mandatory licensing of houses in multiple occupation · licensing of houses in multiple occupation...

MANDATORY LICENSING OFHOUSES IN MULTIPLE OCCUPATION:GUIDANCE FOR LICENSING AUTHORITIES

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© Crown copyright 2004

ISBN 0 7559 4240 X

Scottish ExecutiveSt Andrew’s HouseEdinburghEH1 3DG

Produced for the Scottish Executive by Astron B36112 7-04Published by the Scottish Executive, July 2004

Further copies are available fromThe Scottish ExecutivePrivate Sector and Affordable Housing Policy DivisionTel: 0131 244 5528

The text pages of this document are produced from 100% elemental chlorine-free,environmentally-preferred material and are 100% recyclable.

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PageIntroduction 2

Part 1 – Overview of Legislation1-1: The HMO Licensing Order 51-2: General Licensing Provisions 7

Part 2 – Administration of Mandatory HMO Licensing2-1: Co-ordination and Preventing Duplication 112-2: Verification of Compliance with Licensing Requirements 13

2-2.1 Direct inspection of physical standards 132-2.2 Direct inspection of tenancy management standards 152-2.3 Verification by licensee’s declaration 16

2-3: Identification, enforcement and complaints 212-4: Fees 232-5: Co-ordination with other regulation 25

2-5.1 Fire Safety 252-5.2 Building Regulations (see 3-3) 252-5.3 Social Housing 252-5.4 Scottish Commission for the Regulation of Care 262-5.5 Local Authority Social Care and Homelessness services 272-5.6 Planning 27

Part 3 – Standards and Licensing Conditions3-1: Fit and Proper Person 313-2: Management Standards and Licensing Conditions 32

3-2.1 Recommended Licensing Conditions 323-2.2 Tenancy / Occupancy Agreements 363-2.3 Recommended elements of tenancy / occupancy agreements 37

3-3: Physical Standards 39

AnnexesAnnex A: The Civic Government (Scotland) Act 1982 (Licensing of 45

Houses in Multiple Occupation) Order 2000

Annex B: Illustrative Questionnaire for Licensee’s Declaration 54

Annex C: Technical Specification for Benchmark Standards 62

Annex D: Working Group and Reference Group Membership 70

CONTENTS

INTRODUCTION

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WHO THIS GUIDANCE IS FOR

This guidance is mainly for local authorities.It concentrates on the internal structures,procedures and policies required to effectivelyoperate the HMO licensing system. It may alsobe helpful to organisations which deal closelywith local authorities on HMO issues and needto understand their internal processes in detail.

Separate information is available for landlords,tenants and anyone who is concerned about anHMO in their neighbourhood.

Why this guidance was produced

Standards of physical accommodation andmanagement in multiply-occupied housing havebeen an issue of concern for many years, and avariety of schemes have been implemented inan attempt to control and improve thosestandards. In 1991, local authorities in Scotlandwere given discretionary powers to introducelicensing of houses in multiple occupation(HMOs) under the Civic Government (Scotland)Act 1982. In 2000, a new Order under that Actwas made, making it mandatory for allauthorities to introduce an HMO licensingscheme.

When the 2000 Order was introduced, ScottishMinisters gave an undertaking to review theoperation of the mandatory scheme after thefirst year of its operation. A research project wascommissioned, resulting in the report, “A reviewof the first year of mandatory licensing of housesin multiple occupation in Scotland” by HectorCurrie, published in 2002. At the same time, theSocial Justice Committee of the ScottishParliament conducted a separate enquiry intothe scheme, and reported in February 2003.The results of both of these exercises wereconsidered by Ministers, along with evidencefrom correspondence and other representations,as part of their review.

The then Minister for Social Justice concludedthe licensing scheme should continue largely inits existing form, but that some changes wereneeded in the way it was implemented by localauthorities. Some specific changes wereproposed, including the development of ascheme of “self-certification”, to help licensingauthorities reduce the burden of regulation onpublicly accountable landlords and focus moreresources on tackling those landlords who werenot willing to comply with licensing and raisetheir standards. In other areas, there was a needto disseminate the experience gained and goodpractice identified (as well as pitfalls to beavoided) since mandatory licensing came intoforce. And so this guidance was developed.

During the development of the guidance, it wasfound that the term “self-certification” wassometimes misinterpreted, and so it wasreplaced as a term by the concept of verificationby licensee’s declaration. Verification ofstandards is dealt with in Part 2, includingverification by licensee’s declaration at section2-2.3.

How this guidance was produced

The guidance was produced by a working grouprepresenting a wide range of organisations withan interest in HMO licensing. This included“regulators” (local authorities, fire authoritiesand the Scottish Executive), HMO operatorsfrom a range of sectors, and organisationsrepresenting the interests of tenants. A coreworking group broadly representing the mainsectors met for discussion, and papers werecirculated for written comment to a widerreference group to ensure that the specificinterests of particular client groups wereincluded. A list of the members of both groupsis provided at Annex D.

The working group also made a number ofrecommendations to Ministers for furtherchanges to the HMO licensing legislation.

Should these or other legislative changes bemade, further guidance will be issued at theappropriate time.

What the guidance contains

The guidance focuses on the procedures andactivities involved in operating the HMOlicensing scheme.

Part One briefly describes the provisions of theOrder and the statutory proceduresfor licensing under the CivicGovernment (Scotland) Act 1982.

Part Two deals with operating the scheme,setting out good practice in areassuch as internal co-ordination,inspection and verification ofstandards, licensing enforcement,and fees.

Part Three discusses the key areas which localauthorities should consider in settingstandards and licensing conditions.

Annex A contains a consolidated version ofthe HMO licensing Order,incorporating amendments up to andincluding October 2003.

Annex B gives a sample questionnaire whichcould be used in the licensee’sdeclaration.

Annex C contains detailed specificationsrelating to the physical Benchmarkstandards.

Annex D gives the membership of the workinggroup and reference group.

Note

This guidance should be read in conjunctionwith the relevant legislation, the CivicGovernment (Scotland) Act 1982 and The CivicGovernment (Scotland) Act 1982 (Licensing ofHouses in Multiple Occupation) Order 2000, asamended in 2002 and 2003. The guidanceshould not be taken in itself as an authoritativestatement as to the law. Local authorities mustsatisfy themselves that their procedures enablethem to comply with the requirements of thelegislation. The interpretation of the law isultimately a matter for the courts.

