The Upper Tribunal found that a First-tier Tribunal had erred by revoking a declaration that a property was a house of multiple occupation solely on the basis of what it saw during an inspection of the property. The tribunal should have confirmed or reserved the council’s decision to serve the declaration, no only on the basis of its own inspection, but also on the evidence that had been available to the local authority at the time the declaration was served.
The property was a 1960s semi-detached house. In October 2014 the local authority (LA) made a declaration that the Respondent’s (R) property was a house in multiple occupation (HMO) on the basis of evidence from two police officers and two environmental health officers that there were at least 3 bedrooms, each with a separate lock, which were occupied by three men.
R appealed to the First-tier Tribunal (FTT), which was determined on the papers following an inspection of the property by the FTT on 16 February 2015. The FTT recorded that during its inspection it found that the property was in very poor decorative order with waste and debris in the front and back garden and most of the rooms, only had one single bed, and no evidence anyone was resident. The FTT concluded in its decision that “there was no evidence of occupation by more than two persons at the date of the … inspection … and accordingly the Tribunal revokes the HMO”.
LA sought permission to appeal from the FTT on the grounds it had erred in law in basing its decision on what it saw on the date of the inspection rather than considering the evidence on the date of the decision to serve the HMO. Permission was granted by the Upper Tribunal.
The LA submitted that the FTT have fallen into error for the following three reasons:
- should have determined matters at the date of the declaration and not simply on the basis of its inspection at a time when the house had been cleared;
- did not appear to have taken into account the fact that the test for an HMO, as set out in s.255 of the Housing Act 2004, was of “significant use” rather than of “sole use”; and
- made no reference to the presumption of significant use contained in s.260 of the 2004 Act.
Decision on appeal
The appeal was allowed, because:
- The FTT’s role is to deal with the appeal against an HMO declaration by way of a rehearing. It must look at the evidence and at the local authority’s decision, but it can also take account of new evidence of which the local authority was unaware under s.255(1)(b). The FTT can then confirm or revers the decision, and if it reverses the decision, then it can revoke the HMO. In the instant case, the FTT “did not follow the path laid for it in s.255(11)”; it erred by revoking the HMO without first confirming or reversing the local authority's decision. More fundamentally, it made a decision solely on the basis of the physical state of the property in February 2015, rather than taking into account all the evidence available to LA in addition to its own later inspection. Such an approach risked undermining the protection Parliament intended to create, by making it too easy for a landlord to clear the house out, and may also increase the incidence of hasty or even unlawful evictions.
- The FTT did not appear to take into account the requirement that the test for an HMO is “significant use” not sole use. The fact that it made its decision on the basis of a "spot check" inspection indicated that it did not have in mind the fact that the HMO declaration would be valid if the significant use test was met, even if the house stood empty 1 or 2 days in the year.
- Had the FTT had the significant use test in mind, it might also have been aware of the s.260 presumption: the starting point of the appeal had to be that the significant use test was met, unless the contrary was shown. In this case, the contrary was not shown by the fact that on one particular occasion the house was unoccupied. The FTT had not mentioned the presumption in their decision.
The Upper Tribunal was asked to re-determine the original appeal against the HMO rather than remit it to the FTT for a fresh decision. The decision to serve the HMO on 14.10.14 was confirmed:
- R did not dispute that the property was an HMO before it was inspected in February 2015.
- In any event, however, the ‘standard test’ under s.254(2) as modified by s.255 and the ‘significant use’ condition, were met and LA’s decision to make the declaration was correct and founded on abundant evidence.
- The fact the property was empty at the time of the FTT’s inspection was not sufficient to displace the presumption that the “occupation of the living accommodation…by persons who did not form a single household constitutes a significant use of that accommodation”, either when the declaration was served or on the date of inspection. It may have been a temporary change.