Guidance on Room Size Standards for House in Multiple Occupation (HMOs)
When deciding whether to grant an HMO licence and how many people to grant it for the local authority must be satisfied that the property is 'reasonably suitable' for the number of people the licence applicant has asked for, or for such other number as the local authority may decide. A key part of that decision is the size of the individual bedrooms and whether they are suitable to be occupied by one, two or more, or no people.
Frustratingly, there is limited guidance from central government as to how to determine the suitability of a room. To help with this, local authorities often set out their own guidance on minimum acceptable room sizes for rooms in the property. However, this is only guidance, it is not a standard which if not adhered to will mean that a subject room is automatically unsuitable. The decision as to the suitability of premises must 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 its own 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. Despite this, many local authorities treat their own local guidance as a standard and will reject rooms solely based on the fact that they are not large enough to meet their preferred standard.
What are the powers of the Tribunal Appeal?
If a landlord is unhappy with a local authority decision on HMO licensing the first step is to make representations on the basis of the initial intention notice setting out the proposed licence and its terms. This should focus on the reasons why the property is suitable as a whole, despite the fact that some rooms may not meet the standards. Once a final decision notice has been issued then an appeal can be considered. On appeal the First Tier Tribunal (Property Chamber) is entitled to form its own judgment and certainly any local authority guidance cannot bind the Tribunal although they should consider it.
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 of occupiers. 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. It should be noted that despite the effort of some landlords to show otherwise, garden space is not acceptable as alternative usage space as it is only available for part of the year.
National Minimum Room Size Standards
Following some cases where the Tribunal accepted the use of rooms in HMOs that local authorities found unacceptably small the government has made a change to the law which will apply to all new and renewed licences from October 2018. It will not apply to existing licences until they come to be renewed. These new standards will operate as a condition applied to these licences when they are granted that will prohibit the use of specific room sizes for sleeping accommodation. Rooms that are prohibited for sleeping accommodation are still able to be used for other purposes.
The new requirements are that a room for the use of one person over 10 years of age must be at least 6.51sqm in size. For two people over 10 that rises to 10.22sqm. For one person under 10 the room can be smaller, down to 4.64sqm. Nobody can sleep in a room smaller than 4.64sqm and the local authority is required to keep a register of such rooms. When calculating the area account is taken of the wall to wall area of the sleeping room only, discounting any areas where the ceiling height is less than 1.5m. However, this measurement is only of the sleeping room and so any additional space such as an en suite bathroom is not part of the calculation.
On the first application for a licence after October 2018 or the first renewal the local authority, at its discretion, may allow a grace period of up to 18 months for a landlord to deal with any room which is below the threshold and is occupied as sleeping accommodation, whether by moving the tenant out or by adjusting it to make it larger.
If on inspection a local authority finds that a room is being used which is too small to meet the requirements then, provided the landlord has not condoned or allowed the use of that room, they can provide a landlord with a grace period of up to 18 months to resolve the situation, presumably by asking the tenants to leave. This power must be inserted into a licence. However, it will not be available to landlords who have permitted the occupation of overly small rooms and they are at risk of prosecution.
Minimum Room Sizes and Licensing Decisions
It should be borne in mind that the new minimum room sizes are minimums, not acceptable sizes. Just because a room is larger than the minimum does not mean it is automatically acceptable. Local authorities will still be able to issue guidance on what they are likely to find acceptable and also to consider rooms as part of the larger whole. As before, though they must consider rooms as part of a larger property and must not simply reject rooms which do not meet their local guidance, although they must reject rooms which do not meet the new nationally set standards.