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(Civic Government (Scotland) Act 1982(Licensing of Houses in Multiple Occupation)Order 2000, as amended)

The Civic Government (Scotland) Act 1982 sets outa general system for licensing a range of activities.New activities can be added by Order, and such anOrder can make changes to the general system asit applies to that particular activity.

What is the licensable activity?

A person needs a licence if they give permissionfor a house to be occupied as an HMO. Only theowner of a house can give such permission. Theapplication for a licence must therefore be madeby the owner, even if the property is leased to ormanaged by another person or organisation.

What is the definition of an HMO?

A house is an HMO if it is the only or principalresidence of three or more qualifying personsfrom three or more families.

In this context, “house” includes any part of abuilding occupied as a separate dwelling. Thelegislation covers not only ordinary houses, flatsand bedsits, but all residential accommodation,including hostels, student halls of residence,staff accommodation in hotels or hospitals, andso on. Houses within a building which, althoughotherwise separate, share use of a toilet,personal washing facilities or cooking facilities,are taken to form part of a single house.

There is no statutory definition of “principalresidence”. The Order states only that astudent’s term-time residence is to be taken astheir principal residence, and that a hospital isnot the principal residence of patients. It isgenerally agreed that principal residence is notsimply a matter of the number of days spent atan address, but that it depends on the “qualityof occupation”. Even a hostel where people stayfor only a few months may be their principalresidence for that period.

Where an owner of a house lives there and letsout rooms, or shares with friends, the owner isnot counted as a “qualifying person”, nor areany members of their family that live withthem. The requirement is that they should havea heritable right of ownership. If the ownerliving in the house is a joint owner, it does notmatter how small their share of ownership maybe.

The definition of “family” is set out in full inparagraph 2(5) of the Order. It includes unmarriedand same-sex couples. It does not include cousins.

Are there any exemptions from licensing?

There are three main classes of property that areexempt from the HMO licensing scheme.

• Religious communities are exempt becauseof their spiritual and voluntary nature.

• Properties where each occupant, or at leastone member of each occupying family, has aheritable right of ownership are exempt, asare those owned by communal groups. In thiscase the group must be established as aco-operative housing association, themanagement of which is undertaken bygeneral meeting.

• Accommodation provided as part of a serviceregistered with the Care Commission as:

– A care home service

– An independent health care service

– A school care accommodation service, or

– A secure accommodation service.

For these categories, the Care Commission setsand monitors standards for the accommodationin which the service is provided, as well as theservice itself. In other categories, particularlyhousing support services, the Care Commissiononly regulates the service provided, and theaccommodation is not exempt from HMOlicensing.

1-1: THE HMO LICENSING ORDER

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1-1: THE HMO LICENSING ORDER

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Crown property is also exempt, but all other HMOsmust be licensed, including those operated bylocal authorities and other public bodies.

What sanctions are there for operating an HMOwithout a licence?

It is a criminal offence to operate an HMOwithout a licence. The maximum penalty is level5 (currently £5000).

How are property managers or letting agentsaffected by licensing?

If the day-to-day management of the property iscarried out by someone other than the owner,they will be named on the licence as a jointlicence-holder.

Letting agents or property managers shouldcheck that their clients are licensed wherenecessary. It is a criminal offence for anyone toact as an agent for an unlicensed owner of alicensable HMO, by doing anything “whichdirectly permits or facilitates the occupation ofthat house” as an HMO. The maximum penaltyis the same as for the unlicensed owner.

If a licensing authority suspects that a house isan HMO, they may ask the agent for the owner’sname and address, and it is an offence to fail tocomply with such a request. The maximumpenalty is level 3 (currently £1000).

1-2: GENERAL LICENSING PROVISIONS

The statutory procedures for all licensing activitiesare contained mainly in Schedule 1 of the CivicGovernment (Scotland) Act 1982. Part 2 of thisguidance provides advice and good practice onhow the procedures should be implemented forHMO licensing.

What happens when someone applies for a licence?

The owner submits their application to thelicensing authority, together with the appropriatefee. The owner must also display a notice outsidethe property for 21 days, informing the public ofthe application and how to submit objections.(Women’s refuges are exempt from thisrequirement, but the local authority may notifyappropriate neighbours by letter.)

The licensing authority has to satisfy itself:

• That the applicant, and any manager of theHMO, is a fit and proper person to hold alicence.

• That the property is suitable for use as anHMO, for the proposed number of people.

The authority must copy the application to theChief Constable for the area, so that he can tellthe authority if the applicant or manager haveany relevant convictions. He may also provideinformation about any relevant complaintsagainst the applicant or manager, or in relationto the property. The authority must also copy theapplication to the fire authority, who will beinvolved in deciding whether adequate fireprecautions and means of escape are provided.

Officers of the licensing authority (and probablythe fire authority) will usually visit the property tocheck the physical standards and facilities, andthe applicant will be required to provide evidenceof appropriate management standards, such asforms of lease and rent records. Officers of thelicensing authority have rights of entry andinspection to make these checks. They will tellthe applicant what changes (if any) need to be

made before the property will be consideredsuitable to be an HMO.

Any person may make an objection to a licenceapplication. The authority must copy any suchobjection to the applicant, and must notify theapplicant of any other information they intend totake into account in considering his application.The applicant must at least be given anopportunity to comment in writing on anyobjections and other information, and thelicensing authority may give the applicant andany objectors an opportunity to be heard inperson.

Decisions on licence applications are made eitherby the Licensing Committee, or by an officerwith delegated powers. Licences are usuallygranted subject to conditions, which ensure thatthe HMO is properly managed and appropriatestandards are maintained throughout the periodof the licence. If the HMO is not managed bythe owner, the owner and manager will benamed as joint licence-holders.

The licensing authority must keep a register ofapplications and the decisions made on them.

Is there an appeals process?

Either the applicant or an objector can appeal tothe sheriff against the decision of the licensingauthority to refuse or to grant a licence. Theappeal must be made within 28 days of thedecision being made. The sheriff may reverse ormodify the authority’s decision, or he may returnthe case to the authority to reconsider, with hisreasons.

How long does it take to apply for a licence?

