A council can set space standards for rooms in houses in multiple occupation but must not exclude the possibility that a smaller room might still be acceptable, the Upper Tribunal (Lands Chamber) has said.
The case arose over a house in Manchester where an additional small bedroom had been created by an unusual split-level adaptation.
Manchester City Council said it was too small to be used, but the home’s owner Dhugal Clark appealed to the First Tier Tribunal, which found for the council. Clark then appealed further.
In Clark v Manchester City Council  UKUT 129 (LC) Deputy President Martin Rodger said it was obviously appropriate for a local housing authority to give guidance, both to its own officers and to the public, on how it intended to address the issue of a room's suitability.
"What it could not do was to adopt mandatory standards non-compliance with which would result in a determination that a house was not suitable," he noted. "To do that would be to fetter its own discretion, and to usurp the power of the Secretary of State to prescribe national standards. What was required in each case was a consideration of the room and the property as a whole on their merits, rather than by reference to a fixed minimum floor area."
The judge said it was "clearly permissible" for a local housing authority to give guidance on what factors it would take into account in determining whether a house was reasonably suitable for use as an HMO by a certain number of occupiers.
The size of the accommodation was obviously a relevant factor in any such assessment, the Deputy President said. "I see no reason why guidance should not identify a specific room size which will ordinarily be regarded as too small to provide adequate sleeping accommodation. Such guidance should not exclude the possibility that a room which falls short of the recommended size will nonetheless be capable of being taken into account as sleeping accommodation if other circumstances mean that, viewed as a whole, the house is reasonably suitable for the stated number. Guidance on how space with restricted head height, such as beneath a sloping ceiling, ought to be treated is also appropriate, but again subject to the possibility of exceptions."
The Deputy President suggested that there was some risk of confusion over the significance of the prescribed standards referred to in section 65 of the Housing Act 2004, compliance with which was necessary in all cases, and the “minimum standards” referred to in the LACORS guidance and in the council’s own guidance document. The guidance adopted by Manchester City Council was not a substitute for consideration of whether a specific house was reasonably suitable for a particular number of occupiers.
"Where the council’s own 'standard' is set by reference to the minimum space standards prescribed by section 326 of the [Housing Act 1985], and explained on that basis (as in the decision letter in this case), there is a risk that it will be seen as a statutory minimum with the same force as the prescribed standards under section 65 of the 2004 Act," the judge warned.
"There is nothing objectionable in the use of the 6.5m2 derived from the 1985 Act as guidance but for the purpose of HMO licensing it has no statutory force in its own right. The introductory note to the council’s guidance document offers the possibility of a flexible approach only where 'the solution is within the legislative framework'. The council’s decision letter suggests to me that the minimum space standard is regarded by its officers as part of the 'legislative framework' from which they are not free to depart in any circumstances. Such an approach is based on a misunderstanding."
In relation to the weight the First-Tier Tribunal should give to the council's guidance, Deputy President Rodger said that in every case the views of the local housing authority would be relevant and merit respect.
However, he added, once the tribunal had carried out its own inspection and considered all of the characteristics of the property, including the size and layout of individual rooms and any compensating amenities, it would be in a position to make its own assessment of the suitability of the house for the proposed number of occupiers.
Clark’s appeal was though allowed on an alternative ground that he had been entitled to expect that the First Tier Tribunal would make up its own mind on the suitability of his room rather than simply review the council’s standard.
“The First Tier Tribunal considered whether the council had been entitled to reach the conclusion which it did reach, which is a different exercise from making up its own mind on whether the property was reasonably suitable for occupation by six people,” the judgment said.
“For that reason I will allow the appeal on [this] issue.”