HMO definition and City of Westminster

[SJF]

I own a long leashold one of 4 flats in a converted house in London. The house is 4 storeys high and as far as I am aware was converted post 1991. Each flat is one bedroomed, self contained and lived in by either an individual or a cohabiting couple.

In October 2005 I was copied in a notice of works served on the building freeholder requiring certain works because the building was an HMO according to the 1985 definition and in the opinion of the council failed to meet certain fire safety requirements which specifically relate to HMO's. The works had to be completed by Feb 2006 and the cost would be split between the 4 leaseholders.

I queried the notice with the council because it seemed to me the HMO definition as used by the council was redefined in the 2004 housing act, and the property would not be an HMO under the 2004 act. I did not not put in a formal appeal. I was told by the council that the 2004 definition did not come into force until April 2006 and the property was classed as an HMO under the 1985 act - the implication being that the property would not be an HMO under the 2004 Act unless it failed to meet the 1991 Building Regulations.

Roll on a year and the work has not been done. I have been told this was actually down to the council being slow to approve proposed work plans, but whatever the reason the fact is the work is still outstanding. The council have insisted to the property managers that the work is still done, but my view is that the original notice is no longer valid since the 1985 definition no longer applies, even if it did in October 2005 - which is itself debatable.

If the council insist the work is done then in my view it should be because they consider the property is still an HMO under the 2004 Act or because there are other legal requirements. Either way, I've asked the council to state which. I've also stated that I will seek to recover any expenses incurred from now on as a result of the October 2005 notice as I consider it no longer valid. I am awaiting a reply.


So my questions are - when did the 2004 HMO definition come into force? Was it with the 2004 Act or was it in April 2006, and does anyone know of any legal cases which prove it either way ? Also, am I being unreasonable by seeking clarification from the council ?

I should state that I have no objection to actually paying for the fire protection works, but I do object to doing so under a law which as far as I can see no longer applies. I am also concerned with potential future issues around the HMO classification.

Comments appreciated.

[red40]

Firstly SJF I would deem it reasonable to ask for clarification on the HMO definitions.

I have copied a link below to a document that will most probably answer your questions in your post. I think the relevant parts are the first two paragraphs on page 5/7.

http://www.communities.gov.uk/pub/317/HousingAct2004ImplementationLettertoLocalHousingAu thorities_id1165317.pdf

You may also find page 3/7 'Transititional Arrangements' helpful,,particularly paragraph 3 of the transtitional arrangement.

You are also right that as long as there is documented proof of the building complying with the buildings regs post 1991 then under the definition of the 2004 Act it wouldn't be classed as a HMO. However I must point out that even with Building Regs approval, it doesn't stop a local authority taking action to have fire precautions installed, as they would do this under the Housing Health and Safety Rating System (HHSRS) which can be applied to any dwelling.

[SJF]

Many thanks for that. Much appreciated.

[Widdy1]

Hi SJF,

I work for a council operating the HHSRS (carried out over 1000 inspections under it) and Decent Homes Standards which were enshrined in law in 2004 under the Housing Act 2004 and came into force on 1st April 2006. According to most peoples interpretations of the new laws, an HMO is any property that houses 3 or more unrelated people who share facilities and for which comes under mandatory licensing. Depending on use and configurations of HMO's and their location and status, certain HMO's may come under selective licensing. From next month, the law should be clearer on the HMO interpretation as it will be added to so that a clearer definition is available.

During my everyday dealings with landlords we stipulate hard wired independant and interlinked smoke and heat detectors in each flat or bedsit with suitable head units for the intended purpose such as heat detectors in the kitchen and bathroom were electric shower is fitted and smoke detectors everywhere else. On top of this, an L2 system is to be installed in the common parts with a detector in each flat just behind the door or in the lobby that exits onto the common parts. Break glass call points to be fitted near to the door and any escape route such as a window etc. This can be enforced by your local fire brigade who will proscecute should it not be kept in working and maitained order or if a fault is found with it after a fire. They currently work under new legislation called the Regulatory Reform Order 2006 or commonly known as the RRO.

Should anyone have a fire in one of your flats, it should set off the internal system so that the tenant can deal with it. Should they not deal or control with it the L2 system sensor near the door will trigger and give an alarm to all other occupants. Installing this way resolves almost all false alarms etc.

