The government has now published its response to its consultation on HMOs and residential property licensing. Alongside proposals to extend mandatory licensing, the government has announced that it will proceed with introducing a national minimum room size for bedrooms in licensed HMOs. The proposals, which were detailed in the government’s earlier response paper, will prohibit landlords from letting rooms in HMOs to a single adult where the usable floor space is less than 6.51sqm and 10.22sqm for a room occupied by two adults. It will be mandatory for a HMO licence to include a condition that states the maximum number of persons who may occupy each specific room in a property as sleeping accommodation.
Room size in HMOs is frequently a hotly disputed issue between local authorities and landlords and has resulted in a number of senior court decisions in recent years. This blog looks at some of the issues surrounding room size and the potential impact of a national minimum room size.
Currently there are no mandatory HMO conditions or prescribed standards relating to room size
The Housing Act 2004 provides for certain mandatory conditions that must be included in a HMO licence. For example, a licence must contain a condition requiring the licence holder to produce a gas safety certificate (if applicable) and ensure smoke alarms are installed. While there is a power for the Secretary of State to add further mandatory conditions, since the Housing Act 2004 was enacted there have been no mandatory conditions relating to room size. Local authorities regulate room size in HMOs by relying on their discretionary powers to impose licence conditions which restrict or prohibit the use or occupation of particular parts of the property.
The Housing Act 2004 does require the local authority to be satisfied that the house is reasonably suitable for occupation by not more than the maximum number of households or persons or that it can be made so suitable by the imposition of conditions. The local authority cannot be satisfied of this if the house fails to meet prescribed standards for occupation. Again, while a number of standards have been prescribed by regulations, there has never been a prescribed standard relating to bedroom size.
The government intends to change this by both prescribing a minimum room size standard and making it mandatory for licences to include a condition stipulating which rooms in the HMO are suitable for sleeping accommodation and the maximum number of persons who can sleep in each room.
Local Authority Standards – Clark v Manchester City Council
Because there are no statutory prescribed room size standards many local authorities have developed their own guidance setting out the local authority’s view on what size standards it considers acceptable in HMOs. This is to both assist local authority officers with their decision-making and to advise landlords. The problem with this is that local authorities frequently fall into the trap of treating their guidance as if it is a statutory prescribed standard and granting or refusing to grant licences on the basis of whether bedrooms meet their own standards rather than considering the suitability of the property as a whole.
This issue was highlighted in the key Upper Tribunal case of Clark v Manchester City Council  UKUT 129 (LC). In that case the Upper Tribunal concluded that the Council’s adoption of mandatory minimum size standards for bedrooms in HMOs was unlawful. While local authorities were perfectly entitled to produce guidance on room size and while their views should be given weight by the tribunal, local authorities were not able to apply their standards as if they had statutory force. Ultimately the question is whether the property as a whole is reasonably suitable for occupation by a particular number of people. Clark made it clear that it is not permissible for local authorities to automatically prohibit the use of certain bedrooms simply because they fall below the standards set out in their own guidance.
Is the type of occupant relevant to room size?
The type of occupant has also been shown to be relevant in room size cases. This was illustrated in the case of Nottingham City Council v Dominic Parr and Trevor Parr Associates Ltd  EWCA Civ 188 which was heard last year in the Court of Appeal. The Council’s guidance suggested that 8sqm was an acceptable bedroom size and the licences issued prohibited the use of two attic rooms until the usable floor space had been increased. The First-Tier Tribunal had deleted the condition and imposed an alternative condition that the rooms could be used by full-time student who resided in the room for a maximum of 10 months of the year. This was upheld by the Upper Tribunal and the Court of Appeal concluded that there was nothing unlawful about a HMO licence restricting occupation of a bedroom to students only. The Supreme Court has granted permission to Nottingham City Council to appeal the decision.
How will the introduction of a minimum room size standard change things?
First, it will mean that landlords will have to stop letting rooms that fall below the nationally prescribed standard. If they do not then they will be in breach of licence condition and could be prosecuted by the local authority or alternatively receive a civil penalty under the new Housing and Planning Act 2016 provisions. Rooms below the prescribed standard that have previously been found suitable for occupation will no longer be capable of being let separately as sleeping accommodation by any person aged over 10. It is important to note that the new mandatory condition will not affect existing licences but will only apply to licences granted on or after the commencement of the new regulations. This includes renewals of existing licences. Even then there will be transitional arrangements to allow landlords affected by the new rules time to reduce the number of persons in occupation.
Second, local authorities will continue to be entitled, and are encouraged, to produce their own standards complete with figures which set out what size the local authority considers acceptable for sleeping accommodation. This can be higher than the national minimum. For example, in the case of Parr discussed above Nottingham City Council were of the view that 8sqm is an appropriate room size. As the government made clear in its response paper ‘the minimum room size is simply a standard below which a room cannot be used as sleeping accommodation. It is not intended to be the norm or the lowest common denominator.’ However, what local authorities are not able to do is apply their standards as if they have statutory force and automatically prohibit the use of rooms that fall below their own standards. To that extent, the decision of Clark will continue to be relevant in room size disputes.
Third, it will not mean that rooms that meet the new minimum size will automatically be deemed suitable for occupation. In fact, if applied correctly, the introduction of a national minimum room size should have limited impact on rooms that meet the national standard. As is the case now, the question of how many persons or households can occupy a HMO is not dependent on calculating the floor space of each bedroom in isolation. It comes down to whether a specific property, taken as a whole, is reasonably suitable for a certain maximum number of persons or households. The only difference now is that rooms below the national minimum room size will automatically be ruled out as being suitable for sleeping in. However, these rooms can still be taken into account when assessing the property as a whole. They could, for example, provide useful storage space for the occupants of a property freeing up floor space in the bedrooms.
The regulations still need to be approved by both Houses of Parliament but it seems likely that the new standard will come into force sometime later this year. While the introduction of a national minimum room size will bring some clarity to the HMO room size debate, questions surrounding suitability and how local authorities apply their own standards will not disappear. We are likely to see new challenges in the tribunals and senior courts as room size continues to be contested by landlords and local authorities.