The licensing authority must make a decisionwithin 12 months of receiving an application fora licence. This is longer than the normal periodof 6 months for other types of licence, to allowthe applicant to make physical changes to theproperty if necessary. However, authorities are

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1-2: GENERAL LICENSING PROVISIONS

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not expected to take 12 months if no physicalchanges are required.

Can the HMO operate while an application for alicence is being considered?

Generally no. The owner must obtain a licencebefore the HMO is occupied. However, where anapplication has been made, the licensingauthority may decide to take no action.Alternatively they may consider granting atemporary licence until the application isdecided.

How long is an HMO licence valid? Can they berenewed?

A licence may be granted for any period up tothree years. Most authorities award all licenceseither for one year or for three years, but somevary the duration of individual licencesdepending on an assessment of various factorsin the application. An application for renewalmust be made before the end of the licenceperiod, and goes through the same process asfor the initial application, including theopportunity for objections to be made. Someauthorities award renewals for a different period(longer or shorter) than the original licence.

If the day-to-day management of the property iscarried out by someone other than the owner,they will be named on the licence as a jointlicence-holder. If there is a change of manager,the licence continues in force for six weeks fromthe date of the change, to allow the owner tomake a new application. Provided a newapplication is made within that six week period,the original licence then continues in force untilthe new application has been decided.

If a licence-holder dies, the licence is deemed tobe granted to his executor, and remains in forcefor three months from the date of death. Thelicensing authority may agree to extend that

period, if this is necessary to allow the estate tobe wound up.

Can changes be made during the period of thelicence?

If there is a material change of circumstanceaffecting the licence-holder or the operation ofthe HMO, the licence-holder must inform thelicensing authority as soon as possible. Nomaterial change must be made to the propertyitself without the prior consent of the authority.

The authority can vary the terms of the licenceat any time, either at their own discretion or ifthe licence-holder asks them to do so (forexample to make a change to the property). Thelicence-holder must be given notice and anopportunity to be heard before a variation isimposed, and can appeal.

When can a licence be suspended or revoked?

A licensing authority can suspend a licence if intheir opinion:

• The licence-holder is no longer a fit andproper person to hold the licence

• The HMO is causing or is likely to causeundue public nuisance or a threat to publicorder or safety

• The licensing conditions have beenbreached.

The authority can take into account the behaviourof people in or around the HMO. In terms ofpublic order or safety this could include peopledemonstrating against the HMO or someoneliving there, as well as actions by the residentsor their visitors. The process for suspensionincludes a hearing and appeal process.

A licence may be revoked by the sheriff if alicence-holder is convicted of a relevant offencein relation to the licence. The relevant offences

deal with breach of licensing conditions,preventing the inspection of the HMO or ofrelevant records, and failing to obtain permissionfor or inform the licensing authority of materialchanges. All these offences are punishable byfines, but the sheriff may also decide to revokethe licence, and may disqualify the licence-holder from holding a licence for up to 5 years.

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PART 2: ADMINISTRATION OF MANDATORY HMO LICENSING

The purpose of HMO licensing is to improvestandards in this part of the private rentedsector, in terms of both physical accommodationand the management of tenancy issues. HMOsprovide an important supply of housing,particularly for some groups of people, such asstudents, transient workers, and those whorequire support in a homely setting. However,many HMO tenants are unaware of their rights,or have few housing choices, and are thereforevulnerable to exploitation. While the greatmajority of landlords want to provide goodquality housing and have good relationships withtheir tenants, the HMO sector can be attractiveto a minority who are interested only in profitwith the minimum of effort.

It is therefore important for a number of reasonsthat the administration of HMO licensing shouldbe well co-ordinated and make best use ofcouncil resources. Local authorities areencouraged to engage positively with landlordswho are keen to maintain high standards andimplement good practice. Clearly it is easier tomaintain good relationships where landlords feelthey are receiving a good service in response tolicence applications and queries, and wherethey feel their licence fees are well spent. Thosewho have made the effort and outlay to obtain alicence also want to see that those who have notare pursued. If the procedures for dealing withapplications are efficient, and if a lighter touch isemployed in relation to landlords who have builtup a track record of maintaining high standards,the licensing authority will be able to devotemore resources to identifying and dealing withthose landlords who operate illegally and letunsafe accommodation.

2-1: CO-ORDINATION AND PREVENTINGDUPLICATION

Processing an application for an HMO licencerequires the involvement of officers from severaldifferent disciplines, departments and agencies.The officers involved are likely to represent:

• Legal services/licensing section

• Environmental Health

• Building Control

• Housing

• Fire authority (statutory consultee)

• Chief Constable (statutory consultee)

It is important that the work of all these people iswell co-ordinated, in order to provide best valuefor the local authority and partner agencies, andan efficient, consistent service to licenceapplicants. Co-ordination needs to take place atall levels.

Administration

In terms of administration, to provide aneffective service to the public, it is usually bestto have a clearly identified team as a single pointof contact for enquiries, applications, objectionsand complaints. Information from other councildepartments or partner agencies aboutsuspected HMOs, or suspected breaches ofconditions, could also feed into this point. As acentral point of co-ordination, this team couldalso have responsibility for distributinginformation about applications to the otherofficers whose views are required, organisingjoint visits to the property, collating reports, andorganising action on complaints, as well as allcorrespondence with applicants and objectors.Sharing of information may be facilitated by acomputerised record system which all relevantofficers can access to view the status ofapplications and keep informed of input fromother areas.

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Requirements of the Licensing Committee

The power to grant licences under the CivicGovernment (Scotland) Act 1982 belongs to thelicensing authority, and is usually exercisedthrough a Licensing Committee. Committeesmay wish to consider their procedures fordealing with licence applications, to ensure thatan appropriate balance is struck betweendetailed scrutiny of reports and efficient use ofcouncillors’ and officers’ time.

Licensing Committees may consider delegatingauthority to a senior officer to grant HMOlicences in straightforward cases. Delegatingauthority in this way can bring advantages on allsides; it reduces the number of cases for theCommittee to hear, reduces the time spent byofficials preparing and presenting cases to theCommittee, and enables applicants to receive adecision without waiting for the next Committeemeeting. It is for each authority to decide theextent of any delegation, but Committees maywish to see only those applications for whichofficials recommend refusal, and those againstwhich there are significant objections.

