Portsmouth City Council v Elizabeth Collins

Introduction

1. This is an appeal by Portsmouth City Council, in its role as a local housing authority, against the decision of the First-tier Tribunal to allow an appeal against a condition imposed by the appellant in the HMO licence for her property. The appeal to the FTT was brought by Ms Elizabeth Collins, the owner of the property. I refer to the parties to the appeal by name to avoid confusion, since Ms Collins was the appellant before the FTT and is the respondent to this appeal.

2. The appeal has been decided under the Tribunal’s written representations procedure; written representations for the City Council were provided by Mr Andrew Lane of counsel, and for the respondent by Mr Simon Fletcher of the Portsmouth and District Private Landlords’ Association, and I am grateful to them both. The factual and legal background

3. Ms Collins bought 87 Binsteed Road, Portsmouth, in December 2000. It is a two-storey mid-terrace house; on the upper floor are two bedrooms, a bathroom and a little boxroom, and downstairs are two more bedrooms, a lounge/dining-room, a WC, and a kitchen. The four bedrooms are let to individuals on assured shorthold tenancies; they share bathroom, living and kitchen facilities, so that the house is a house in multiple occupation (“HMO”) as defined in the Housing Act 2004 .

4. These proceedings are about room sizes; the FTT recorded that the following dimensions were agreed, although there may be some dispute about the size of the kitchen: Bedroom 1: 10.10 m 2 Bedroom 2: 9.76 m 2 Bedroom 3: 13.34 m 2 Bedroom 4:` 9.81 m 2 Lounge/Diner: 7.25 m 2 Kitchen: 4.86 m 2 Box room: 3.76 m 2

5. Some but not all HMOs have to be licensed by the local housing authority. All HMOs with five or more occupiers are required by the Houses in Multiple Occupation (Prescribed Description) (England) Order 2018. Section 56 of the Housing Act 2004 enables the local housing authority to designate their district, or part of it, as subject to additional licensing requirements. On 22 November 2022 Portsmouth City Council designated the whole of its area for additional licensing, requiring all HMOs to be licensed, which meant that for the first time 87 Binsteed Road had to be licensed.

6. Section 64 of the 2004 Act provides that the on an application for a licence the local housing authority may grant one if it is satisfied (among other matters) that the house is reasonably suitable for occupation by not more than the number of persons specified in the application, or another number decided by the authority, or that it can be made so by the imposition of conditions. Section 67 provides that an HMO licence must include the conditions set out in Schedule 4 to the 2004 Act and may include “such conditions as the local housing authority consider appropriate for regulating … the management, use and occupation of the house concerned.”

7. Section 65 says this: “(1) The local housing authority cannot be satisfied … that the house is reasonably suitable for occupation by a particular maximum number of households or persons if they consider that it fails to meet prescribed standards for occupation by that number of households or persons. (2) But the authority may decide that the house is not reasonably suitable for occupation by a particular maximum number of households or persons even if it does meet prescribed standards for occupation by that number of households or persons.”

8. The prescribed standards referred to are to be found in Schedule 3 of the Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006. They include minimum sizes for bedrooms, depending upon the number of occupiers (6.51 m 2 f or a bedroom occupied by one person over 10 years of age), but not for other rooms. They state: “… there must be a kitchen, suitably located in relation to the living accommodation and of such layout and size and equipped with such facilities so as to enable those sharing facilities to prepare and cook food.”

9. The effect of section 65(2) is that fact that a property meets the prescribed standards does not mean that the authority is obliged to regard the property as suitable for the number of persons in question.

