Tribunal orders re-draft of conditions in council's HMO policy

Portsmouth City Council must rewrite parts of its licensing scheme for houses in multiple occupation (HMO), the Upper Tribunal (Lands Chamber) has said.

HHJ Johns KC heard the case brought by Simon and Iva Fletcher with the backing of a local landlords’ association.

He said the appeal concerned conditions included by Portsmouth in an HMO licence, which was granted to the Fletchers in 2024 with 36 conditions.

When the Fletchers brought the case to the First Tier Tribunal (FTT) it left all but a few disputed conditions intact.

The couple took six grounds of appeal to the Upper Chamber. In the first ground they argued a condition was contrary to the law as it involved altering existing tenancy terms and obliged tenants to agree those terms.

HHJ Johns said: “It is my judgment the FTT did go wrong in its task when dealing with [this] condition 18 and that the council was wrong in the different sense that I disagree with its decision.

“The appropriateness of a condition must be judged, it seems to me, in light of the justification offered for it. Here, the points said to justify condition 18 in the licence do not point to it being an appropriate condition.”

He varied the condition “so that it simply mirrors the mandatory condition in Schedule 4, as proposed by the Fletchers before the FTT…”

Ground 2 was a challenge to conditions which require documents to be given to the council on demand.

The judge said the FTT was in error in upholding these and Portsmouth was wrong to include them “to the extent that they went beyond the keeping of records and gave the right to demand their production outside of s.235 of the 2004 Act”.

A further ground complained that three conditions did not properly reflect mandatory safety conditions.

The skeleton argument before the FTT said: ”The condition as drafted replicates the landlord's obligations imprecisely” and that parts of the text were unclear.

HHJ Johns said: “Neither the reasoning of the FTT nor the council's skeleton argument on this appeal really engage with these significant criticisms. The oral submissions for the council also failed to answer them.”

He said they had “real force” and “I do not consider it is necessary or appropriate to use a condition in a licence merely to ensure a licence holder is aware of other obligations, such as to have an electrical certificate”.

Another ground dealt with the Fletchers' criticism of the council in applying the same conditions in all its licences.

HHJ Johns found that where the local housing authority has imposed conditions without reference to the particular circumstances of a house, it was likely that less weight would be accorded by the FTT and the tribunal to that decision.

“I do not ignore the practicality for a local housing authority of having standard conditions,”he said.

“But, in my judgment, the need to have regard to the house being licensed means they should represent a suite of conditions to choose from and modify as appropriate; not a one-size-fits-all regime.”

The final ground concerned failure properly to respect confidentiality with a condition designed to render the sharing of tenants' financial history by the Fletchers with the council lawful under the UK General Data Protection Regulation.

HHJ Johns said: “I do not consider that the council's points give sufficient justification for this condition.”

He varied the condition and added: “The mandatory condition for inclusion in…licences gives some support for requiring the taking of references. But it does not support that which is objected to in condition 20; namely, the requirement to supply copies of references to the council. As to the possibility of redaction, the condition gives no right to redact.”