BOND HOUSING GROUP (LINCOLN) LTDApplicantCITY OF LINCOLN COUNCILRespondent
Before
Tribunal Judge A M DaviesP MountainDate 5 October 2023Property: 173 CARHOLME ROAD, LINCOLN, LN1 1RUType of application: Appeal against HMO licence conditions: Housing Act 2004, Schedule 5, paragraph 31(1)
DECISION
[1]The HMO licence dated 2 December 2022 issued in respect of 173 Carholme Road, Lincoln is confirmed save that the tables at Schedule 2a) and 2b) are varied to read as follows:[2]2a) Amenity Quantity Number of storeys to HMO 2 Number of rooms providing sleeping accommodation 6 Number of communal living/dining rooms 0 Number of shared kitchens 0 Number of exclusive kitchens 6 Total number of fixed sinks 6 Total number of cookers 6 Number of shared bathrooms with toilet 0 Number of shared bathrooms without a toilet 0 Number of shared separate toilets 0 Number of exclusive showers/baths 6 Number of exclusive toilets (in shower rooms) 6 Total number of wash hand basins 6 Maximum number of units of accommodation 6 Maximum number of households occupying house 6 Maximum number of persons occupying house 7[3]2b) Room identification Size (m2) Manner in which room can be occupied Unit 1 Ground floor front 14.7 Single person with ensuite shower room and kitchen Unit 2 Ground floor middle rear 14.53 Single person with ensuite shower room and kitchen Unit 3 Ground floor rear 15.36 Single person with ensuite shower room and kitchen Unit 4 First floor front 18.46 Single person or couple with ensuite shower room and kitchen Unit 5 First floor middle 14.3 Single person with ensuite shower room and kitchen Unit 6 First floor rear 10.75 Single person with ensuite shower room Kitchen First floor rear 4.23 Kitchen for food storage, preparation and cooking by the occupier of unit 6 Manager’s room Ground floor middle front 11.21 Room for the manager’s use only
REASONS
[1]The Applicant is a respected landlord providing high quality studio accommodation in HMOs and works closely with the City of Lincoln Council to deliver safe housing within the terms of the Housing Act 2004 (the Act).[2]In December 2022 the Respondent issued an HMO licence to the Applicant in respect of 173 Carholme Road subject to measurements and conditions which have been discussed and largely agreed between the parties. The following issue has not been agreed: whether room 7 is suitable for use as self contained living accommodation incorporating bedroom, kitchen area and en-suite shower and toilet.[3]The Respondent takes the view that at 11.21m2 this room is too small for use as a self-contained unit of accommodation, and has permitted its use only as a communal lounge and kitchen. No enforcement action has been taken to date to safeguard the present occupant from any perceived hazard arising from his occupation of the room.[4]The Applicant points out that the room has been – and is being - used successfully as a self-contained unit, and invites the Tribunal to vary the licence so as to enable it to continue this use. If this is not agreed by the Tribunal the Applicant proposes that the kitchen in room 7 should be removed and replaced by a tea station and microwave, with the occupant also having the use of a kitchen situated on the first floor outside room 6. Again, if this is not agreed by the Tribunal, the Applicant’s third proposal is that room 7 is reserved for the exclusive use of the building’s manager.[5]In response to the Respondent’s proposal for room 7, the Applicant says that there is no appetite among its tenants for shared indoor living space and that the suggested communal lounge and kitchen would not, in practice, be used. The Tribunal accepts that this is, in general, true. The law[6]There are no statutory minimum standards for studio accommodation of the type provided by the Applicant at 173 Carholme Road. The relevant law is set out in the Act as follows: Paragraph 31(1) in Part 3 of Schedule 5 to the Act deals with appeals against a local housing authority’s decision to refuse or to grant an HMO licence. Paragraph 34(2) provides that the appeal is to be by way of a re-hearing (of the application for a licence) and may be determined having regard to matters of which the authority were unaware. Paragraph 34 continues “(3) The tribunal may confirm, reverse or vary the decision the local authority. (4) On an appeal under paragraph 31 the tribunal may direct the authority to grant a licence to the applicant for the licence on such terms as the tribunal may direct.”[7]Sections 64 and 65 of the Act set out the requirements for suitability of a property for multiple occupation as follows: “Section 64 (3)(a) ..…that 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; Section 65 (1) The local housing authority cannot be satisfied for the purpose of section 64 (3)(a) that the house is reasonably suitable…...if they consider that it fails to meet prescribed standards for occupation by that number of households or persons……. Section 65 (4) The standards that may be …… prescribed [by regulation] include (a) standards as to the number, type and quality of – ………..(ii) areas for food storage, preparation and cooking………[8]Section 67 of the Act provides: “(1) A licence may include such conditions as the local housing authority consider appropriate for regulating all or any of the following –(a) the management, use and occupation of the house concerned, and(b) its condition and contents.”