Nottingham City Council is planning to go to the Court of Appeal after it lost an Upper Tribunal case on its decision to ban two small bedrooms being used as sleeping accommodation. David Hobbs explains why.
Should those living as a cohesive group in a House in Multiple Occupation (HMO) accept lower standards to those who do not form a cohesive group? Agree or disagree, Nottingham City Council is challenging this proposition with the Court of Appeal (CoA) after it recently lost an appeal to the Upper Tribunal (UT) against a decision to prohibit two small bedrooms being used for sleeping accommodation. (Click here for the UT decision)
We have issued two HMO licences to the same licence holder prohibiting two 2nd floor bedrooms due to the size of the bedrooms, particularly when taking into account the low head height. The council’s space standards guidance requires bedrooms to have a minimum usable floor area of 8m2 in HMOs. By usable floor area the council only includes floor area with head height of more than 5 foot (approx. 1.53m). The floor area of two separate bedrooms in different HMOs was:
- 5.89m2 (usable), total 9.75m2, and
- 6.68m2 (usable), total 10.16m2.
Whilst the council’s space standard guidance is 8m2, we are reasonable and flexible, to a point. We consider properties on a case by case basis and recognise that some properties do offer compensatory features – we take a holistic ‘whole house’ approach when considering whether the property is suitable or not.
The decision made it clear that the council should be even more flexible when applying its space standard guidance, particularly in relation to sloping ceilings in bedrooms. The council is challenging the decision that it should be even more flexible in applying its standards and believes there is a matter of principle at stake as the decision makes it clear that students (in this case) or those living in cohesive groups should, in effect, accept a lower standard of living (in this case smaller bedrooms). One could argue that students in particular spend more time in their bedroom than those that might live as a non-cohesive group. But why stop there? The council is concerned that this is the thin end of the wedge and may also apply across other areas of the HMO amenity guidance such as fewer kitchen / bathroom amenities, a smaller kitchen / living facilities.
As such the council has lodged an application for permission to appeal the UT’s decision to the Court of Appeal to seek a review of this decision and overturn it. This application has been accepted and we wait to hear what the outcome will be. It will also be interesting to see if there will be any clarification or further guidance from central Government on room sizes following the technical discussion document that was sent out in November 2015 about minimum bedroom sizes. This would provide a nationally consistent approach to how this issue is dealt with as there are variations across different councils.
The council is aware that this case will impact on other tenants and properties within Nottingham and, having discussed with colleagues in other councils, is aware it will impact across the country. The UT decision is already binding and this case is of national significance, so if anyone is interested in supporting the case through the Court of Appeal process (financially or otherwise), please let me know.