What is the acceptable size for a bedroom in a licensed HMO?

Tuesday, March 19th, 2019 - By Richard Tacagni, Managing Director at London Property Licensing

What may seem like a simple question unfortunately has no simple answer. In my experience, assessing the suitability of bedroom sizes is one of the most challenging aspects of HMO licensing. It is an issue I first touched on in a blog published in 2016 (read here).

In this latest article, I will try to answer the question by setting out a framework for assessing HMO bedroom sizes. I will also give practical examples by referring to some recent tribunal decisions.

As you may know, the government have introduced new absolute minimum sizes for bedrooms in Houses in Multiple Occupation (HMOs). These new minimum sizes apply to properties in England where a mandatory HMO or additional licence has been approved on or after 1 October 2018.

Under the Licensing of Houses in Multiple Occupation (Mandatory Conditions of Licences) (England) Regulations 2018, the new minimum bedroom sizes are:

• 4.64m2 for a child under 10 years old
• 6.51m2 for one person over 10 years old
• 10.22m2 for two people over 10 years old

Whilst this may seem a simple and logical approach that can be easily applied, the housing regulatory framework is never that simple. Let me explain why.

These minimum sizes do not apply to licences approved before 1 October 2018, to HMOs licensed under a selective licensing scheme or to HMOs that do not require licensing. Properties that fall into these categories are subject to a different assessment methodology that can lead to the service of an HMO overcrowding notice or action under the Housing Health and Safety Rating System (HHSRS).

It is also important to remember the new regulations set absolute minimum sizes. They are not ideal room sizes and meeting these requirements is no guarantee the room size will be adequate. As an example, a bedsitting room containing kitchen facilities needs to be larger than a bedroom in a shared house where the occupant has access to a shared kitchen and living room – this is common sense.

To try and address this issue, each council publish local HMO standards setting out their room size expectations. However, in the absence of national guidance, each council publish different room size requirements, which can vary considerably. This in turn creates uncertainly for landlords and agents when trying to understand and interpret the rules.

So, what is the status of local authority HMO standards? Well, the Upper Tribunal have considered this matter and ruled that they are not set in stone. Instead, they are guidance and need to be applied with a degree of flexibility having regard to the use, layout and occupancy of each property. Carrying out such an assessment can be challenging, particularly for councils that seek to process licence applications and approve licences without visiting the property.

Fortunately, the licence approval process provides the opportunity to comment on a draft licence before it is approved. The council must give at least 14 days to submit a written representation. They must then consider the representation and make any necessary changes before the licence is approved. In my experience, this process works well. A detailed and well-argued representation can often succeed in getting the terms and conditions of the licence amended.

Ultimately, if agreement cannot be reached, an appeal can be submitted to the First-tier Tribunal (FTT) within 28 days of the licence being approved. Whilst FTT decisions are not binding, I will mention two recent cases which may help to illustrate how the appeals process works.

Appeal against refusal to vary the terms of a licence (Ref: LON/00AG/HMR/2018/0003)

In 2017, an additional licence was approved by Camden Council for a three bedroom maisonette occupied by three friends on a single tenancy. The tenants had the benefit of a shared bathroom, a spacious kitchen/diner/living room and a roof terrace.

When the licence was approved, the council restricted occupancy to a maximum of two people as the third bedroom (6.3m2) was considered too small. However, they agreed the third occupant could remain living at the property until their tenancy expired.

I was instructed to advise the landlord and in March 2018, an application was submitted to vary the licence. We sought to increase the occupancy limit to three people and set out the reasons why. The council refused the request and an appeal was lodged.

During the appeal hearing, the landlord set out his case:

• The third room had been occupied as a bedroom for the last 30 years;
• The new absolute minimum bedroom sizes did not apply as the licence was approved before 1 October 2018;
• The size of 6.3m2 was only marginally lower than the 6.5m2 that was being applied by some other councils;
• The tenant could have exclusive use of a cupboard immediately outside the bedroom, increasing the overall space to 6.83m2; and
• It was not possible to enlarge the room without increasing the risk of falls on stairs, due to the internal layout.

The tenant occupying the smallest room provided a witness statement to support their landlord’s appeal.

The appeal was successful. The FTT varied the terms of the licence to allow occupancy of the property by three people.

Appeal against the terms of a licence renewal (Ref: BIR/00FN/HSV/2018/0001)

Whilst I had no involvement in this second case, I think it provides a useful insight into how the FTT decided to assess the suitability of bedroom sizes.

The case involved an HMO arranged as 7 bedsits which had been licensed by Leicester City Council since 2012. When the landlord applied to renew their licence, they had made changes to the internal layout and sought to increase the occupancy limit to 10 people in 10 bedsitting rooms.

The new HMO licence allowed just 5 bedsitting rooms as the council considered the other rooms to be substantially smaller that the 14m2 set out in local DASH guidance for a bedsitting room containing kitchen facilities. The landlord appealed.

It was acknowledged by both parties that the role of the FTT was to conduct a complete rehearing. The landlord instructed two independent experts and evidence was provided by two council Environmental Health Officers. Both sides accepted there were no category 1 or higher level category 2 hazards under the HHSRS.

Faced with conflicting evidence, the FTT explained that a flexible approach was required in the absence of any statutory guidance. They viewed the DASH guidance as aspirational and felt that smaller rooms could be acceptable. In assessing whether each room was reasonably suitable for occupation, they took account of a range of factors including:

• The quality of the floor area and the amount of useable space;
• Level of natural lighting;
• Location of doors;
• Shape of the space; and
• Any other communal living space.

By applying this approach to the five disputed rooms, the FTT found that three of the rooms were reasonably suitable for occupation and two were not. As a result, the appeal was successful in part and the occupancy limit was increased to eight people in eight households.

Conclusion

When assessing how many people can occupy each bedroom in a licensed HMO, it is important to consider each case on its merits. Whilst local HMO standards are an important point of reference, compliance with local guidance is not the only factor that should be taken into account.

If a landlord believes the proposed occupancy limit on their draft licence has been set too low, they can submit a written representation and request changes to the terms and conditions. If agreement cannot be reached, there is the opportunity to appeal to the FTT within 28 days of the licence being approved, in which case the Tribunal will consider the matter by way of a rehearing.

If you have any questions and would like to discuss a licensing issue, please contact Richard Tacagni, Chartered Environmental Health Practitioner and MD at London Property Licensing, email info@londonpropertylicensing.co.uk.

Please note that the views and opinions expressed in these blogs are those of the author and do not necessarily represent the views of London Property Licensing. These blogs are designed to stimulate discussion and debate within the property industry. This article does not represent legal advice and should not be treated as such.

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