Upper Tribunal Reins in Blanket HMO Licence Conditions

A recent Upper Tribunal decision limits how far councils can go with standard HMO licence conditions. Here's what landlords and authorities need to know.

Local housing authorities across England routinely attach lengthy schedules of standard conditions to the licences they grant for houses in multiple occupation (HMOs). A recent decision of the Upper Tribunal (Lands Chamber) delivers a clear warning that this convenient administrative practice has legal limits. In Fletcher v Portsmouth City Council, His Honour Judge Johns KC struck down or pared back several of Portsmouth's standard conditions and, more significantly, held that conditions imposed under a blanket, city-wide policy are entitled to less deference from tribunals than conditions genuinely tailored to the property being licensed.

Background

Simon and Iva Fletcher held an HMO licence for a student let at 1 Sheffield Road, Fratton, granted by Portsmouth City Council in January 2024. The licence contained 36 conditions in a standard form applied across the whole city, designed after consultation to align the Council's mandatory HMO licensing with its other licensing schemes. The Fletchers challenged many of those conditions before the First-tier Tribunal (Property Chamber), with only limited success, and then appealed to the Upper Tribunal on six grounds.

The legal framework is Part 2 of the Housing Act 2004. Every licence must include the mandatory conditions set out in Schedule 4 to the Act (covering matters such as gas safety certificates, electrical safety, smoke and carbon monoxide alarms, and giving occupiers a written statement of their terms of occupation). Beyond that, section 67(1) gives the authority discretion to include such further conditions as it considers appropriate for regulating the management, use, occupation, condition and contents of the house. Following the Court of Appeal's decision in Hussain v Waltham Forest LBC [2023] EWCA Civ 733, a tribunal hearing an appeal asks whether the authority's decision was wrong, that is, whether the tribunal disagrees with it after giving appropriate weight to the authority's role as primary decision-maker.

Prescribing tenancy terms went too far

Condition 18 required the Fletchers to provide written tenancy terms covering specified matters the type and duration of the tenancy, rent, deposit, an inventory of contents and condition, and contact details for reporting repairs and to supply copies to the Council on demand.

The Council argued this simply gave effect to the mandatory condition in paragraph 1(5) of Schedule 4, which requires a licence holder to supply occupiers with a written statement of the terms on which they occupy. Judge Johns disagreed. The mandatory condition is concerned only with supplying a statement of whatever terms exist; it does not authorise the authority to prescribe the substance or scope of those terms. By dictating what tenancy agreements must contain, condition 18 also fell foul of section 67(5) (conditions imposing obligations on persons other than the licence holder require their consent) and section 67(6) (conditions may not require alteration of the terms of any tenancy). Nothing in the condition's wording confined it to new lettings. The condition was rewritten so that it simply mirrors the statutory wording.

Notably, the judge did not say that authorities can never go beyond the Schedule 4 mandatory conditions. Additional requirements may survive if they have their own justification under section 67(1) and (2). The problem in this case was that no adequate justification had been offered.

"On demand" document production undermines statutory safeguards

Several conditions, including requirements to hand over tenancy documents, tenant references and inspection records within seven days of a written request were challenged as subverting section 235 of the 2004 Act. That section already gives authorities a power to require production of documents, but it comes with built-in safeguards: a formal notice must specify precisely what is required, when and to whom, and must warn of the consequences of non-compliance.

The Tribunal accepted the challenge. Conditions requiring a landlord to keep records are sensible and unobjectionable. But conditions allowing the authority to demand production of underlying documents outside the section 235 process, stripped of its safeguards, need particular justification, and none was offered. The judge distinguished the mandatory Schedule 4 conditions that require documents on demand: those concern declarations made by the licence holder about safety, not underlying records, and the one true document (the gas safety certificate) is produced annually rather than on demand. Conditions 20 and 32 were varied to remove the on-demand production obligations while preserving the record-keeping requirements.

The Provision of Services Regulations do not govern licence conditions

The most legally intricate ground invoked regulation 15 of the Provision of Services Regulations 2009, which requires authorisation schemes to rest on criteria that are objective, transparent, proportionate and non-duplicative. Relying on R (Gaskin) v Richmond upon Thames LBC [2018] EWHC 1966 (Admin) which held that HMO licensing under Part 2 is an authorisation scheme for these purposes, the Fletchers argued that numerous conditions failed those criteria or duplicated existing legislation.

