Trinity Housing Barrister Summary of Barker v Shokar (Housing – Rent Repayment Order) [2024]

Trinity Social Housing Law barrister, Henry Percy-Raine has prepared the following summary of the recent case of Barker v Shokar (Housing – Rent Repayment Order) [2024] UKUT 17 (LC), an appeal from a rent repayment order made by the First Tier Tribunal (FTT). The issues on appeal related to the definition of ‘self-contained flat’ and the adequacy of the FTT’s reasons.

The facts

Mr Barker and his mother own and reside in a large London townhouse. It contains four rooms on the first floor which were rented out to individuals. It also has a self-contained flat in the basement. The flat has its own lockable door and lounge with a small bathroom and kitchen area. Ms Shokar rented a room from August 2020 to February 2022. She later applied for a rent repayment order on the grounds that the house was not licensed as an HMO but so required to be.

The FTT decided that the property was an HMO that required a licence on the basis of the number of occupants in it during the relevant period. The FTT did not accept that the ground room was a self-contained flat within the meaning of s.254(8) HA 2004 but formed the view from its own observations that the room was part of the whole building so its occupants would be included in the calculations.

As the house was found to be an HMO, the FTT must have also formed the view that the occupants were using the accommodation as their only or main residence within the meaning of s.254(2)(c) HA 2004 but this was not clearly set out in its reasoning. The FTT made a rent repayment order against Mr Barker.

Mr Barker appealed on two grounds:

• The Ground Floor Room was a self-contained flat and its occupants therefore do not count towards the number of occupants in determining whether a licence is needed, so even if the rest of the house is an HMO it did not require a licence because at no point during the relevant period were there more than four occupants in the rest of the house.
• The FTT did not give sufficient reasons for its calculation of the number of occupants occupying the building as their only or main residence.

The Appeal

The first ground of appeal was successful. The FTT’s decision did not refer to the statutory definition of a ‘self-contained flat’ nor any analysis of whether the definition was satisfied and if it was, why that did not matter. The decision had to be set aside as it failed to take into account a crucial matter namely the s.254(8) HA 2004 statutory definition.

The decision was substituted on appeal, the three basic facilities were present in the Ground Floor Room and accordingly, the definition in section 254(8) HA 2004 was satisfied. Whether or not the Ground Floor Room was separately assessed for council tax was irrelevant. Under s.254(2)(a) HA 2004, the occupants of the self-contained flat accordingly had to be excluded. A licence was not accordingly required for the house (even if it was an HMO).

The second ground of appeal, had it been necessary, was also successful. Section 254(b) HA 2004 requires that the occupants use the property as their only or main residence. In this case, Mr Barker’s evidence was that some occupants would stay for shorter periods and it did not appear this was their only or main residence. This was not a case where an obvious and unchallenged inference from the evidence could be drawn. The FTT made no findings on this issue. It was held that it was not open to the FTT to ignore the fact that it was an issue between the parties.

The appeal accordingly succeeded on both grounds, and the rent repayment order was dismissed.