Where applications are brought to the LicensingCommittee, reports will need to be presented byofficials. The Committee’s requirements in thisrespect will have a significant effect on theprocess of dealing with applications at all stages.If several officers are required to report directlyto the Committee, they will probably each wishto personally inspect the premises to which theapplication relates. Committees may wish toconsider whether they might instead accept asingle combined report presenting the views ofall departments and agencies. This could givemore scope for joint working and reduceduplication of effort by, for example, inspectionsbeing undertaken by a single officer instraightforward cases (see section 2-2.1)

2-1: CO-ORDINATION AND PREVENTING DUPLICATION

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Management

At a management level, it may be helpful toestablish a group which meets regularly to dealwith any issues that may arise in relation to jointworking, such as inter-departmental or inter-agency procedures, professional responsibilities,staffing, and prioritisation of licensing in relationto other activities.

Technical

Although standards may differ in their content, itis vital that a consistent approach is applied toall landlords, and that each landlord receivesconsistent information about what is required ofhim. There must therefore be a sharedunderstanding among those officers involved ininspecting properties and processingapplications. Authorities will wish to putprocedures in place to ensure that anydifferences of view between the variousdisciplines involved, about the standards to beapplied or methods of satisfying the standards,can be resolved centrally and the agreedposition clearly communicated to all inspectingofficers. Discussions may also be required wherenew situations arise, either a type of HMO whichhas not previously been encountered, or newtechnology or a new approach which may offer adifferent way of satisfying standards. It may bepossible for both technical and managementissues to be addressed by the same group.

Policy

The development of policy on HMO licensingshould be considered by councillors and seniorofficers from the various relevant departmentswithin the council. It is also likely to be helpful toinvolve a representative of the Fire Brigade.Operational officers need to be aware of theviews of councillors to ensure that their advice tolandlords is in line with the requirements of theLicensing Committee.

2-2: VERIFICATION OF COMPLIANCE WITH LICENSING REQUIREMENTS

When an initial application for an HMO licenceis made, the licensing authority will determinethe standards which need to be met, in terms ofphysical features, management, and the“fitness” of the owner and manager. Some ofthese standards will be the same for all HMOs,others will be set individually, depending on theparticular circumstances. Guidance onstandards and their application is contained inPart 3. The licensing authority will need to besatisfied that these standards are met before itgrants or renews the licence. The conditions ofthe licence will require, among other things, thatthose standards are maintained throughout theperiod of the licence.

There are three ways in which the licensingauthority can obtain evidence to verify that thestandards are met and licensing conditionscomplied with:

• Direct inspection involves officers of thelicensing authority checking standards inperson, by inspecting the property,scrutinising leases, gathering evidence fromtenants and neighbours about themanagement of the property, and so on.

• Evidence from third parties can confirm thatcertain requirements have been checked byan appropriate certifier or are controlledunder other forms of regulation, and neednot be checked again.

• Licensee’s declaration (see section 2-2.3)describes a process by which the owner ofthe property confirms to the licensingauthority, in a legally binding document, thatthe licensing requirements are being met.

Evidence will usually be gathered by acombination of two or three of these methods.For some requirements, only a third party canprovide the necessary evidence; for example, agas safety certificate must be provided by aCORGI registered certifier. For other aspects,

such as tenancy agreements provided by anRSL, the licensing authority could inspectdirectly, but this would generally be unnecessaryduplication of regulation (in this case with thework of Communities Scotland) – see section 2-5on co-ordination with other regulation. Inaccepting evidence from third parties, thelicensing authority may wish to check thecertifier’s credentials, or to check that thelicensee has the registration they claim. If it isnot practicable to do this in every case, theauthority could consider establishing a system ofrandom sampling.

2-2.1 DIRECT INSPECTION OF PHYSICALSTANDARDS

Licensing authorities normally wish all HMOs tobe inspected at initial application, to check thatthe requirements of both the licensing authorityand the fire authority are met, and torecommend any alterations. In many cases theywill also need to be inspected at the renewalstage. Even where licensees’ declarations areaccepted for renewals, following the procedureproposed in section 2-2.3, there will be randomchecks and scheduled inspections at agreedintervals. Authorities will wish to consider themost efficient way of arranging inspections. Theywill be able to concentrate more effort onenforcement action against landlords who do notcomply with licensing, if they can reduce thetime spent on re-inspecting properties where noproblems have been reported.

Streamlining the inspection process is also likelyto be welcomed by landlords and tenants.Residents understandably prefer to minimise thenumber and frequency of officials tramping inand out of their home. For the owner, there isthe cost and inconvenience of being present, orarranging for a representative to be present, ateach inspection, and it may be difficult or evenintimidating to deal with a group of severalofficers. If there appears to be a lack of co-

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ordination or duplication, those affected by thelicensing regime may also feel that fees (andconsequently rents) could be reduced by moreefficient working.

There are three areas in which inspection andreporting processes can be streamlined: thenumber of visits made, the number of officersvisiting the property, and the number of reportsproduced.

Multiple officer inspection

Multiple inspection visits by members ofdifferent departments on different occasions areunlikely to be an efficient use of resources. Asnoted above, they are disruptive to residents ofthe property and to operators. Separateinspections do not give officers insight into theother issues involved in HMO licensing, and maylead to inconsistent advice being given wherestandards overlap, especially between fire andbuilding control officers. Wherever possible, asingle inspection visit should be arranged.

A single inspection visit may be undertaken bymultiple officers. This is the most commonapproach at present, which saves both thelandlord and tenant the inconvenience ofrepeated visits. It has the advantage that all therelevant expertise is on hand to advise thelandlord directly. Co-ordination at managementand technical levels should ensure that anyconflicts between the different disciplines areresolved before advice is provided to thelandlord, and officers will have more insight toenable them to take account of wider issues.However, it can be difficult to arrange joint visits,and this approach does not reduce either thenumber of people entering the tenant’s home, orthe total amount of officers’ time expended.Landlords may also be unclear who to contactfor follow-up specialist advice. Inspectingofficers should explain their separateresponsibilities and ensure the landlord hascontact details for future use.

