Southwark council can no longer avoid HMO rules when housing families in shared accommodation

When Ms Titiloye, a Nigerian lady with two teenage children, became destitute her family was accommodated by the London Borough of Southwark in a single room in a four bedroom flat. The living room had been converted into a bedroom and so there were five separate households living in the property all sharing one kitchen, bathroom and toilet.

Southwark Council refused to recognise the property as being a House in Multiple Occupation (HMO) – to which the licensing and standards regime under the 2004 Housing Act (and Southwark’s ‘additional licencing scheme’) would apply. This regime sets minimum size standards for rooms, minimum kitchen and bathroom facilities for set numbers of households and minimum safety requirements.

The 2004 Act only applies to accommodation which is occupied as someone’s ‘only or main residence. Southwark Council argued that because the family was being accommodated on a temporary basis under a nightly letting, they were not occupying as their ‘only or main residence’.

On behalf of Ms Titiloye, Miles & Partners issued a claim for judicial review of Southwark’s refusal to recognise the property as an HMO, contending that occupation by destitute families with no recourse to public funds would almost inevitably be occupation as their only or main residence. Daniel Clark of Doughty Street Chambers was instructed as counsel for Ms Titiloye.

Two days before Southwark had to reply to the court, Ms Titiloye and her family were moved to self-contained accommodation. The council then suggested that the claim had become academic and should be withdrawn.

However, the evidence appeared to show a systemic problem which might be responsible for the poor living conditions of a significant number of families and young children. The response to a freedom of information request had shown that as at 4 September 2018:

• the London Borough of Southwark was accommodating 182 families under section 17 of The Children Act 1989;
• of those, 153 were in accommodation where they shared a toilet, bathroom and/or cooking facilities – the average time spent there was 20 months;
• of those, 63 were accommodated within Southwark – so that Southwark would be responsible for issues of HMO licensing; and
• of those, fewer than 10 were licensed as a house of multiple occupation.

On that basis, despite her own improved living conditions, Ms Titiloye intended to invite the court to proceed to consider the matter so that other families would not have to suffer as she had.

Southwark then agreed to settle the claim with our client. In doing so, the council agreed to recognise the property she had been housed in as an HMO. In the settlement agreement, which was endorsed by the court, the council accepted that:

“occupation of living accommodation by families accommodated under section 17 of the Children Act 1989 is capable of constituting occupation as their “residence” within the meaning of section 254(2)(c) of the Housing Act (“HA”) 2004, even if the accommodation is secured on a nightly-let basis… accordingly… where such families are accommodated in such accommodation, without an identified end date, on the basis that they have no other suitable accommodation available to them, they will generally be occupying it as their “only or main residence” within the meaning of section 254(2)(c)”

‘It is not known whether other local authorities have also been avoiding the application of the HMO licensing regime to accommodation used to accommodate families in the same way,’ says Lou Crisfield. ‘But this case sends an important message to all local authority social services teams that destitute families are entitled to the same minimum standards in their homes as other families.’

‘For at least 54 families accommodated in shared accommodation within Southwark, this settlement should lead to immediate recognition that the relevant properties constitute houses in multiple occupation and steps must be taken to ensure that they are registered as such and that landlords make improvements or reduce occupation levels to meet the minimum standards.’

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.