A recent decision of the Upper Tribunal will be of great significance to those applying for HMO licences and the great majority of local authorities.
In Clark v Manchester City Council  UKUT 0129 (LC), David Smith of Anthomy Gold Solicitors acted for the Appellant. He was appealing a decision of the First Tier Tribunal whcih had upheld a refusal by Manchester to amend his HMO licence to allow 6 occupiers rather than 5. Manchester had relied on its local room size 'standards'.
The FTT, rather than conductung a rehearing and considering the property for itself considered the room size standards adopted by Manchester and whether they were reasonable. The FTT found that the standards were reasonable and therefore immediately drew the same conclusion as Manchester, declining to amend the licence.
The UT disagreed with the manner in which the FTT had conducted its hearing. It is required to take into account the views of the relevant local authority but as a specialist tribunal it is not bound by those views and is equipped and permitted to form its own independent views on matters within its competence.
Although the appeal was allowed on this first point the UT considered a second matter which is ultimately of greater importance. This was the actual room size standards applied by Manchester and which the FTT had themselves adopted.
Manchester argued that it was permitted to set local standards and had been encouraged to do so by previous guidance issued by LACORS. The UT did not agree. The UT was clear that there were certain statutory standards set in regulations, which do not include room size, which central government has set out and to which any local authority must have regard. Indeed a local authority cannot find a property suitable for licensing by a specified number of people if the statutory standards are not met.
However, local authorities cannot then set a lcoal standard which they apply with the same force. To do so would be for a local authority to take powers to itself which Parliament has not given it. Therefore any local authority 'standard' cannot be used as a substitute for that authority considering whether a specific property is suitable for use by a set number of occupiers. Therefore local stabndards cannot be anything more than guidance as to what the local authority is likely to consider reasonable but they must still consider the property itself.
The error Manchester's officers had fallen into was to treat their own guidance as a standard to which even they were bound. As the UT put it:
The Council's decision letter suggests to me that the minimum space standard is regarded by its officers as part of the "legislaive framework" from which they are not free to depart in any circumstances. Such an approach is based on a misunderstanding.
What this means is that Council's can and should have guidance as to what sort of room size they might deem to be acceptable. That guidance will apply in the vast majority of situations and can be treated as relatively firm by local authorities. However, local authorities must consider every property on its merits and cannot simply state that a room is not suitable based on size.
This will affect a lot of local authorities. Many of them set fairly rigid standards and erequire their officers to follow them. This will no longer be possible. Undoubtedly this will require training of officers and a rethink as to methods of supervision. HMO landlords will no doubt be pleased. However, they need to take care that they don't misinterpret this. This decision still allows for guidance to be issued by local authorities and for them to adhere to it relatively tightly provided that it is reasonable. This is not a decision that allows for an 'anything goes' approach to HMOs.