Portsmouth City Council v Elizabeth Collins

On an appeal concerning an HMO licence, the First-tier Tribunal must make its own assessment of suitability but must engage with relevant local-authority guidance and explain any substantial departure from it. It must address material evidence and relevant considerations, including practical issues concerning the use, safety and hygiene of communal facilities. It must not rely on irrelevant considerations, such as occupiers’ subjective satisfaction, when deciding whether accommodation is objectively reasonably suitable. A failure to apply these principles is an error of law requiring the decision to be set aside.

Portsmouth City Council imposed a condition on the HMO licence for 87 Binsteed Road requiring Elizabeth Collins to take reasonable steps to reduce occupation from four to three persons and to use the vacant room for additional communal space. The First-tier Tribunal (Property Chamber), reference CHI/00MR/HML/2024/0003, allowed Ms Collins’s appeal and revoked the condition.

The Council appealed, arguing that the FTT had failed to engage with its published room-size guidance, relevant evidence about the kitchen and communal areas, and the objective question of suitability. The central issues were the extent to which the FTT had to respect the authority’s guidance and reasons, and whether its assessment had taken account of relevant considerations while excluding irrelevant ones.

1. Appeal allowed and decision set aside. The FTT’s decision was affected by errors of law. The matter was remitted to the FTT for consideration by a different panel.
2. An appeal against an HMO licensing decision is by way of rehearing. The FTT must reach its own decision and is not bound by the local housing authority’s policy or guidance. However, where the authority has relevant guidance, the FTT must give its reasons proper attention and explain why it disagrees with it, particularly where it departs substantially from the guidance. That requirement follows from Clark v Manchester City Council [2015] UKUT 129 (LC) and Waltham Forest London Borough Council v Hussain [2023] EWCA Civ 405.
3. The FTT did not explain why rooms falling well below the Council’s standards were nevertheless satisfactory. Its reference to clear worktops and sufficient storage did not answer the guidance concerning the size and layout of the kitchen.
4. The FTT also failed to address evidence that only one person could work safely in the kitchen, or the identified safety, hygiene and guest-accommodation concerns. Those were relevant considerations. By contrast, the occupiers’ contentment with their arrangements was irrelevant to whether the property was objectively reasonably suitable for four residents.
5. The FTT’s treatment of space was inadequately explained. It was unclear why the cumulative size of bedrooms, or the boxroom, could compensate for deficiencies in communal facilities when each resident had the use of only one bedroom and the boxroom was not necessarily communal space.
6. The condition was not unlawful merely because the licence permitted occupation by up to four persons while requiring reasonable steps to reduce the number to three. Nottingham City Council v Parr [2018] UKSC 51 did not assist because it concerned a different issue.
7. The Upper Tribunal could not substitute its own decision because it had not inspected the property. The appeal was therefore remitted.

• Upper Tribunal (Lands Chamber): appeal allowed; the First-tier Tribunal’s decision was set aside and the matter remitted to a differently constituted panel.
• First-tier Tribunal (Property Chamber), ref CHI/00MR/HML/2024/0003: allowed Ms Collins’s appeal against the licensing condition and revoked it.