The Tribunal rejected the argument, drawing on the Supreme Court's analysis in R (Hemming) v Westminster City Council [2015] UKSC 25. That case distinguishes between the authorisation scheme itself, the procedures and formalities for obtaining a licence, and conditions attached to the exercise of the licensed activity once authorisation has been granted. Portsmouth's challenged conditions were not requirements that had to be met before the licence could be granted; they regulated how the licensed HMO was to be operated afterwards. They therefore fell outside regulation 15 altogether. CJEU authorities cited by the Fletchers, including Harmsen and Cali Apartments, did not disturb that distinction. The judgment also flags, without deciding, the diminishing significance of EU case law following the Retained EU Law (Revocation and Reform) Act 2023.

This is a point of real practical importance: landlords hoping to deploy the 2009 Regulations against the content of licence conditions will now face a substantial obstacle.

Duplicating other legislation creates confusion

Condition 15 dealt with electrical safety in detailed terms that partially reproduced but did not accurately match the Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020. The Fletchers pointed out that the condition misstated the landlord's duties, referred to redundant regulations and blurred the crucial distinction between classification codes in electrical inspection reports.

The Tribunal agreed. A licence condition should not be used merely to remind a licence holder of obligations that exist elsewhere, and a condition that imperfectly restates a parallel statutory regime, one with its own enforcement machinery of remedial notices and financial penalties, is a recipe for confusion. Condition 15 was cut back to the bare mandatory wording. By contrast, a waste-disposal condition survived, because the FTT had found genuine justification for requirements going beyond the statutory minimum.

Blanket conditions attract less deference

Perhaps the decision's most consequential passage concerns Portsmouth's admitted practice of imposing identical conditions in every licence across the city. Drawing on Nottingham City Council v Parr [2018] UKSC 51 and the language of the 2004 Act itself which repeatedly ties the licensing judgment to "the house" concerned, the judge held that appropriateness must be assessed by reference to the particular property and its mode of occupation.

Where an authority imposes conditions simply because they are the conditions it imposes in every case, tribunals should accord its decision less weight as the primary decision-maker. Standard conditions are not banned: the judgement acknowledges their administrative practicality. But they should function as a menu from which the authority selects and adapts what suits the individual property, not as a one-size-fits-all regime.

Confidentiality and tenant references

Finally, condition 20's requirement to supply copies of tenant references, including credit history and right-to-rent checks to the Council on demand was held inappropriate on data-protection grounds as well. The mandatory condition on references in Schedule 4 (which in any event applies to selective licensing under Part 3, not Part 2) supports requiring landlords to take references, not to hand copies to the authority. The Council's suggestion that landlords could redact sensitive details found no footing in the condition's actual wording.

Practical implications

For local housing authorities, the message is threefold. First, review standard condition banks: conditions that prescribe tenancy content, demand documents outside section 235, or restate other legislation inaccurately are now vulnerable. Second, build in a genuine property-specific assessment before attaching discretionary conditions, and record the justification because it is against that justification that appropriateness will be judged. Third, where mandatory conditions are concerned, the safest course is to track the statutory wording closely.

For landlords, the decision confirms that the FTT's Hussain jurisdiction has real teeth, and that a blanket-policy origin is a legitimate point of attack on any condition. It also closes off, at least for now, the Provision of Services Regulations as a route for challenging the content of conditions while leaving open for a future case the argument that conditions regulating the commercial substance of tenancies fall outside section 67(1) entirely.

Permission to appeal to the Court of Appeal is available on points of law, so this may not be the last word. For the moment, however, Fletcher stands as the leading guidance on how far councils can go when loading HMO licences with standard terms.

If you hold an HMO licence and are concerned that its conditions go further than they should, or you are facing enforcement action connected to those conditions, the Fletcher decision may be directly relevant to your position. We help landlords, letting agents and property professionals understand and, where appropriate, challenge the conditions attached to their licences, and we support clients through the licensing and enforcement process from start to finish. Our background in environmental health and housing law means we can assess whether a condition is genuinely justified for your property or simply part of a blanket policy.

If you would like advice on your HMO licence conditions or any related enforcement matter, get in touch for a free initial conversation.