[2024] UKUT 40 (LC)

Part 2, Housing Act 2004, is concerned with the licensing of HMOs. Section 61 requires any HMO to which Part 2 of the Act applies to be licensed unless a temporary exemption notice or management order is in force.

The circumstances in which Part 2 of the Act will apply to an HMO are provided for by section 55.

First, by section 55(2)(a) Part 2 applies to any HMO which falls within a prescribed description of HMO in regulations made by the Secretary of State. Originally, pursuant to regulations made in 2006, only HMOs of three storeys or more were prescribed for this purpose. Cluster flats of the sort found in North Lodge did not fall within the prescribed description because each flat generally comprised accommodation on the same level.

In 2018 a new classification of prescribed HMOs was adopted. By article 4 of the Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Order 2018 the requirement that an HMO must be of three-storeys or more was dispensed with and most HMOs occupied by five or more persons living in two or more separate households became prescribed. An exception was made in the case of any HMO satisfying the self-contained flat test in section 254(3) and situated in a block comprising three or more self-contained flats. The cluster flats at North Lodge have the benefit of this exception and they are therefore exempt from mandatory licensing under section 55(2)(a).

The alternative route by which an HMO may fall within Part 2 of the Act is provided by section 55(2)(b) which applies where any district of a local housing authority has been designated by the authority under section 56 as being subject to additional licensing.

The treatment of purpose-built student accommodation under the Housing Act 2004 is a little complex. The starting point is that cluster flats like those at North Lodge satisfy the self-contained flat test in section 254(2), 2004 Act, and are therefore capable of being HMOs. They are nevertheless exempt from mandatory licensing because they fall within the three or more self-contained flats exception in article 4 of the 2018 Order. But because they are HMOs, they may still need to be licensed if an additional licensing scheme has been made under section 56 in terms sufficiently wide to apply to them.

Separately, Schedule 14, 2004 Act lists certain buildings, or parts of buildings, which are not HMOs other than for the purposes of Part 1 of the Act (which is concerned with the enforcement of housing standards). If a building, or part of a building, falls within one of these categories it will not be an HMO at all and will not require licensing on any basis under Part 2.

By paragraph 4(1) of Schedule 14, a building or part of a building is not an HMO if it is occupied solely or principally by full-time students and is managed by a specified educational establishment or other specified manager of student accommodation. The Secretary of State is given power by paragraph 4(2)-(4) to specify educational establishments and other persons who manage student accommodation, but that power has not been utilised to specify managers which are not themselves educational establishments.

The appellant is not a designated educational establishment and the cluster flats at North Lodge therefore remain HMOs capable of coming within an additional licensing scheme.

Finally, section 233, 2004 Act enables the Secretary of State to approve codes of practice for the management of HMOs, including HMOs which are excluded from the scope of Part 2 because they are of a description falling within Schedule 14. Codes of practice have been approved for student accommodation, and the current version is found in the Housing (Approval of Code of Management Practice) (Student Accommodation) (England) Order 2022, replacing an earlier 2006 Order. The appellant subscribes to the 2022 Code. Presumably, conformity with an approved code of practice would be one of the matters which the Secretary of State would be likely to take into account when deciding whether to specify a manager for the purpose of paragraph 4 of Schedule 14, if that power ever came to be exercised.