Single officer inspection

An alternative approach which licensingauthorities may consider adopting is to have asingle officer undertake the inspection visit inmost cases, with specialist advice available fromother departments where necessary. Those otherdepartments would make an initial desk-basedassessment of the application to decide whetherthe property presented particular risks orunusual features which would need them toattend. If not, they would advise the inspectingofficer of the standards required, and he wouldconsult with them if any unexpected issuesarose during the visit. In order for this method tobe effective, the inspecting officer must havesufficient training in all disciplines to be able toidentify possible problems which require specialistconsideration, and clear procedures must beestablished for consulting with specialists. Thereis also a risk that the inspecting officer wouldneed to change their advice to the landlordfollowing consultation; where necessary, itshould be made clear to the landlord that theinspecting officer’s advice is provisional.

Local authorities may consider establishingsingle enforcement officers for HMO licensing,who would be equipped to carry out inspectionswithout other support. However, concerns havebeen expressed about the ability of any oneofficer to have sufficient expertise in all therelevant disciplines. The establishment ofspecialist HMO officers could also detract fromthe flexibility of departments such asEnvironmental Health and Building Control toadapt to changing priorities.

If the licensing authority chooses to use singleofficer inspections, either with additionalspecialist advice or by a trained singleenforcement officer, they must also considerofficers’ personal safety and the possible needfor corroboration of conversations with thelandlord. These issues should be judged on an


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individual basis, taking into account thecircumstances of each visit, in line with theauthority’s policies and procedures for otherservices.

Reports

Where the inspection visit is undertaken bymultiple officers in a joint visit, either a singlereport or individual reports may be produced. Itis likely to be most helpful to the landlord if hereceives a single note of the officers’ findings.This will avoid any confusion if, for example,both building standards and fire officerscomment on the same issue. The form ofreporting to the Licensing Committee willdepend on the Committee’s wishes, but again itis suggested that a single report might beconsidered. This would draw togethercontributions from each discipline in a standardformat, addressing each issue in turn.

Sensitivity in inspection visits

It is important for all inspecting officers to beaware that they are visiting someone’s home,and to behave with sensitivity to that situation.Both the scheduling of visits and the behaviourof inspecting officers may need to take accountof religious and cultural issues. Language issuesmay also arise, with either tenants or landlords,and interpreting services (both for otherlanguages and for special communicationneeds) should be made available wherenecessary.

Tenants should have been made aware of theinspection by the landlord, but it may benecessary to explain again why officers need toenter their rooms. The landlord or tenants maybe distressed or angry if changes to the propertyare suggested, so officers should be trained todeal sensitively with difficult reactions. Wheretenants are particularly vulnerable, for examplein a women’s refuge or accommodation forpeople with community care needs, officers may

wish to make special arrangements, beingguided by the landlord or support workers. Itmay help, for example, to schedule extra time tomeet with the tenants in a communal areabefore inspecting their private rooms.

2-2.2 DIRECT INSPECTION OF TENANCYMANAGEMENT STANDARDS

Local authorities are encouraged to place greateremphasis on ensuring high standards of tenancymanagement in HMOs than has generally beenthe case to date. Confirmation that tenancymanagement standards are satisfactory shouldbe part of the processing of every licenceapplication, and any deficiencies should behighlighted to the Licensing Committee or officerwith delegated authority to determineapplications. However, this is not an issue whichlends itself to “on-site” inspection, particularlynot at the same time as the physical inspection.A different range of skills are required, and anawareness of different issues.

Guidance on key elements to be included intenancy or occupancy agreements, and keyfacets of tenancy management, is given insection 2-3.2. Much of this can be verified as adesk-based exercise, checking tenancyagreements, information provided to occupants,rent records, etc. If any problems are identifiedin this area, they may be discussed with thelandlord either by telephone or at the localauthority office. It should be noted that it is notnecessary for licensing authorities to check thecontents of tenancy or occupancy agreementsgiven by Registered Social Landlords, becausethe form of these agreements is checked byCommunities Scotland – see section 2-5.

Contact with tenants

Local authorities are expected to make tenantsaware of the process of HMO licensing and thestandards to be expected, and offer a contactpoint to raise any concerns. Tenants in HMOs

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often have little awareness of their rights and lowexpectations of standards, and they may bereluctant to express any concerns for fear ofharassment or eviction. For this reason it is notappropriate to meet with tenants and thelandlord at the same time. Experience hasshown that trying to contact tenants in person atthe HMO is rarely successful, and sendingletters addressed to each tenant is better thansimply leaving leaflets at the property. Inaddition, a passive approach usually elicits fewresponses from tenants dissatisfied with theaccommodation or management. A moreeffective strategy may be to ask tenants to returna questionnaire asking about key tenancymanagement issues. If any problems areidentified through this process, they must beaddressed with the landlord, but steps shouldbe taken to ensure that the landlord does notattach any blame to individual tenants.

All contacts with tenants must take account ofpossible barriers to communication such as firstlanguages other than English, learningdisabilities or literacy problems. Licensingauthorities might wish to consider working inpartnership with equalities and adult literacygroups in their area, who may be able to helpboth in providing suitable materials orinterpreting and advocacy services, and ingetting information about HMO licensing to theirusers, members or communities.

If tenants express any concerns which requirefurther investigation, they should be invited todiscuss them. This discussion should normallybe conducted by someone with an awareness ofhousing issues and the skills to deal with a clientwho may be distressed or nervous. It is usuallybest to conduct such discussions away from theHMO. Procedures should also be in place to refertenants to other sources of advice if they raise

issues which are not directly connected withlicensing, such as debt or mental health problems.If the tenant complains of criminal behaviour,either in connection with the management of theHMO or by residents or visitors to the property,they should be encouraged and supported toreport that to the police.

2-2.3 VERIFICATION USING LICENSEE’SDECLARATION

While direct inspection may be considered themost reliable method of verification, it is timeconsuming, both for the licensing authority andfor the property owner or manager. Where aproperty has been shown to meet the standardsinitially, and there is no reason to think thosestandards have not been maintained, it may notbe necessary to carry out a full inspection whenthe licence comes up for renewal. The followingparagraphs outline how licensees’ declarationscould be more widely used, enabling officers tospend more time enforcing the licensing systemand targeting properties which have beenidentified as not meeting the required standards.

In considering the suggestions made here,licensing authorities should keep in mind theirduty to use their discretion in a reasonablemanner, and to determine each application onits own merits, making further inquiries as theythink fit. In the general terms set out here, it isfelt that a licensee’s declaration scheme canmeet the requirements of the legislation, but it isfor each authority to determine that its owndetailed procedures and policies are appropriate.

