Upper Tribunal Clarifies Definition of Self-Contained Flat in HMO Classification Under Housing Act 2004

Citation: [2024] UKUT 17 (LC)
Judgment on

Introduction

In the case of James Barker v Chantelle Kiran Shokar ([2024] UKUT 17 (LC)), the Upper Tribunal (Lands Chamber) revisits the intricacies surrounding the classification of a property as a House in Multiple Occupation (HMO) and the criteria for a self-contained flat. The case addresses the statutory interpretation of the Housing Act 2004 and the duty of the First-tier Tribunal (FTT) to provide adequate reasoning in its decisions.

Key Facts

The appellant, Mr. Barker, owned a “large rambling London townhouse” where he lived with his mother and rented out four rooms. During a relevant 12-month period, the respondent, Ms. Shokar, rented a room and later claimed a rent repayment order on the basis that the property was an unlicensed HMO.

The tribunal had to decide whether the ground floor room occupied by Mr. Barker and his mother constituted a self-contained flat excluding it from the HMO definition, and if the number of occupants qualified the property as an HMO requiring licensing.

The central legal provisions examined in this appeal are found in the Housing Act 2004. Specifically, the case revolves around the interpretation of:

  • Section 254(2), the “standard test” for defining an HMO.
  • Section 254(8), which defines a “self-contained flat”.
  • Section 55(2), which details the applicability of HMO licensing requirements.
  • Section 72, pertaining to offences related to managing an unlicensed HMO.

The case citation referenced within the analysis, Opara v Olasemo [2020] UKUT 96 (LC), deals with the inference about whether occupants use the property as their only or main residence for HMO classification.

Outcomes

The appeal succeeded on two grounds:

  1. Self-contained flat criterion: The FTT’s decision relating to the Ground Floor Room as not being a self-contained flat was set aside. The Upper Tribunal found that the FTT failed to apply the statutory definition from section 254(8) of the Housing Act 2004, which resulted in the erroneous conclusion that the Ground Floor Room was not a self-contained flat. Upper Tribunal Judge Elizabeth Cooke substituted the decision, establishing the Ground Floor Room indeed met the definition of a self-contained flat.

  2. Adequacy of reasons: The FTT did not provide sufficient reasoning for its calculation of the number of occupants using the building as their only or main residence, as required by section 254(2)(c). Due to the lack of evidence and unchallenged testimony from Mr. Barker that some of the occupants stayed briefly and did not use their rooms as their main residence, the tribunal was in error. The original decision was set aside on this basis as well.

Consequently, the property at 14 Bassett Road did not meet the criteria of an HMO requiring a licence, and Mr. Barker had not committed any offence under the Housing Act 2004.

Conclusion

The Upper Tribunal’s decision in the case emphasizes the importance of the precise application of statutory definitions when adjudicating on property classifications under the Housing Act 2004. Moreover, the case underlines the FTT’s duty to furnish adequately reasoned decisions when determining the use of the residence of occupants for the classification of HMOs. The judgment serves as a reference for what constitutes a self-contained flat within a building and clarifies the number of occupants that affect the licensing requirements for an HMO. This case is a significant contribution to the evolving jurisprudence in the context of housing law, especially the intricacies revolving around HMO classifications and rent repayment orders.

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