Council gets HMO licensing rules wrong
Upper Tribunal rules local standards councils set for HMO landlords are there for guidance and don't have the force of law.
Local standards councils set for house in multiple occupation (HMO) landlords are there for guidance and do not have the force of law, the Upper Tribunal (Lands Chamber) has ruled.
Tribunal deputy president Martin Rodger was hearing an appeal by landlord Dhugal Clark against decisions by Manchester City Council and the First Tier Tribunal to reject changing his HMO licence to allow six tenants instead of five tenants to rent out his property in the city.
Rodger overturned the earlier decisions on the grounds that the First-Tier Tribunal should have reviewed the reasons for the council’s rejection of Clark’s application.
If they had, they would have seen the council was working from their own minimum floor space standard for an HMO which is helpful guidance, but not enforceable in law, he explained.
“Pointing out what factors a council will consider when deciding whether a property was large enough for a number of people to live in is clearly helpful. What a council cannot do is to adopt mandatory standards with which non-compliance would result in a determination that a house was unsuitable," he said.
"To do that would be to fetter its own discretion, and to usurp the power of the Secretary of State to prescribe national standards. What was required was a consideration of the room and the property as a whole on their merits, rather than by reference to a fixed minimum floor area."
Rodger also argued that standards set in Section 65 of the Housing Act 2004 and minimum standards in national guidance offered by the Local Government Association and Manchester City Council’s own guidance were confusing.
"Where the council’s own standard is set by minimum space standards prescribed by Section 326 of the Housing Act 1985, and explained on that basis, there is a risk that it will be seen as a statutory minimum with the same force as the prescribed standards under Section 65 of the Housing Act 2004," he said.
"There is nothing objectionable in the use of the 6.5 square metre standard derived from the 1985 Act as guidance, but it has no statutory force in its own right for HMO licensing.
“The introductory note to the council’s guidance document offers the possibility of a flexible approach only where 'the solution is within the legislative framework'.
“The council’s decision letter suggests that the minimum space standard is regarded by housing officers as part of the 'legislative framework' from which they are not free to depart. Such an approach is based on a misunderstanding."