HMOs

October 11th, 2018 by James Goudie QC in Housing

In Nottingham City Council v Parr (2018) UKSC 51 the Supreme Court unanimously dismissed the Council’s appeal. The Council is the licensing authority for houses in multiple occupation (“HMOs”) in its area under Part 2 of the Housing Act 2004 (“2004 Act”). This appeal concerned two HMOs.

The 2004 Act requires HMOs to be licensed by the local housing authority (“LHA”). The LHA can grant the application under Section 64 of the 2004 Act if it is satisfied that, among other requirements, “the house is reasonably suitable for occupation by not more than the maximum number of households or persons [specified in the application or decided by the authority] or that it can be made so suitable by the imposition of conditions under Section 67 [of the 2004 Act]”.

The Council issued Guidance on the operation of the licensing system. This provides that the minimum space provision in the case of bedrooms in single occupation in HMOs is eight square metres, although a degree of flexibility is sometimes possible if other features are present.

Both properties are used for letting to students. Each has an attic bedroom, with an area of useable living space below eight square metres. In each case, the Council granted an HMO licence which imposed a condition prohibiting the use of the attic bedroom for sleeping.

The property owners appealed to the First-tier Tribunal against the imposition of the conditions. The First-tier Tribunal deleted the conditions imposed by the Council. In one case it substituted a condition that the attic bedroom may only be used for sleeping accommodation by a full-time student who resides in the bedroom for a maximum of ten months in each year. The Council appealed both decisions to the Upper Tribunal, which dismissed the appeals and also directed that the substituted condition be included in the HMO licence for the other property. The Council then appealed to the Court of Appeal, which upheld the decision of the Upper Tribunal and included further conditions in both HMO licences that the communal space be kept available for communal living only and that no bedrooms be let to persons other than full-time students.

The Council appealed to the Supreme Court, contending that the power to impose conditions under Sections 64 and 67 of the 2004 Act cannot be used to limit the class of persons for whom the HMO is suitable, and that the conditions imposed by the First-tier Tribunal, Upper Tribunal and the Court of Appeal are irrational and unenforceable.

The Supreme Court says that Section 64(3)(a) of the 2004 Act indicates that the purpose of the imposition of conditions is to make a house reasonably suitable for occupation by not more than the maximum number of households or persons specified in the application or decided by the LHA. Section 67(1)(a) provides that a licence may include such conditions as the LHA considers appropriate for regulating all or any of “the management, use and occupation of the house concerned”, and Section 67(2) sets out a non-exhaustive list of permitted conditions including “conditions imposing restrictions or prohibitions on the use or occupation of particular parts of the house by persons occupying it”.

These words in their natural meaning are sufficiently wide to include the conditions imposed by the Tribunals and the Court of Appeal. Such a reading is also consistent with the object and purpose of the 2004 Act. Elsewhere in Part 2 of the 2004 Act, the manner of occupation and characteristics of occupants are considered relevant in contexts connected with HMOs and housing standards generally. The guidance in respect of the 2004 Act also supports the view that the manner of occupation of a room and the type of occupant may have a bearing on the suitability of a particular room for a particular use. The Court does not consider that the conditions in issue introduce an exception for a category of persons or a defined set of circumstances. Furthermore, they do not permit occupation at a lower standard.

It is therefore appropriate to have regard to the proposed mode of occupation in considering the suitability of accommodation in an HMO. In particular, account should be taken of the proposed mode of occupation where it is likely to influence the quality of the accommodation made available to the occupant. However, this does not permit the application of lower standards than would otherwise be applicable. Thus, the power to impose conditions under Sections 64 and 67 of the 2004 Act can be used to limit the class of persons for whom the HMO is suitable.

The Court agrees with the Court of Appeal that the conditions imposed by the Tribunals were deficient in that they failed to require any part of the HMO to be available for communal living and did not require the bedrooms other than the attic bedrooms to be let to students. That deficiency was, however, cured by the further conditions introduced by the Court of Appeal. The condition limiting the occupation to persons engaged in full-time education is rational and enforceable. The Court considers, however, that the requirement limiting occupation to ten months in each year is irrational.