I don't think its unreasonable to ask for clarification as most councils are currently in limbo in certain circumstances as some problems fall in between legislation and in theory can't be enforced, not least until next month when things are expected to be cleared up.

I don't believe RED40 to be completely correct on the fire precautions and the HHSRS. We can insist on hard wired independant and interlinked system especially when the tenants are particularly vulnerable but we can't currently enforce it because it actually doesn't fail on the HHSRS and score a Category 1 hazard as such. Councils can legally enforce solutions to Cat 1 hazards. The L2 system is a different matter though as any building containing 2 or more households has to have a system fitted to the bare minimum in the common parts. As far as I see, and I'm a landlord myself, I put in what I've said above and if there's a fire from a fault or an idiot setting fire to themself, then I've nothing on my conscience should someone unfortunately die that will make me think or the fire brigade for that matter, that I didn't provide the best facilities to give an early warning and allow all to escape.

Hope this helps.

[Bel]

widy1:

What do you think of fire departments and Councils who will not come when invited to an HMO to help specify what needs to be done regarding fire regs?

[red40]

Hi SJF,
According to most peoples interpretations of the new laws, an HMO is any property that houses 3 or more unrelated people who share facilities and for which comes under mandatory licensing.

Do you mean most peoples interpretations or your councils?

Just so all the landlords who look on this website know exactly what is a mandatory licensable HMO can you explain it to them, as the above statement will throw untold confusion to anybody who is looking at HMO's


I don't believe RED40 to be completely correct on the fire precautions and the HHSRS. We can insist on hard wired independant and interlinked system especially when the tenants are particularly vulnerable but we can't currently enforce it because it actually doesn't fail on the HHSRS and score a Category 1 hazard as such. Councils can legally enforce solutions to Cat 1 hazards. .

Why cant you enforce it?

I haven't a clue what you are on about being able to enforce anything because it would 'fail', you can enforce just about anything under the categories of HHSRS, its either duty to act or power to act. As long as it falls within the categories youy will be able to do something, its upto the RPT to decide if it fails or not & up to you to decide which notice to serve.

[Widdy1]

I will get some exact wording together to post on this thread. The council I work for are part of the Enforcement Concordat (Government enforcement fair play system) which basically means that we abide by a set code of conduct following strictly the interpretation of the legislation before we act on it and sometimes we have our legal dept give an official line on some problems. Admittedly, it is sometimes lacking and devoid of detail and were I said 'Most Peoples' what I should have said was most legal depts of councils because depending on were you are and the type of HMO's you operate, whether or not they are in Government defined improvement zones etc. etc., you may get ambiguity to some degree but this is definitely an extremely small (probably <1%) chance. The HHSRS is not a system to inflict pain and misery on landlords. For everything we pick up during an inspection, there is strict criteria and national averages that can't be adjusted just willy nilly. We have to be able to justify it because it may go to court and I'm sure some smart overpaid Barrister or Solicitor would tear us a new ass given half a chance if they thought we had overstepped the mark.

What is fair and common sense are the by words. Some of the landlords we deal with think we are out to get them but when you see some of the squalor, disrepair and out and out decrepid housing stock that we see everyday and the money people pay for it because they have little or no choice, common sense is not something we associate with the LL's.

In a single dwelling we can't enforce detector fitment in general. In a high risk flat or bedsit above a car or carpet showroom for example we can. When you have self contained flats with common areas we can enforce as can the fire brigade an L system suitable for the building. Again, for the small cost and piece of mind, we would insist on an interlinked hard wired system in each flat but we couldn't enforce it and if we tried, it could back fire in court. Unless you have used the HHSRS professionally and been trained and certificated to use it, I don't believe that you can read about it on the internet, pretend to understand it and then turn around and say we can just about enforce anything. All hazards from the 29 groups in the HHSRS score averages when we run them through the Government approved software or paper based system. These can fall into groups from A to J. A to C are category 1 hazards and are enforceable by law and any council has a duty to act on them. Those from D to J are category 2 hazards and we have power to act on them but not carte blanche to do so. Scoring a hazard that falls into group G for example, would then have to be so bad, or in an unbelievable state in so many places within a dwelling that it affected or caused more problems than just solving the individual hazard itself before we could rightfully load it towards group C or lower (cat 1) and then we have to be able to back it up. We use worked example books that have most scenarios from real life examples that give guidance and have been authorised by the Government and compiled by the BRE (Building Research Establishment) and other bodies. Unless you see it operating from day to day you need to be careful what you say. Just for extra effect, if a dwelling has a cat 1 hazard it also fails the Decent Homes Standard and is loosely classed as unfit under the old fitness standard. Some hazards like 'Damp and Mould', 'Excess Cold' and 'Falling on stairs' almost always hit cat 1 from the moment we enter the details. Some other hazards are easily adjustable towards cat 1 if we can back it up but may others would not get anywhere near a cat 1 no matter how much we biased it.

