Guidance on room size standards for House in Multiple Occupation (HMOS)

Introduction

Frequently, when issuing guidance around the licensing of houses in multiple occupation (HMOs), whether it is mandatory or additional HMO licensing, local authorities set out minimum space standards for rooms in the property. HMO licences licence the property for a set number of persons and/or households. Relevant legislation requires that the Council must be satisfied that the house is reasonably suitable for occupation by not more than the maximum number of households or persons stated or that it can be made suitable if conditions are imposed. The Council therefore clearly has power to decide on maximum numbers. The question is whether this allows a Council to prescribe minimum room standards? Some authorities purport to do so and others merely issue advisory standards.

This issue has now been resolved by a decision of the Upper Tribunal.

Can local authorities set binding minimum room sizes under HMO licensing?

The answer to this is "no". However, there are other powers available to the authority because Part 10 of the Housing Act 1985 lays down overcrowding standards applicable to all kinds of property. This, in effect, sets a minimum room size of 6.5 square meters for adults. Any HMO licensing purposes and any local "standard" is now essentially for guidance purposes. It cannot be used as a substitute for the Council considering on an individual basis whether the specific property to be licensed is suitable for use by a set number of occupiers. The decision as to the suitability of premises has to take into account the premises as a whole; not just individual room sizes. Where appropriate to do so the Council can and should depart from the local guidance. Guidance will apply in the vast majority of situations in practice and can be treated as relatively firm by local authorities. Nevertheless, the Council must consider every property on its merits.

Can local authorities issue guidance?

The Upper Tribunal still allows for guidance to be issued and for Councils to stick to this provided it is reasonable to do so.

What are the powers of the Tribunal Appeal?

On appeal the First Tier Tribunal (Residential Property Tribunal) is entitled to form its own judgment and certainly any local authority guidance cannot bind the Tribunal.

What factors should the Council take into account?

The Council can, of course, take into account their own guidance. This could include issues such as how you deal with restricted head heights like sloping ceilings. This, however, has to be subject to the possibility of any exceptions. All of the circumstances will need to be looked at including the configuration of the room, the positioning of furniture, lighting and provision of power points, as well as the other amenities in the Property as a whole in terms of kitchens, bathrooms and communal living space. For instance the fact that communal living space significantly exceeds the minimum guidance might be a pointer towards a smaller bedroom being acceptable. Certainly, local guidance can identify a specific room size which will ordinarily be regarded as being too small to provide adequate sleeping accommodation or for other use. However, if other circumstances suggest it, then it may be the case that, viewed as a whole, the house is still reasonably suitable for a stated number. The decision should be focused more on the overall room sizes, facilities and amenities in the house as a whole rather than always concentrating purely on a specific room.

The decision

The case itself is Clark v Manchester City Council. In this case the Upper Tribunal did not reach a firm conclusion but issued guidance, then referred the case back to the First Tier Tribunal itself for a decision to be made in the light of this guidance.

How could Part X of the 1985 Act impact, i.e. general overcrowding standards?

This is illustrated by an example.

Take the situation where an HMO premises has 5 occupants (2 couples & an individual) 3 bedrooms - 2 large double rooms & one small single under 6.5 sq. m, with a shared kitchen diner/lounge room. Under Part X the permitted number would be 4 persons, as the small bedroom cannot be counted (nor could the diner/kitchen). Taking the judgement on face value an HMO licence may, in theory at least, end up stipulating 5 persons, but that number would exceed the permitted number of 4 - an unacceptable situation. So for licensing the Council's room sizes are strong guidance but necessarily binding, but in many situations a room size of 6.5 sq. m is the minimum room size for a single bedroom for an adult- so the Council (using Part X) can, in effect, "set" a room size. This particular tribunal decision has "wriggle room" because although the room floor area is below the statutory minimum of 6.5sq m (if assessing a room for sleeping), it also has gallery bed, which may increase the habitable "floor" area

Technically if a HMO is not liable to HMO licensing the Council cannot set any HMO standards which are "relevant" to that particular HMO although there is power to serve notice relating to overcrowding in the case of a non licensable HMO. The 1985 Act states that the minimum floor area for a sleeping room is 6.5 sq. m. for an adult. There is a minimum of 50 sq. ft in the case of a child under 10. For a room used in assessing the permitted numbers under Part X the minimum room size is 6.5 sq. m - so the Council can take action in that case.

National Minimum Room Size Standards

As already indicated, landlords should be aware that there are national minimum room size standards on overcrowding that will apply in most cases. Part X of the Housing Act 1988 sets a minimum room size for overcrowding which applies to all dwellings including licensed and unlicensed HMOs and will be the basis of most council guidance on licenced HMOs. If the room size in question is below this minimum then it is likely a licensing appeal would fail. However, it does not prevent landlords from appealing the licensing decision, particularly where the bedrooms are above the legal minimum size and/or they have large communal areas that should be taken into account. For reference, the national requirements on room sizes are as follows

Number of rooms Number of persons
1 2
2 3
3 5
4
5 or more 2 for each room
Floor area of room Number of persons
110 sq. ft. or more 2
90 sq. ft. or more but less than 110 sq.ft.
70 sq. ft. or more but less than 90 sq. ft. 1
50 sq. ft. or more but less than 70 sq. ft. ½

A child aged between 1 and 10 counts as a half person.

For quick reference please see the RLA's Simple Guide to Room Size.

Landlord & Investment Show
Martin Co
Six Hills House
Landlord Broadband

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