If only there was a simple answer!

The issue of room sizes within licensed HMOs is something that is regularly debated amongst property professionals and causes huge confusion for all concerned. So when it comes to room sizes, how do you know what rules apply in your area?

When looking at properties that require a licence under a mandatory HMO or additional licensing scheme, the starting point should be the Council’s HMO standards that have been introduced under Housing Act 2004.

You will normally find the Council’s HMO standards published on their website.

Each Council’s HMO standards normally include a section on minimum room sizes and these sizes vary according to the nature of the HMO and the size and layout of the property. You will also find there are significant variations in the minimum room sizes that each council adopt.

So are these HMO standards set in stone? Are they are arbitrary pass or fail standard or should they be interpreted and applied by the council with a degree of flexibility?

Well, the answer is certainly the latter and a recent Tribunal decision concerning a property in Oxford helps to illustrate the point well. On 16 December 2015, the First-tier Tribunal published a decision on an appeal against Oxford City Council’s refuse to vary the terms of an HMO licence (case reference CAM/38UC/HML/2015/0004).

In this particular case, the property was a four-bedroom two storey property arranged as a shared house with a large living room / diner, kitchen, downstairs shower room and first floor bathroom. It was situated in a high demand area and was run by a landlord with 24 years experience. The Tribunal commented that it was a well-maintained house with a pleasant living / dining room area and good facilities.

The issue related to one bedroom that was 5.08 m2, being 1.42m2 less than the minimum size specified in Oxford City Council’s HMO Standards.

When the licence was first granted in July 2012, the licence stated that this room could not be used as a bedroom unless alterations were carried out to ensure that the floor area of the room was not less than 6.51m2. However, the council also provided the landlord with an alternative option – the room could be let out if the tenant was provided with extra storage space, with exclusive use, in a suitable location elsewhere in the property. They also said the landlord would need to rehang the door to open outwards and relocate a shelving unit to the opposite wall.

Having considered all their options, the landlord carried out the recommended works including the provision of a separate wardrobe located on the ground floor for the tenant’s exclusive use. By the time of the appeal, the room had been rented out twice, albeit on a lower monthly rent in recognition of the smaller size. The first tenant had relocated to a larger room in the same property.

Oxford City Council are unusual in that most licences are granted for just 12 months and so the same condition was applied to the next licence they approved in February 2013.

When the licence came up for renewal again in 2014, a new case officer had taken over and adopted a different approach. They decided to remove the alternative option for making the room compliant, thereby preventing the room from being rented out. The landlord submitted representations and as the matter could not be resolved, an appeal was lodged and the matter came before the First-tier Tribunal.

At the hearing, reference was made to the Upper Tribunal case of Clark v Manchester City Council (2015), which established the status of Council HMO standards as guidance that needs to be interpreted with a degree of flexibility, rather than being a prescriptive set of requirements.

The council acknowledged that their HMO standards were guidance, should be interpreted with discretion and were not binding on the Tribunal.

In relation to a statement in their HMO standards that “The minimum size for a bedroom occupied by one person is to be 6.5 square metres and for two people 10.2 square meters. This is stated in the Housing Act 1985”, the council officer accepted this was incorrect and misleading as the Act does not impose such a condition.

The council argued that the room is question was too small for things such as studying and entertaining and that the communal space elsewhere did not sufficiently outweigh the lack of space in the bedroom. However, they accepted that it complied with the alternative space arrangements permitted in the earlier licences that had been granted and were unable to explain exactly what had lead to the licence condition being changed.

In relation to the whole house, the council officers confirmed it was not considered overcrowded and that it may be suitable for a higher occupancy of six people.

In response, Mr Madden, acting for the landlord, accepted the room was small but had a large window and high ceiling. It was not dark or cramped and the tenant was happy. The tenant also had use of the wardrobe on the ground floor and the garage for storage, combined will well appointed and spacious communal areas.

So what did the Tribunal decide? Well, they confirmed there was no suggestion that the property was overcrowded and took account of the earlier Clark v Manchester City Council Upper Tribunal decision. They felt that the reference to the Housing Act 1985 in the Council’s HMO Standards was misleading and they recognised that the landlord had complied with the conditions set down in the first two licences issued by the Council. Whilst accepting it was an appeal against a new licence, they thought that their should be some form of continuity and based on the re-hearing, they allowed the appeal. They decided the room could continue in based on the same stipulations imposed on the original licence.

The Tribunal also made clear the decision was not intended to set down any precedence on what room sizes are considered reasonable in Oxford and that the Council’s HMO Standards should still be the starting point. They said they had reached their decision based on the facts.

I understand Oxford City Council have requested permission to appeal this decision but that permission has been refused by the First-tier Tribunal. The Council could still make an application for permission to appeal direct to the Upper Tribunal (Lands Chamber).

So how should landlords proceed if they have concerns about the room sizes in their property? My advice would be to speak to the relevant council officers, discuss the circumstances and try to reach an agreement. Officers should use discretion and be flexible in their approach. If the matter cannot be resolved to the satisfaction of both parties, then an appeal can be lodged. You can also seek independent advice.

Having said that, things may be about to change. In late 2015 the government carried out a consultation on proposals to widen the mandatory HMO licensing scheme and introduce new national minimum room sizes for sleeping accommodation in HMOs. The consultation closed on 18 December 2015 and we expect them to publish their response in the coming weeks. So time will tell if we are about to see new minimum room sizes introduced for licensed HMOs after all.

You can read the full First-tier Tribunal decision here.

Updated 16 February 2016
The First-tier Tribunal refused Oxford City Council’s request for permission to appeal on 21 January 2016. Oxford City Council then applied directly to the Upper Tribunal for permission to appeal. That request was also refused and so the decision in this case stands.

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