I'm sure that some Housing Enforcement Officers think they are God, my experience of these people is that they are small minded have loads of letters after their name and make sure you know it, and when faced with their errors in court after countless attempts for them to drop their case, fall to bits when they are made fools of and then resign because they think everyone is out to get them. Most jobs have people that fit this.

Anyway, I'm going on a bit, it's Friday and I finished work at 3pm today because I was sick of what I witnessed today.

Take a look at the following links:
http://www.communities.gov.uk/index.asp?id=1161785
http://www.communities.gov.uk/index.asp?id=1161786
http://www.communities.gov.uk/index.asp?id=1124877
http://www.communities.gov.uk/index.asp?id=1152190

Bel, when we are asked to give advice we do so. We even produce 2D floor plans showing fire separation, detectors, fire blankets, extinguishers, call points etc etc. We sometimes ask our local Fire Safety officer to call by and give us his advice so that we are able to convey to the LL the best course of action. If your own Fire Safety Officer won't come to you, I suggest you ask his superiors, otherwise take a reasonably accurate floorplan to him and ask him to mark it up for you.

If anyone is interested, I can send you a copy of the officially available Worked Example book in Acrobat (pdf) or Zip formats. The file is 20MB so many of you will not be able to download it via email. I could set up a link but I would need to check if I'm breaking copyright law first.

I've confused you all more now, I know it!!!

[red40]

I've confused you all more now, I know it!!!

Not really Widdy, there are others who use HHSRS everyday and implement it accordingly, luckily we didn't just read about it on the internet before we used it! So, yes I do understand what you are saying professionally. Just seems a pity so many councils officials want to get to a category 1 hazard before they will act, which as you know is not the case.

What concerns me is that you seem to be implying that if you go to, say a HMO and they have sort of a half decent system although its not installed to BS5839, you would ask the landlord to informally upgrade and if he said no you would walk away?

[Widdy1]

I would say that if they have a half decent system, ie: a fully working L2 system correctly installed and to BS's (enforceable and prosecutable by Fire Brigade), then yes we would ask them to install a flat (independant) hardwired and interlinked system but in general we wouldn't be able to enforce it. What usually gets the job done though is how we explain it and 99.99% of the time the LL is not aware of the regs so puts it in without a fuss except for moaning about the cost. In the last year we have had 2 or 3 smart LL's who knew their stuff and point blank refused stating that what they had in place was 'adequate.'

I believe in being fair and trying to interpret my job to the best of my ability within the framework of the law and I don't usually care for legal things so it pains me to say that! Most of the LL's we deal with, approx 90% of them will try and get out of doing basic maintenance so we are up against it many times every month until we take them to court which usually makes them realise that we were serious in the first place. As for ramping hazards into a cat 1, anyone who does it is a fool because any LL who is ahead of the game should be able to demand a copy of the HHSRS report or failing that, should request that the council officer come out and fully explain how they got to a cat 1 which in turn would make any purveyors of the HHSRS look totally unprofessional.

[Bel]

Bel, when we are asked to give advice we do so. We even produce 2D floor plans showing fire separation, detectors, fire blankets, extinguishers, call points etc etc. We sometimes ask our local Fire Safety officer to call by and give us his advice so that we are able to convey to the LL the best course of action. If your own Fire Safety Officer won't come to you, I suggest you ask his superiors, otherwise take a reasonably accurate floorplan to him and ask him to mark it up for you.

It's more than just a floor plan though? Wouldn't they need to consider plasterwork etc. I'm talking about 1970 converted victorian house into self contained flats. Anyways; no one wants to visit the property.

