Barker v Shokar [2024] UKUT 17 (LC), concerned an appeal against a Rent Repayment Order (RRO) made in the First Tier Tribunal (FTT) and the criteria for identifying a 'self-contained flat' as well as whether a building was a house in multiple occupation (HMO).
The FTT ordered the Landlord, Mr Barker to pay £3750 pursuant to a RRO following an action by Ms Shokar, a tenant of Mr Barker's between August 2020 to February 2022. The Order was made on the grounds that the building Mr Barker shared with his mother was a HMO on the basis that he let four of the bedrooms in it to individual occupiers, and thus was required to be licenced due to the number of occupants (five) sharing facilities at any one time. Part 2 of the Housing Act 2004 (HA) provides that certain houses in multiple occupation must be licenced. Section 72 of the Act provides that it is an offence to manage or be in control of a HMO that is required to be licenced but is not.
Mr Barker's appeal of the RRO was centred on two grounds.
Ground 1 - that the property he and his mother lived in was a 'self-contained flat'. The ground floor room they occupied was behind a locked door and contained the three basic amenities defined under section 254(8) HA namely sleeping, cooking and washing facilities; and
Ground 2 - the FTT did not give sufficient reasons for its calculations of the number of occupants occupying the building as their only or main residence. Mr Barker argued that many of the occupiers stayed for such a short period of time that the property they let could not be considered their only or main residence.
As a result, Mr Barker put forward that the property did not have five occupants sharing facilities and therefore the property was not required to be licenced.
The Upper Tribunal (UP) noted the FTT failed to give reasons why it had found that the room occupied by Mr Barker and his mother did not meet the criteria set under s.254(8), nor did the FTT address this statutory point at all. The UP found the ground floor room to be a 'self-contained flat' and therefore set aside the RRO.
The UP conceded that it was "strictly unnecessary to decide the second ground of appeal" but due to the point it raises about whether the rest of the property was a HMO, the Judge provided a decision on it.
One of the requirements of Section 254(2) HA within the "standard test" for whether a property is a HMO is that the occupants must use the property as their only or main residence (section 254(b)). Mr Barker put forward evidence that whilst there were four people living in the rented room for periods of time, some of them stayed for such a short period that it did not appear the property was their only or main residence. The burden was on Ms Shokar to prove, to the criminal standard, that the people whose occupancy she relied on in earlier evidence had used their rented room as their only or main residence. The UP stated that it was not open to the FTT to ignore the fact it was an issue between the parties. Ground 2 of the appeal succeeded and the decision that the property was an HMO would have been set aside had it not already been set aside on ground 1.
The appeal therefore succeeded on both grounds. The Tribunal substituted its own decision and Ms Shokar's application for a RRO was dismissed.
Whilst this decision is no doubt a welcome one for landlords, it is important to ensure landlords check whether their properties need to be licenced when let as a HMO, to avoid the risk of actions being brought against them as the financial penalty could be significant.