The decision to verify compliance using alicensee’s declaration

The purpose of licensing is to ensure that allHMOs provide a determined standard ofaccommodation and management. The risk to


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the licensing authority in accepting a licensee’sdeclaration as evidence of compliance, is thatthe declaration may be false or mistaken, and aproperty which does not meet those standardsmay therefore be licensed. That risk has to bebalanced against the likelihood of landlordscontinuing to operate without a licence, or tobreach the conditions of their licence, if theauthority does not take steps to release staffcapacity for enforcement activities.

It is important to note that the licensee isresponsible for complying with the conditions ofthe licence, and for the content of anydeclaration to the licensing authority that theyare doing so. It is an offence to make a falsestatement in an application for a licence orrenewal, or to fail to comply with a condition of alicence. The issue for the licensing authority toconsider, therefore, is whether they can bereasonably confident that a licensee’sdeclaration will be accurate. The scheme shouldprovide appropriate procedures for the authorityto satisfy itself of this, supported by systems formonitoring.

When might a licensee’s declaration beaccepted?

When the first application is made for an HMOlicence for a particular property, directinspection will normally be required, incombination with relevant evidence from thirdparties, for officers to be satisfied thatappropriate physical standards for that propertyare met. Issues of possible nuisance toneighbours and appropriate preventivemeasures also need to be considered directly inrelation to the location and characteristics ofeach property. It would therefore not normally beappropriate to accept a licensee’s declaration as

the only evidence of compliance at firstapplication.

Once an initial licence has been granted, theissue is one of maintaining standards andoperating in accordance with the licenceconditions. This includes:

• maintenance of the property and fittings;

• periodic testing of equipment to ensure fire,gas and electrical safety;

• operating good tenancy managementpractices;

• dealing with any complaints from tenants orneighbours.

Since these are continuing activities, the localauthority would normally need to have evidenceof a track record of compliance before it wouldaccept the licensee’s declaration without furtherverification.

Local authority practices vary in terms of howoften compliance must be checked, either forrenewal of the licence or through interimre-inspections during the period of the licence,and the length of the required track record willvary accordingly. The box overleaf provides asuggested programme for qualification whichcould be applied over any timescale, whether“occasions for verification” occur at one-year,18-month or three-year intervals. Licensingauthorities which normally issue all licences forone year might also consider issuing three-yearlicences to landlords with a good track record,with interim inspections as required. Byreducing the frequency of the formal applicationprocess, with the associated paperwork andhearings, this could be seen by landlords as asignificant reward.

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This programme is, of course, only a model. Itcan be adjusted for individual circumstances, orauthorities may take a different approach if theyprefer. While many requirements are specific toeach property, others, particularly in terms oftenancy management, relate to the landlord’sattitudes and procedures. If the landlord is wellknown to the local authority, holding licences forother properties, it might be possible for his

declaration on these points to be accepted atStage 1. An example might be a declaration thathe is using the same form of tenancyagreement, which has already been approved bythe authority for other properties.

In some cases, a property may be consideredacceptable, but not fully meeting the localauthority’s preferred standards. In these cases,particularly where a landlord has a large portfolioof property which needs some upgrading, alicence may be granted on condition that anagreed programme of works is carried out, overa number of years, to bring the properties up tostandard. In such circumstances, approval touse a licensee’s declaration need not be delayeduntil the works are completed to meet the fullstandard. The licensee would simply confirm inhis declaration that work is progressing in linewith the agreed plan.

What form would a licensee’s declaration take?

A licensee’s declaration is a form of evidencethat the conditions of a licence are beingcomplied with. It must therefore be based on astatement of the relevant requirements, such asthe number of occupants permitted, the facilitiesand fire precautions required, and the keytenancy management issues. One approachcould be for the licensing authority to providethe licensee with a questionnaire, askingwhether each condition of the licence for thatproperty is complied with and the relevantstandards met. There should be space for thelicensee to explain, if any of the conditions arenot met, what he is doing or has done to rectifythe situation, and a legal declaration at the endthat the information given is correct to the bestof his knowledge. An example questionnaire isprovided at Annex B. Alternatively, the licensingauthority may prefer to rely on a simplestatement that the required standards have beenmet and no alterations have occurred since thelast grant of licence.


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Suggested programme to qualify to use licensee’s declaration

Stage 1 – Initial licence application Allstandards verified by a combinationof direct inspection and third partyevidence. (Some relaxation possiblefor existing licensees – see below.)

Stage 2 – First occasion for verification(renewal or interim inspection).Licensee submits declaration andthird party evidence, which may bechecked by direct inspection.Management standards are alsoassessed.

Stage 3 – Subsequent occasion forverification. Assuming declarationat stage 2 was found to beaccurate, licensee’s declaration isaccepted by licensing authority.Otherwise, repeat stage 2.

Stage 4 – Monitoring Properties qualified toverify by declaration are checkedby direct inspection, on a periodicsampling basis.

Stage 2 may be omitted if the licensingauthority is confident, on the basis of otherevidence or previous experience of thelicensee, that their declaration can be reliedupon.

It is not expected that the licensee will requireany particular training or technical expertise inorder to complete a declaration. The licensingauthority sets the standards to be maintained,which may for example include prohibiting theuse of an internal room for sleeping, requiringfire doors to be upgraded, or a tenancyagreement to be altered. The licensee needsonly to confirm that nothing has changed: theinternal room is still kept as a storage cupboard,the approved doors have not been damaged orchanged, the same tenancy agreement is beingused. For equipment which requiresmaintenance by a qualified person, such as afire detection system or gas appliance, the third-party evidence that maintenance or inspectionhas been carried out at the required intervalsshould be attached to the declaration.

The holder of the licence is the owner of theproperty. Although any manager will also benamed on the licence, the owner is ultimatelyresponsible for compliance with the licenceconditions, and should normally sign thelicensee’s declaration. However, in public sectorHMOs it is often the case that the property isleased, for example by a housing supportprovider from a Registered Social Landlord orthe local authority. Tenancy or occupancyagreements are with the operating organisationrather than with the owner. In these cases it maybe more appropriate for the operatingorganisation to submit the declaration, with theowner’s agreement. If the owner / operator is notan individual, a proper officer of the organisationmust sign the declaration.