Therefore, subject to the deletion of the requirement of occupation for a maximum of ten months in each year, the conditions imposed by the Tribunals and the Court of Appeal in each case, considered cumulatively, were entirely lawful. Accordingly, the Supreme Court varied the conditions to delete the requirement of occupation for a maximum of ten months in each year but otherwise dismissed the appeal.

 

 

House In Multiple Occupation (“HMO”)

August 13th, 2018 by James Goudie QC in Housing

R ( Gaskin ) v Richmond upon Thames LBC ( 2018 ) EWHC 1996 ( Admin ) concerned a narrow, but important, issue, namely whether the owner of a HMO provides a “ service “ for the purposes of the EU Services Directive and the lawfulness under EU law of the fee demanded by the Council for a renewed licence. The Divisional Court held that in letting and managing private residential accommodation for profit Mr Gaskin did provide a “service” within the scope of the Directive, where the term is used in a very broad sense; and that the licensing provisions of Part 2 of the Housing Act 2004 are an authorisation scheme for the purposes of the Directive and Regulations. Therefore the Council was not entitled to demand payment of a licence renewal fee which infringed the Directive because it was not limited to the costs of the procedures and formalities of the authorisation scheme.

 

Homelessness

August 8th, 2018 by James Goudie QC in Housing

The issue on the appeal in Lomax v Gosport Borough Council (2018) EWCA Civ 1846 was whether the Council correctly applied Sections 175 and 177 of the Housing Act 1996 in concluding that it was reasonable for a severely disabled applicant for housing to continue to occupy her accommodation. In concluding that the Council’s conclusion was erroneous, the Court of Appeal said that in determining whether it is reasonable for a particular applicant to continue to occupy her current accommodation the same approach should be adopted as to reasonableness as in the case of the question whether an applicant has unreasonably refused an offer of suitable accommodation. The decision maker must have regard to all the personal characteristics of the applicant, and then take into account of those individual aspects. This includes subjective factors and an objective test. The test is with respect to the particular applicant and the particular accommodation, including its location.

 

Qualifying Persons For Provision Of Social Housing: Local Connection/Long-Term Residents Priority

July 26th, 2018 by James Goudie QC in Housing

In R (Gullu) v Hillingdon LBC [2018] EWHC 1937 (Admin) Mostyn J said, at paragraph 22:-

“… this case concerns the provision of social housing by a local housing authority. In my opinion there is … in this field a generous margin of appreciation. The court should be very cautious indeed when faced with a claim to strike down a measure which seeks to parcel out fairly a local authority’s housing stock at a time where there is a national housing crisis and where the demand for public housing vastly exceeds the supply. Were the court to afford an advantage to a class of claimants … then it will be at the expense of another group who will find themselves jumped in the queue. When it comes to housing local authorities have to make hard political judgments of a macro-economic nature which the courts are ill-equipped to second-guess. These judgments are the expression of the local democratic process. Hence the need for there to be a strong and obvious case before the court will interfere.”

The Judge found that, if there were any discrimination in the Council’s allocation scheme, it was justified, and there was no failure to comply with the PSED.

 