If anyone is interested, I can send you a copy of the officially available Worked Example book in Acrobat (pdf) or Zip formats. The file is 20MB so many of you will not be able to download it via email. I could set up a link but I would need to check if I'm breaking copyright law first.



That would be interesting if possible.

[red40]

In the last year we have had 2 or 3 smart LL's who knew their stuff and point blank refused stating that what they had in place was ‘adequate.'

So just to extend this a little further and because they knew their stuff you chose not to enforce on a category 2. Say the landlord next door (‘A’) has no fire safety measures at all, property is the same in every way and you rate the property and then issue an improvement notice because it’s a category 1 hazard. Landlord (‘B’) next door speaks to his fellow landlord ‘A’ and tells him just to install the same as him, as he knows his stuff and the council wont enforce.

So do you see what I am saying, you are setting a precedent to allow landlords who ‘think’ they know their stuff to advise other landlords, that because a council can’t back up their scoring using and interpreting BS5839, etc, etc, they really only have to put in battery operated smoke detectors in every room as this reduces the hazard to a reasonable level.

believe in being fair and trying to interpret my job to the best of my ability within the framework of the law and I don't usually care for legal things so it pains me to say that!

I am sure that you do widdy, there isn’t an authority that has had a clear understanding of all the legislation, even the fire and rescue services are unsure on how to interpret the RRO and its relation to HMO’s, etc, without even going onto the fire risk assessments and what is applicable and what isn’t. All because central government has made a mess of a piece of legislation that really should have been, oh so simply to write. So when you say ‘enshrined in law on the 1st April 2006’, I take it that was a reference to an appropriate date and a labour government?

Bel below is a document that widdy maybe referring to, along with other worked examples approved by Warwick University who are the person responsible for writing HHSRS, there are loads of other worked examples available on the net, but dont forget its a snap shot of a property on the day of the inspection and the hazards, averages, likelihoods and outcomes for only the next 12 months.

http://www.communities.gov.uk/pub/844/HousingHealthandSafetyRatingSystemHHSRSWorkedexamp lesVersion2PDF6551Kb_id1152844.pdf

http://www.lacors.gov.uk/lacors/search.aspx?N=6%2032%2041%2052%2010035&Ne=10000&Ns=DOC_PUBLISHED&Nso=1&id=&tl=&prev=6+32+41+52+10000

Widdy while we are the subject of HHSRS have you got access to LACORS website and their publications, you need a user name and password. If you have have a look at the RPT decisions they are very useful and give some good guidance as to the way they interpret the HHSRS issues. One which may interest you was to do with fire safety on the 21st December 2006.

[Widdy1]

I get what you are saying, without a doubt, but basically we are waiting for the Joint Protocol between us and the Fire Service to be finalised (next month hopefully) so we can get on with a proper and professional service. Even at this time, our local Fire Safety Officers only fit free lithium powered standalone detectors to help out. We are fed up with the central government botch up with what is a very simple bit of legislation to design. Unfortunately, and this is another of my pet hates, as for everything in this country, many people design or devise or control others who have little or no understanding of what they are doing and usually have no experience in those fields except, wait for it.....they have a degree or letters after their name that prove they can do the job. Sorry to all those people, myself included who do have hard studied and won qualifications that don't brag about their letters after their name and who have the experience to back it up whom I may have offended. Apologies!

Bel, we don't just supply a floor plan. It has all the fire separation details on it ie: fire boarding, underboarding, fire doors, door closers, intumescent seals, fire extinguishers and blanket etc etc. just as previously stated. Basically, because one or two of us have building regs qualifications etc, our floor plans are very comprehensive.

Red40, I have access to LACORS so I will take a look tomorrow when I get in to work.

[red40]

I have access to LACORS so I will take a look tomorrow when I get in to work.

Good, although they aren't exactly upto date there are now quite a few on the official RPT website (decisions).

If one thing that has become clear with HHSRS was, and I suspect, never intended for HMO's until one of those people with the BA(Hons) in IT archaeology decided it could be!

[Grange]

Lord help you if you are in Westminster. Their Environmental Health department sends out letters that are not written in comprehensible English and refuses to (is unable to) clarify them.