10. Portsmouth City Council has published Private Sector Housing Space and Amenity Standards for HMOs; it provides guidance rather than setting rigid requirements, and it states on page 9: “Council Officers will assess each property individually but the following acts as a guide for the minimum space requirements expected.” It is well-established that it is acceptable for local housing authorities to provide such guidance: Clark v Manchester City Council [2015] UKUT 129 (LC) . The Portsmouth guidance provides the following relevant guidelines: • For four sharers a kitchen of 6.5 m 2 is expected • For three sharers, a kitchen of 6 m 2 • If all four bedrooms are 10 m 2 or more then the lounge/dining room should be 11 m 2 or more • Since two of the bedrooms are less than 10 m 2 and there are four sharers, a lounge/dining room should be 14.5 m 2 • For three sharers with two bedrooms over 10 m 2 the lounge/dining room should be 12 m 2 ; if three bedrooms were over 10 m 2 the guidelines indicate a lounge/dining room of 11 m 2

11. Ms Collins’ licence, granted on 2 April 2024, permits her to operate 87 Binsteed Road as a house in multiple occupation “for occupation by no more than 4 persons”. The licence is subject to the mandatory conditions required by the 2004 Act and specific conditions imposed by the City Council, including the following: “Take reasonable steps to reduce the occupancy of the property from (4) to (3) occupiers. To utilise the newly vacant room to create additional communal space that complies with the guidance in Portsmouth City Council’s Space and Amenities standards.”

12. It was against that condition that Ms Collins appealed to the FTT, pursuant to the right of appeal granted by section 71 and paragraph 35 of Schedule 5 to the 2004 Act . An appeal to the FTT is by way of re-hearing, so the FTT makes its own decision rather than reviewing that of the local housing authority. As the Tribunal (the Deputy President, Martin Rodger KC) put it at paragraph 53 of Clark v Manchester City Council [2015] UKUT 129 (LC) : “In every case the views of the local housing authority will be relevant and merit respect, but once the tribunal has carried out its own inspection and considered all of the characteristics of the Property, including the size and layout of individual rooms and any compensating amenities, it will be in a position to make its own assessment of the suitability of the house for the proposed number of occupiers.” The evidence before the FTT, and its decision The evidence before the FTT

13. Ms Collins’ case before the FTT was that the house was suitable for four sharers. She argued that the first-floor boxroom makes up for the smaller living room, and that the bedrooms are on average at least 10 m 2 each. She also produced letters from the occupants confirming that they were happy with their living arrangements.

14. In its statement of case in the FTT the City Council explained the effect of the legislation, the prescribed standards and its own guidance. It explained that the room sizes specified in the guidance are based on those in the Metric Handbook Planning and Design Data , a standard used by developers and architects. and commented: “16. The standards also confirm that the assessment of suitability is not determined by floor area alone. It is important that the floor area is usable as well. Where significant parts of the floor area are either set for other purposes, such as a walkway between rooms, or in a difficult to access area, such as the eaves of a loft, they may be excluded in the assessment. …

18. It is recognised that if bedrooms are of an adequate size, then some activities can be accommodated within the bedrooms themselves. However, it is worth noting that this does not exclude the need for a communal area that can be shared by all occupiers and their visitors.”

15. The statement of case went on to describe the property and the dimensions of the rooms. It observed that much of the lounge/dining room is not usable space because it is also a walkway through to the kitchen (and provided a plan which indicates that one has to walk around two sides of the lounge/dining room to get to the kitchen, round the table, because the doors are diagonally opposite each other). It pointed out that the kitchen, at 4.86 m 2 , is well below the space expected for four sharers in its guidance, and said that it also falls below the prescribed standards because it is not of a suitable layout and size to enable the residents to cook. It observed that while some HMO residents may choose to eat together as a family would, in other cases the residents will cook separately, as was the case in this property. Insufficient space in the kitchen leads to tension between occupiers and also to the risk of burns and scalds and to contamination of food.

16. As to the lounge/dining room the Council acknowledged that two of the four bedrooms are very nearly 10 m 2 , so that whilst its guidance expected a living/dining area of 14.5 m 2 it would be prepared to accept 11 m 2 ; however, the area provided, at only 7.25 m 2 , fell far below that even before one took into account the fact that one has to walk round it to get to the kitchen. The Council added that the boxroom did not provide communal space to make up for the small dining room. It said that the likely effect of the lack of space was that residents would choose to eat in their rooms, with associated hygiene issues, and that their ability to have guests would be restricted.