[9]The regulations made under section 65 are the Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions)(England) Regulations 2006 (“the 2006 Regulations”). These set out at paragraph 3 the “prescribed standards” to be applied to shared kitchens where units of accommodation within the HMO do not contain facilities for cooking: “(a) there must be a kitchen, suitably located in relation to the living accommodation, and of such layout and size and equipped with such facilities so as to adequately enable those sharing the facilities to store, prepare and cook food….” The Respondent’s Adopted Standards[10]As required by the Act, the Respondent has drafted and implemented standards (“Adopted Standards”) to be applied to HMOs within its area.[11]Appendix 12 of the Adopted Standards sets out the minimum sizes for rooms and provides that: Where there is a shared kitchen but no shared lounge or dining facilities – the area of a room let for occupation by one person is to be at least 10m2. Where cooking facilities are provided within a room let for occupation by one person - the area of the let room is to be at least 14m2. Where a shared kitchen is to be used by between 1 to 5 people - the area of the kitchen is to be at least 7m2.[12]The Adopted Standards also provide that “Regard will be had to layout of rooms including doorways and location of appliances and other factors contained in the published advice concerning overcrowding standards and the Housing Health and Safety Rating System. Space taken by en-suite shower rooms is not included in the room size assessment.” The floor space requirements of the Adopted Standards are taken into account by the Tribunal since they are designed to avoid risks to the health and safety of occupiers. However such requirements are not mandatory and the Tribunal is required to take a broader approach when considering the suitability of a room as living accommodation, as explained by Martin Rodger QC in Clark v Manchester City Council [2015] UKUT 129 (LC) where he stated at paragraph 53: “In every case the views of the local housing authority will be relevant and merit respect, but once the tribunal has carried out its own inspection and considered all of the characteristics of the Property, including the size and layout of individual rooms and any compensating amenities, it will be in a position to make its own assessment of the suitability of the house for the proposed number of occupiers.” Property inspection[13]The Tribunal inspected the property on 5 October 2023 with representatives of the parties and the Applicant’s property manager who had access to the occupants’ rooms in their absence and with their permission. The property is a two storey period property containing, at present, 7 self contained units of accommodation. Outside to the rear there are two small private yards for the sole use of the occupiers of the ground floor rear rooms, and a larger enclosed area with picnic table and covered bike shelter for use by all the residents. This area also contains a storage shed, which was not being used when the Tribunal inspected.[14]In its current layout, there are no shared facilities in the property other than laundry facilities situated in cupboards off the corridors. Room 6 on the first floor at the rear of the property has no internal kitchen but has the use of an adjacent kitchen which at 4.2m2 is smaller than the Respondent’s Adopted Standard for a kitchen shared by up to 5 people (7m2.).[15]The rooms in the property are designed and furnished in such a way as to enable the occupants to make full use of the available space.[16]Room 7 has a single window giving on to a full height brick wall approximately 1 meter distant. As a result minimal natural light enters the room. The lack of any external view creates a cramped and enclosed feeling. To allow for the kitchen facility in the room, work-space is limited to a shelf-like table. Findings[17]The lack of natural light and external view combined with the small floor area of room 7 renders it unsuitable for use as self-contained long-term living accommodation.[18]Removing the kitchen from room 7 and replacing it with a tea station with or without microwave would require the occupant to use the first floor kitchen in common with the occupant of room 6. This kitchen is suitable in terms of size and facilities for its use to be shared by 2 people. However it is not considered suitable for use by the occupant of room 7 because that would involve the occupant in carrying food up and down the staircase. The Tribunal considers that this arrangement would not only carry health and safety risks but would be inconvenient and stressful for the occupant of room 7. The prescribed standard set out in the 2006 Regulations, ie that the kitchen must be “suitably located in relation to the living accommodation” would not be satisfied.[19]The subjective experiences and opinions of the Applicant’s tenants are not to outweigh the Tribunal’s objective assessment of the property. The Applicant’s witness statements supplied by current and former tenants have been noted but not relied upon. However the Tribunal accepts that many tenants of the Applicant’s studios do not like sharing accommodation and may have particular difficulty in sharing a kitchen where they wish to comply with strict food preparation rules.[20]The third option suggested by the Applicant – ie to identify room 7 as a manager’s room – is therefore the alternative acceptable to the Tribunal. As this room will no longer be let accommodation the Tribunal has not specified whether any change to the room’s existing kitchen and shower room arrangements should be made. This will be a matter for the Applicant to decide. Tribunal Judge A Davies 5 October 2023