Enforcement against HMOs used to house asylum seekers

A Divisional Court recently upheld a district judge’s decision in a case over licensing of houses in multiple occupation (HMO) used for asylum seekers. The decision is of significant public importance concerning the enforcement of housing standards in HMOs, write Stephanie Harrison KC and Tim Baldwin.

In Clearsprings Ready Homes Limited, R (on the application of) v Swindon Magistrates’ Court [2024] EWHC 2023 (Admin), Clearsprings Ready Homes Limited (“Clearsprings”) applied for judicial review of a district judge’s refusal of its application to dismiss charges brought by Swindon Borough Council (“Swindon BC”) in respect of its operation of Houses of Multiple Occupation (“HMO”) which accommodated asylum seekers under a contract with the Home Office.

The accommodation in this claim was commissioned for use under the Home Office contract, including the obtaining of HMO licences from Swindon BC. Swindon BC inspected the properties and discovered conditions were such that it concluded justified enforcement action. Swindon BC brought 39 charges against Clearsprings in connection with five HMOs; 27 of the charges alleged breach of the Management of Houses in Multiple Occupation (England) Regulations 2006. In the magistrates’ court, Clearsprings unsuccessfully applied to dismiss the charges on the basis that it was not a “manager” for the purposes of the Regulations.

In giving judgment in the judicial review claim in the Divisional Court, the court held that although a district judge’s basis for determining the outcome of Clearspring’s application to dismiss charges in respect of its operation of HMOs to provide accommodation for asylum seekers under a contract with the Home Office was erroneous, and her conclusions based on a reconstruction of s.263(3) Housing Act 2004 could not be sustained, the decision to reject the application was correct.

The divisional court considered the proper interpretation of the Management of Houses in Multiple Occupation (England) Regulations 2006 reg.2(c) (“Regulations”), and in particular its definition of “manager of the premises”, required to avoid the absurd outcome that such premises were not covered by the Regulations, with the court limiting criminal liability under the Regulations to circumstances where the Claimant or other person is a “person in control” under s 263(1) of the Housing Act 2004. The court concluded that the principles of purposive construction including from Inco Europe Ltd v First Choice [2000] 1 WLR 586 and the three necessary conditions for reading “in respect of” into s 263(3) of the Housing Act 2004.

However, the court considered the drafting of reg.2(c) gave rise to the absurd outcome that such premises were not covered by the Regulations and that the exclusion was inexplicable. It was clearly intended that the occupiers of such premises should have the protection afforded by the HMO regime. It defeated the clear purpose of the Regulations to afford protection to all occupiers of HMOs through the imposition of management duties on those responsible. Further that the power to make regulations, created by s.234, was sufficiently wide to impose liability for breach of any regulations on “persons managing” and “persons having control” and that the question was how the absurdity of the exclusion from liability under the 2006 Regulations might be cured.

The court considered the remedy was to read reg.2(c) as if it stated “the manager” means “the person managing or the person in control of the HMO” and the footnote as reading “For the meaning of ‘person managing’ see section 263(3) and ‘person in control’ see section 263(1) of the Act”. That would resolve the defect and achieve the intention identified by reg.1 that the Regulations should apply to all HMO premises and not simply those where there was payment of rent directly or indirectly to a manager.

Therefore, the court held that if the magistrates’ court was satisfied that Clearsprings were a “person having control” of the premises. it was capable of being liable for breaches of the Regulations and thus dismissed the application for judicial review and remitted the matter back to magistrates’ court for consideration.

Swindon BC have applied to the Divisional Court for permission to appeal and certification of the case as of wider public importance pursuant to s 2(1) Administration of Justice Act 1960 as to the enforcement of the Regulations and identification of “persons managing” an HMO when no rent is paid directly by the occupant, as the decision of the court effectively excludes a large estate of HMOs housing asylum seekers from effective regulation under Part 3 of the Housing Act 2004.

Furthermore in a separate judgment, Clearsprings were identified to have breached the embargo on draft judgment in the case by engaging in communication with the Home Office to secure a press release when the Home Office were not a party even though the Secretary of State for Housing and Local Government was an intervener in Clearsprings Ready Homes Limited, R (on the application of) v Swindon Magistrates’ Court No 2 [2024] EWHC 3245 (Admin).

Stephanie Harrison KC, leading Tim Baldwin, were instructed by Swindon Borough Council, the Interested Party and prosecution authority in this case.

Stephanie Harrison KC is a member of the Garden Court Chambers Public Law Team and Tim Baldwin is a member of the Garden Court Chambers Housing and Public Law teams. Tim was instructed in this case via Albion Chambers in Bristol.