17. The City Council also provided a witness statement by Rebecca Firman, its Housing Regulations Licensing Team Leader. She had visited the property after Ms Collins applied for a licence. She said: “6. During this inspection I felt that there was very limited space in the communal living/dining room. Due to the space provided, I had to sit on the windowsill in the living room whilst Millie HUNTER and Elizabeth COLLINS sat on the two-seater sofa.

7. When I inspected the kitchen, I did not feel that it could safely accommodate two people cooking who did not know each other. It would be impossible to avoid physical contact with a second person, if both were using the kitchen, due to the limited space.

8. I felt that any reasonable person would feel incredibly uncomfortable having to share such limited space with three strangers that they did not know. It is likely that they would feel anxious and would not be able to use the kitchen with a second person there. In addition, they would certainly struggle to accommodate guests.” The FTT’s decision

18. The FTT visited the property and conducted a hearing. It concluded that the property was suitable for four occupiers, and revoked the condition requiring Ms Collins to use reasonable endeavours to reduce the number of occupants to three.

19. In its reasons the FTT described the rooms and set out their sizes. It confirmed that it had regard to, and gave weight to, the views of the occupiers. Of the kitchen it said: “48. The space standard provides that for a property with 4 occupiers with bedrooms of 10m2 in size or more the kitchen size should be 6.5m2 [42]. On the specific facts and layout as found in the inspection the kitchen is functional for the number of shares using it. The kitchen worktops were clear and there were sufficient storage cupboards.”

20. It went on to say (the emphasis is the FTT’s own): “55. Whilst not all areas are of equal value and their location and nature are not of equal importance, in summary the bedrooms are 3m2 cumulative in excess of the 10m2 per occupant threshold, the box room another 3.76 m2 giving a total of 6.76 m2 , contrasted with combined shortfall being 5.29 m2, the kitchen being around 1.54 m2 below standard and the living room being around 3.75m2 below standard. The combination being 5.29m2.

56. The kitchen at the time of the inspection appeared clean, tidy and orderly, with sufficient storage space for the number of occupiers in the licensed premises. The kitchen’s utility value being enhanced by the proximity of the living room.

57. The living room is not spacious, but a layout of furniture as proposed by the Applicant could reasonably be envisaged to provide dining facilities for the occupants. The utility of the living room being enhanced by the proximity to the kitchen and the downstairs WC..

58. The combined area in excess of the 10m2 for a bedroom, some 3m2 will alleviate pressure of storage, likewise that of the 3.75m2 in the box room. The Council in their inspection noted the box room being used for drying clothes which is a facility which if used there does not need to take up space in the kitchen or living room.

60. This tribunal finds on the facts of this case that the Property is capable of reasonably satisfying the space standards, and the condition restricting the use of the property to 3 occupants is not reasonable and the condition should be revoked.”

21. The dining room layout referred to was Ms Collins’ suggestion that she provide a smaller table and bench arrangement. The appeal The arguments for the appellant

22. The City Council appeals with permission from the Tribunal. It argues that the FTT’s decision was irrational and wrong in law. It gave no sufficient consideration to the walk-through nature of the lounge/dining room; it improperly counted non-communal space, such as bedroom 3 and the boxroom, when looking at communal space; it disregarded the City Council’s room size guidance even though the lounge was 51% smaller than required and 34% smaller than the 11 m 2 the Council would have accepted on a generous view of the bedroom sizes, while the kitchen was 25% below the space standards and deficient in its layout; it counted the boxroom in a second time when looking at bedroom sizes.

23. Furthermore, the Council argued, the FTT had not responded to the Council’s concerns about the inability of the kitchen to accommodate more than one person at a time, nor to its points about safety and hygiene. None of those points was met in Ms Collins’ proposal for a smaller table in the dining area.

