Local authority powers to deal with bad housing conditions in HMOs

A local authority is required to satisfy itself that a licensable HMO is free of category 1 (serious) hazards and whether action is required to address any category 2 (other) hazards under Part 1 of the Housing Act 2004 (the Housing Health and Safety Rating System).[1]

The authority has a duty to do this as soon as reasonably practicable and not later than five years after receipt of a licence application.

A local authority does not have to carry out an inspection of a HMO as part of the licensing procedure. However, in carrying out its licensing function the local authority may become aware of properties where inspection is necessary. This requirement applies to licence renewals, therefore there must be some form of regular check of all licensed HMOs every five years.

Hazards in properties not subject to licensing are assessed under the Housing Health and Safety Rating System.

Where enforcement is necessary, the Act makes clear that enforcement under Part 1 should be carried out separately from the licensing procedure (under Part 2).

Where the application for a licence is in order, the local authority should not delay the grant of a licence pending its consideration of its duties under Part 1. It is possible to attach conditions to the licence requiring works to be carried out, but the general position is that the local authority should instead use its Part 1 powers.[2]

In considering a prosecution for a breach of the management regulations, a local authority should also consider whether to take action under Part 1 Housing Act 2004.[3]

Enforcement under Part 1 is not available in respect of a HMO that is subject to management by a local authority (an Interim or Final Management Order) under Part 2 Housing Act 2004.[4]

It is an offence for a person managing or with control of a licensed house in multiple occupation (HMO) to knowingly permit it to be occupied by more households or persons that are permitted under the licence.[5]

If the number of occupiers exceeds the maximum permitted under the licence, it is a defence that the person charged is taking steps to try and reduce the number of occupiers.[6]

Where an HMO does not require a licence, and there is no Interim or Final Management Order in place, local authorities have powers to deal with overcrowded HMOs.

The local authority may serve an overcrowding notice on one or more of the relevant persons if it considers that an excessive number of persons are, or are likely to be, accommodated in the HMO.[7]

The local authority must give seven days' notice in writing before serving an overcrowding notice, informing every relevant person (those with an interest in the HMO, or having control of or managing it) of this intention. Every occupier of the HMO should also be informed and provided an opportunity for representations.

Appeals are made to the First-tier Tribunal Property Chamber.[8]

An overcrowding notice comes into effect 21 days after being served if no appeal is made.

The overcrowding notice must specify in relation to each room in the HMO: the maximum number of persons permitted to use the room as sleeping accommodation, or that the local authority considers the room unsuitable to be occupied as sleeping accommodation.[9]

The person on whom the notice is served must not allow:[10]

• a room to be occupied as sleeping accommodation otherwise than in accordance with the notice

• the property to be occupied as sleeping accommodation in such numbers so that persons of the opposite sex who are not living together as husband and wife have to sleep in the same room

This applies equally to new residents. Children under 10 years of age are to be disregarded.

Sanctions

A person who contravenes an overcrowding notice commits an offence and, if convicted is liable to a fine. There is a defence of reasonable excuse.

A local authority can also:

• (on or after 6 April 2017) impose a civil penalty of up to £30,000 as an alternative to prosecution[11]

• (on or after 6 April 2018) apply to a First-tier Tribunal for a banning order where the landlord (or agent) has been convicted[12]

Revoking or varying an overcrowding notice

The local authority may, at any time, on the application of a relevant person, revoke or vary the notice to allow more people to occupy the HMO.[13]

The applicant may appeal to the First-tier Tribunal (Property Chamber) if the local authority refuses the application or does not notify the applicant of their decision within 35 days of the decision.