified in the designation.”

So in order to determine whether a building needs an HMO licence, it is necessary to determine first whether it is an HMO and second whether either of the conditions in section 55(2)(b) applies.

As to that second question, it was common ground before the FTT that condition (b) does not apply because at the relevant period the local housing authority had not designated the relevant area as being subject to additional licensing (although it has done so since). As to condition (a), the prescribed description is to be found in the Licensing of Houses in Multiple Occupation (Prescribed Descriptions (England) Order 2018, which provides that a licence is required only if the HMO is occupied by five or more persons.

Turning back to the first question, section 77 defines an HMO as a property that meets one of the tests set out in sections 254 to 259, and it is not in dispute that the relevant test in the present case is the “standard test” set out in section 254(2):

“(2)

A building or a part of a building meets the standard test if–

(a)

it consists of one or more units of living accommodation not consisting of a self-contained flat or flats;

(b)

the living accommodation is occupied by persons who do not form a single household (see section 258);

(c)

the living accommodation is occupied by those persons as their only or main residence or they are to be treated as so occupying it (see section 259);

(d)

their occupation of the living accommodation constitutes the only use of that accommodation;

(e)

rents are payable or other consideration is to be provided in respect of at least one of those persons' occupation of the living accommodation; and

(f)

two or more of the households who occupy the living accommodation share one or more basic amenities or the living accommodation is lacking in one or more basic amenities.

Section 254 (8) provides, so far as relevant:

“(8)

In this section–

“basic amenities” means–

(a)

a toilet,

(b)

personal washing facilities, or

(c)

cooking facilities;

…

“self-contained flat” means a separate set of premises (whether or not on the same floor)–

(a)

which forms part of a building;

(b)

either the whole or a material part of which lies above or below some other part of the building; and

(c)

in which all three basic amenities are available for the exclusive use of its occupants.”

Mr Barker told the FTT that the Ground Floor Room has a toilet, personal washing facilities and cooking facilities, and Mr Hunt argued that the Ground Floor Room is a self-contained flat within the meaning of section 254(8) (being part of the building and directly below the first floor). If that is correct then even if the rest of the house is an HMO, Ground Floor Room would not be part of that HMO – in exactly the same way as the admittedly self-contained basement flat was left out of account. And therefore even if the rest of the house was an HMO, it cannot have required a licence during the relevant period because there were never more than four occupants in the rest of the house during that period. The FTT found against Mr Barker on that point, and the first ground of appeal is that it was wrong to do so.

The second ground flows from section 254(c); the argument is that the FTT made no express finding that the four occupants of the let rooms were using the premises as their only or main residence, without making findings of fact to that effect, despite the fact that none of them gave evidence at the hearing and that Mr Barker’s evidence was that three of the occupiers stayed for such short periods (two months or less) that the rented room cannot have been their only or main residence. Yet the house was found to be an HMO, and so the FTT must have taken the view that the occupants were all using the accommodation as their only or main residence, but how it came to that view was unexplained.