24. The City Council referred to the Court of Appeal’s decision in Waltham Forest London Borough Council v Hussain [2023] EWCA Civ 405 where Andrews LJ said at paragraph 80: “True it is that the FTT is not asking itself whether the decision of the authority was within the range of decisions reasonably open to it, as it would do on a judicial review. It is deciding whether the authority made the wrong decision. But in doing so, the FTT must pay careful attention to the reasons why the authority reached the decision that it did, and explain why it disagrees with them. Since Parliament intended such decisions to be taken by the authority, the FTT must afford the decision the weight and respect that must be afforded to any decision involving a value judgment made by the decision maker which was also the finder of primary fact.” The arguments for the respondent

25. The respondent’s first argument was that since the licence was for the operation of an HMO with no more than four occupiers, the condition imposed should have facilitated its occupation by four occupiers rather than requiring the number to be reduced to three. She referred to Nottingham City Council v Parr [2018] UKSC 51 , but that case was not about numbers of occupiers and cannot assist her. I appreciate that the condition was perhaps unusual, but while the licence allows Ms Collins to operate the HMO for no more than four occupiers there is nothing contradictory in the licence also requiring her to do her best to reduce that number within a specified period; by framing the requirement in that way the City Council ensured that Ms Collins was not in immediate breach of her licence. I see nothing unlawful about the condition.

26. It was also argued for the respondent that the Council should instead have taken enforcement action through Part 1 of the Housing Act 2004 . I do not understand why she would have preferred such action, and the risk of criminal liability for failing to comply with an Improvement Notice or a Prohibition Order. The point is in any event irrelevant to the appeal.

27. As to the FTT’s reasons for its decision, the respondent argued that they were sufficient, and that the FTT paid proper attention to the Council’s space standards. She pointed out the FTT members’ expertise as surveyors and relied on the Deputy President’s observation at paragraph 53 of Clark v Manchester City Council (above, paragraph 12). She characterised the Council’s approach as a “mathematical calculation”, and preferred the FTT’s approach of looking at the total space. She referred to the occupiers’ expressions of contentment with their living arrangements, to which she said the FTT rightly gave weight.

28. In my judgment it is obvious from the condition imposed by the City Council that it was not using its guidelines as rules. It was prepared to take a generous view of bedroom sizes; and it was prepared to allow three occupiers even though neither the kitchen nor the lounge/diner satisfies the guidelines for three occupants, and would not do so even if there were three bedrooms of more than 10 m 2 . Discussion and conclusion

29. For the reasons given I do not accept the respondent’s arguments.

30. There are a number of difficulties with the FTT’s decision. The first is that whilst the FTT had to make its own decision, it is well-established that where a local authority has a relevant policy the FTT is not bound by that policy and may disagree with it but if it does it must explain why. Nowhere in its decision did the FTT say why it was satisfied that the City Council’s space standards were so irrelevant or misconceived that rooms falling well below the expectations in those standards were nevertheless satisfactory. Waltham Forest London Borough Council v Hussain [2023] EWCA Civ 405 makes that clear, and the FTT’s failure to explain why it was departing so far from the City Council’s guidance is an error of law. Paragraph 48 of the FTT’s decision, above at paragraph 19, simply disagrees with the guidance, without explanation; clear worktops and sufficient storage are not an answer to the size of the room.

31. Second, the FTT has failed to respond to evidence. The FTT heard evidence that only one person could work in the kitchem, and did not say why that was either incorrect or was not a problem. Nor did it explain why it was unconcerned about the safety and hygiene issues to which Ms Firman made reference. In failing to deal with those points the FTT failed to take into account relevant considerations.

32. Furthermore I find the FTT’s approach to space very puzzling. It is hard to see why the cumulative size of the bedrooms is relevant, when each resident has the use of only one. And as the Council argued, the counting of the boxroom along with the bedrooms in paragraph 55, and as compensation for the size of the kitchen and dining room in paragraph 58, is difficult to make sense of.

33. As to the views of the occupiers, they are irrelevant to whether the property is objectively reasonably suitable for occupation by four residents.

34. In summary I agree with the City Council that the FTT failed to give proper weight to the City Council’s Private Sector Housing Space and Amenity Standards for HMOs, failed to take into account relevant considerations, and took into account irrelevant considerations. The FTT’s decision is set aside.

35. The Tribunal has not had the benefit of seeing the property and cannot substitute its own decision in Ms Collins’ appeal from the condition. The matter is remitted to the FTT for consideration by a different panel. Judge Elizabeth Cooke 21 November 2025 Right of appeal Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.