Allocation Policy

July 16th, 2018 by James Goudie QC in Housing

In R (TW, SW and EM) v Hillingdon LBC [2018] EWHC 1791(Admin) the Claimants challenged the Social Housing Allocation Policy (December 2016) (“the Allocation Scheme”) of the London Borough of Hillingdon (“the Council”) in so far as it provides: (1) a condition that only households with at least 10 years’ continuous residence in-borough qualify to join the three welfare-based bands (A-C) of its housing register (“the residence qualification”); (2) additional preference for such households who are in Bands C and B of the housing register (“the residence uplift”), and (3) additional preference for those in Bands C and B who are working households on low income (“the working household uplift”). Choudhury J granted permission on three grounds. First, that both the residence qualification and the residence uplift discriminate indirectly and unlawfully under Sections 19 and 29 of the Equality Act 2010 (“EA”) against persons with the protected characteristic of “race” and that, as Irish Travellers, the Claimants have such a characteristic (Ground 1). Second, that the working household uplift discriminates indirectly and unlawfully under the same statutory provisions against persons with the protected characteristics of “disability” and “sex” (Ground 2). Third, in formulating the three provisions under challenge the Defendant acted in breach of its obligations under Section 11(2) of the Children Act 2004 (“CA”) (Ground 3).

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Homelessness Review

July 13th, 2018 by James Goudie QC in Housing

The three appeals [2018] EWCA Civ 1616 raised a common issue concerning what is required of local housing authorities in order to comply with the Review Regulations which apply to a review under Section 202 of the Housing Act 1996 when a reviewing officer sends out a minded-to letter indicating an intention to make a decision contrary to the interests of the applicant for homelessness assistance. In short, the question is whether the letter must specify in terms that the applicant (or a representative) may make representations to the reviewer orally at a face-to-face meeting. The Court of Appeal holds that there is no such requirement.   No more is required for an effective notification than to state that the applicant “may make representations to the reviewer orally or in writing or both orally and in writing”. Nothing more is required in order to conform with the principle of legality and the fundamental requisite of the rule of law that the law should be made known and that individuals must be able to know of their legal rights and obligations. Patten LJ, with whom David Richards LJ agreed, said, at paragraph 24:- Read more »

 

HMOs

June 21st, 2018 by James Goudie QC in Housing

MHCLG has issued detailed non-statutory Guidance for Local Housing Authorities, “Houses in Multiple Occupation and residential property licensing reform”, on the implementation of requirements set out in 2018 Statutory Instruments on the licensing of HMOs. The scope of mandatory licensing has been extended so that properties used as HMOs in England which house 5 people or more in two or more separate households will in many cases require a licence. The minimum size to be applied to rooms used for sleeping accommodation has been deferred.  Requirements have been added relating to the provision of refuse disposal in licensed properties.

Chapter 2 of the Guidance relates to the extension of mandatory HMO licensing, including implementation and transitional provisions. Chapter 3 relates to new mandatory licence conditions, that is mandatory sleeping room sizes and waste disposal requirements, including sanctions.

 

Allocation and Homelessness

June 19th, 2018 by James Goudie QC in Housing

The Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2018, SI 2018/730, coming into force on 9 July 2018, amend the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 in order to make a new category of persons eligible for an allocation of social housing and homelessness assistance. They make provision for persons who have been transferred to the United Kingdom under the Immigration Act 2016 s.67 and have limited leave to remain under para. 352ZH of the Immigration Rules to be eligible for an allocation of social housing and homeless assistance if they are “habitually resident” in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.
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Damages

June 15th, 2018 by James Goudie QC in Housing

In XPQ v Hammersmith and Fulham LBC (2018) EWHC 1391 (QB) Langstaff J held that Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings does not enable a trafficked person to claim damages for any failure by a local housing authority to provide accommodation that is safe and appropriate.

 

Possession Order

March 8th, 2018 by James Goudie QC in Housing

In Davies v Hertfordshire County Council (2018) EWCA Civ 379 the Court of Appeal considered whether a failure by the Council to comply with its statutory duties under Section 11 of the Children Act 2004 could provide a defence to a claim for possession.  Sharp LJ said:-

“17.    The obligation imposed on those who are subject to the statutory duty under section 11 is not confined to the making of strategic arrangements: it is to ensure that decisions affecting children have regard to the need to safeguard them and promote their welfare. That does not mean however that the particular function being carried out is redefined, and the reach or impact of the section 11(2) duty is qualified both by the nature of the function being carried out, and what the particular circumstances require: …” Read more »