Complaints and objections

However the licensing authority obtains evidenceabout compliance with licensing conditions andrelevant standards, it does not affect therequirement on the licensing authority toentertain objections to any application forrenewal of a licence, and its right to make such

reasonable inquiries as it thinks fit in responseto such objections. If, as a result of suchinquiries, a licensee’s declaration is found to beinaccurate, it is not necessarily the case that thelicence should not be renewed. The licensingauthority should consider all the circumstances,whether there was any intentional deception,and whether any breach of licensing conditionsis sufficiently severe to warrant loss of thelicence. However, it is likely that the licenseewould have to repeat the programme to qualifyto use the licensee’s declaration. The licensingauthority might also set a period during whichcompliance must be verified by directinspection, before the qualification programmecan start again.

Receipt of a complaint relating to a propertywhere the licensee’s declaration is used wouldnot necessarily trigger a return to directinspection. The licensing authority shouldconsider all the circumstances, including thenature of the complaint and the landlord’sresponse. It may be necessary to visit thepremises to check that the issue has been dealtwith, but if the landlord has responded promptlyand effectively, his qualification to use thelicensee’s declaration should not be affected. Arecord of repeated complaints may indicatemore serious problems, which the licensingauthority would wish to consider more closely.

Who could qualify to use licensee’s declaration?

In considering who should be allowed to provideevidence of their compliance with licensingrequirements by declaration, the key issue isthat the licensing authority must be reasonablyconfident that the licensee’s declaration will beaccurate. Any type of landlord could be includedin the scheme, once they have established thenecessary track record. However, in its initialstages at least, licensing authorities are likely tobe more comfortable with accepting adeclaration from a landlord who is subject to

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Supporting People service review and HMOlicensing overlap.) It is for each authority todetermine whether they are willing to accept alicensee’s declaration from any private sectorlandlords. In any case, each property must betreated on its individual merits, and the landlordmust establish a track record in order to qualify.

Landlords, Universities and Colleges and NHSbodies. Registration with the Care Commissionwill also provide some reassurance thatmanagement structures and procedures havebeen inspected. (A project is under way toexamine where the requirements ofCommunities Scotland, the Care Commission,


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2-3: IDENTIFICATION, ENFORCEMENT AND COMPLAINTS

2-3.1 IDENTIFYING HMOS

It is a criminal offence to operate an HMOwithout a licence, and the responsibilitytherefore lies with the landlord to inform himselfof the legislation and apply for a licence beforethe HMO is occupied. However, there is clearlyan expectation, from Ministers, licensedlandlords and local communities, that licensingauthorities will take more active steps topublicise the licensing scheme and try to ensurethat all HMOs become licensed. A wide range ofmethods and sources of information can beused. The most appropriate techniques willdepend on the character of the local authorityarea and the types of HMOs found there.Licensing officers are encouraged to share theirexperiences with those from other authoritieswho face similar issues.

• Most landlords will be happy to comply withthe law when they know about it. Advertisingthe scheme and making sure that informationis readily available from relevant informationpoints is a primary way of reaching thisgroup. Active engagement with landlordsgroups or forums can also be helpful.

• Identifying individual HMOs is more difficult.Door-to-door surveys may be useful in urbanareas, but they require a high level ofresourcing. Various written sources may beavailable, including local advertising of roomsfor rent. In using official records, licensingauthorities must ensure that they comply withdata protection and human rights legislation.

• One of the best sources of information, if thelandlord does not come forward, is peoplewho live in and around or visit HMOs. Enquiriesfrom current or prospective tenants, complaintsfrom neighbours and intelligence from otherdepartments or partner agencies who visitthe property in the course of their activitiescan all be harnessed to build up a databaseof possible HMOs for further investigation.

2-3.2 ENFORCEMENT ACTION

In most cases where an unlicensed HMO isidentified, the appropriate action will be for thelicensing authority to contact the owner, informthem of the licensing requirement and requestthat they submit a licence application within aset period of time. However, there will inevitablybe some landlords who do not respond to suchapproaches, and against whom enforcementaction must be taken. There will also be somewho apply for a licence but are refused. Thesecases must be monitored to ensure the propertydoes not continue to operate without a licence.

A landlord who is unwilling or unable to obtain alicence may agree to cease operating thepremises as an HMO. However, it may not bepossible to do this immediately, because of theterms of tenancy agreements, either statutory orcontractual. It is considered likely that this couldbe seen as a reasonable excuse for operatingwithout a licence for a time, provided that thelandlord takes steps to bring about the terminationof the tenancies as soon as possible. The localauthority might consider working with thelandlord to agree low-cost temporary measuresto improve conditions in the property in themeantime. For example, battery-operated smokealarms could be fitted, or an agreed type ofportable heater provided in the absence of safe,fixed, space heaters.

The ultimate sanction in the licensing scheme isprosecution. Licensing officers should take care,in carrying out inspections or investigations intosuspected unlicensed HMOs, that any evidenceis collected in such a way that it could beadmissible in court, if necessary. It may behelpful for officers to meet with the ProcuratorFiscal to discuss what he or she would look forin preparing a case. Reports to the ProcuratorFiscal – a Guide for Specialist Reporting Agencies(sixth edition, 2004) provides guidance on allthe information to be included in reports to the

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2-3: IDENTIFICATION, ENFORCEMENT AND COMPLAINTS

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Procurator Fiscal. Authorities should also have anote of the relevant charge codes and wordingfor the relevant offences.

Prosecution can be a lengthy process, andtenants should not be subject to dangerous orunfit conditions in the meantime. If necessary,licensing authorities should consider using otherpowers, or asking the fire authority to use theirpowers, under housing, environmental health orfire safety legislation, to require improvements tobe made or to close the property fromoccupation.

2-3.3 DEALING WITH COMPLAINTS

The licensing authority is likely to receivecomplaints about HMOs or suspected HMOs fora number of reasons. Tenants may makecomplaints about the condition of the propertyor the actions of the landlord. Neighbours maybe concerned about the number of people in theproperty and their living conditions, or aboutnoise and disturbance or anti-social behaviourattributed to the residents of the HMO or peoplevisiting the property. In tenement situations, inparticular, neighbours may also makecomplaints about maintenance or cleaning ofcommon areas.

