James Barker v Chantelle Kiran Shokar

A unit is a self-contained flat for the standard HMO test where it satisfies the definition in section 254(8) of the Housing Act 2004. The tribunal must address that definition and make findings on the presence and exclusive use of the three basic amenities. Use of a shared kitchen as well does not prevent the unit being self-contained, and separate council-tax assessment is irrelevant.

Occupants of such a flat cannot be counted in deciding whether the remaining HMO meets the five-person licensing threshold. Where occupation as an only or main residence is disputed, the applicant must prove that requirement beyond reasonable doubt; it cannot simply be assumed without findings.

James Barker v Chantelle Kiran Shokar was an appeal from a rent repayment order made by the First-tier Tribunal (Property Chamber), reference LON/00AW/HMF/2022/0070. Ms Shokar had rented a room in Mr Barker's home, which also contained four let rooms and a basement flat.

The FTT held that the property was an unlicensed HMO for 40 weeks and ordered repayment of £3,750. Mr Barker contended that the ground-floor room occupied by him and his mother was a self-contained flat, so its two occupants could not count towards the licensing threshold. He also challenged the absence of findings that the short-term room occupiers used the premises as their only or main residence.

The central issues were whether the ground-floor room met the statutory definition of a self-contained flat and whether the FTT had adequately addressed residence as a condition of the standard HMO test.

1. Appeal allowed. The FTT's decision was set aside and re-made. Ms Shokar's application for a rent repayment order was dismissed.

2. The FTT failed to address the definition of a self-contained flat in section 254(8) of the Housing Act 2004, although that provision had been squarely raised. Its observations about the limited facilities, restricted sleeping area and type of lock did not explain why the statutory definition was not met.

3. On the unchallenged evidence and plan, the ground-floor room formed part of the building, lay below another part of it, and contained cooking, toilet and washing facilities for the exclusive use of its occupants. It was therefore a self-contained flat. The fact that its occupants might also use the shared kitchen, and the absence of a separate council-tax assessment, did not affect that conclusion.

4. Under section 254(2)(a), the occupants of that flat could not be included in the HMO whose licensing status was in issue. The remainder of the house never had more than four relevant occupants. It therefore did not require a licence under the five-person prescribed description, even if it otherwise was an HMO. Mr Barker committed no licensing offence.

5. Although unnecessary to the outcome, the Tribunal held that the second ground also succeeded. The applicant bore the criminal-standard burden of proving that the relevant occupiers used the accommodation as their only or main residence. That could sometimes be inferred, as in Opara v Olasemo [2020] UKUT 96 (LC), but it was disputed here in light of short stays and evidence suggesting another main residence. The FTT made no finding on the issue and wrongly ignored it.

• Upper Tribunal (Lands Chamber): allowed the appeal, set aside the First-tier Tribunal's rent repayment order and substituted a dismissal of the application.
• First-tier Tribunal (Property Chamber): reference LON/00AW/HMF/2022/0070; found that the property was an unlicensed HMO for 40 weeks and made a rent repayment order of £3,750.