Licensing authorities should keep a record ofcomplaints, and investigate where this isconsidered appropriate. Complaints may bring tolight HMOs which the authority was notpreviously aware of. They may also lead to thediscovery of breaches of licensing conditions.Where complaints are made about the behaviour

of residents or visitors, officers should take stepsto check that those people are indeedresponsible for the problem, before contactingthe landlord to ask him to take action.

In dealing with complaints about the behaviourof HMO residents, the local authority shouldkeep in mind the need for the landlord to workthrough due process before tenants can berequired to leave. Landlords should manage theproperty so as to ensure that tenants complywith the terms of their lease and do not interferewith the rights of neighbours to enjoy peacefuloccupation of their homes. However, anyone canfind themselves with a difficult tenant. Thelicensing authority should take account of howthe landlord responds to complaints, as well asthe complaint itself.

Serious complaints about an HMO may leaddirectly to enforcement action against thelandlord. Alternatively, a record of more minorcomplaints about a particular HMO may have aneffect on the licensing authority’s decision whenan application for renewal of the licence issubmitted. It may be helpful to establish liaisonarrangements with the police, and with officerscarrying out the local authority’s functions inrelation to anti-social behaviour, since somecomplaints about HMOs may be made to them.Similarly, some complaints made to HMOlicensing officers may be more appropriatelydealt with by anti-social behaviour teams orpolice. Access to a full picture of complaintsrelating to the same property will provide afirmer basis for action by either agency.

2-4: FEES

The HMO legislation requires that the feescharged in relation to HMO licences, takentogether with any grants for HMO licensingprovided by Scottish Ministers, should cover thecosts of all the activities required to carry outthis function. Local authorities vary greatly in thenumber and type of HMOs in their area, and inhow they arrange their licensing procedures,and this means it is not possible to giveguidance on the level of fees to be charged.However, in setting their fees, licensingauthorities should take into account the followingactivities: (Some authorities may not carry out allthese stages.)

• Identification and awareness

– Identifying possible HMOs

– Issuing information about licensing

– Answering enquiries about licensing andlicensed properties

– Printing of publicity leaflets

– Enforcement activity leading toapplications, including out of hoursenforcement work

– Officers presentations to interested groups,attendance at public meetings, etc.

– Setting up and servicing regular liaisonmeetings with landlords, tenants, localresidents, etc.

• Internal co-ordination groups –Member/Officer and Technical

• Processing applications and monitoring

– Issuing licence application packs

– Initial inspection of property to setstandards, local authority and fire officers

– Notification of licence applications in localnewspapers

– Circulation of applications to Councillorsand local libraries

– Input from Planning department

– Scrutiny of lease, contact with tenants toensure terms of lease are complied with

– Subsequent inspection to ensurestandards are met, before licence isgranted

– Dealing with objections to licenceapplications

– Preparation of reports for licensingcommittee

– Committee time

– Dealing with appeals against licencedecisions

– Preparation and delivery of licences

• Monitoring and renewal

– Handling complaints about licensedproperties

– Interim inspection during period of licence

– Maintaining records / public register oflicence applications

• Enforcement

– Gathering evidence about unlicensedproperties

– Preparing reports for Procurator Fiscal

– Attendance at court

It is suggested that licensing authorities makeavailable to the public information on theactivities covered by the licensing fee, to makeclear all the activities which are involved inoperating the system. It may also be helpful tomake clear any charges made by the fireauthority, if these are rolled up in the overalllicence fee.

Local authorities take different approaches tostructuring their fee levels. Some charge a flatfee, others use a sliding scale based on thenumber of occupants of the HMO. Some chargea lower fee for renewals; in other authorities,renewal licences are awarded for a longer periodthan initial licences, which can have an effect on

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2-4: FEES

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the fee. Various discounts or methods ofcalculating fees are applied to landlords withlarge portfolios of property, such as Universitiesand colleges, particularly where the units are toa common design.

It is recommended that licensing authoritiesshould consider a structure in which lower feesare charged for applications which require less

work on the part of the authority. This wouldinclude those where the licensee is permitted toverify his compliance by declaration. Otherrenewals may also need less time spent oninspection than initial applications. Similarly,blocks of identical units and portfolios ofproperty managed together are likely to bringeconomies of scale, and may be considered fordiscount arrangements.

2-5: CO-ORDINATION WITH OTHER REGULATION

HMO licensing applies to all properties whichare the only or main residence of three or moreunrelated people. This covers a wide range ofcircumstances, from a three-person shared flatto a 100-room hall of residence, hotel staffaccommodation to very sheltered housing,Victorian tenements to new, purpose-built grouphomes. HMO operators are therefore involved ina range of activities which are subject to otherregulatory regimes, in addition to HMO licensing.

Some of these other forms of regulation areclearly separate from the business of providingaccommodation. For example, where meals areprovided by staff, the operator must comply withrequirements in respect of food safety, health andsafety at work and employment law, but none ofthese affect the landlord-tenant relationship orthe quality of tenants’ accommodation. Thereare, however, a few forms of regulation whichinteract directly with HMO licensing. If these arenot carefully handled, applicants and objectorsmay see them as duplicating the same controls,possibly with inconsistent results.

It is important to be clear that differentregulatory regimes control different aspects ofthe activity, that each of them must beseparately complied with, and that enforcementaction can be taken if any one requirement isnot met. It is helpful if HMO officers have ageneral understanding of the other forms ofregulation which may be involved, so that theycan advise an applicant to check these things.However, it is the individual’s responsibility toensure that they comply with the law in allrespects, and that they do not start operatinguntil all the necessary permissions, warrants orcertificates are in place.

2-5.1 FIRE SAFETY

The fire authority is a statutory consultee for alllicensing activities carried on in premises, underthe Civic Government (Scotland) Act 1982, andfire officers are involved in checking that each

HMO meets the required standards in terms offire safety. However, the fire authority also hasresponsibility for the enforcement of fire safetyrequirements under a variety of other legislationapplying to workplaces, hotels and premiseslicensed for other activities, including the sale ofalcohol. If the HMO also falls into one of thesecategories, more stringent fire precautions maybe required for that other use than would be thecase for an unstaffed, purely domestic HMO.

The Scottish Parliament is currently consideringthe Fire (Scotland) Bill, introduced on 28 June2004. This will, if passed, give fire authorities anew statutory responsibility for fire preventionand fire safety, and reform the current fireprecautions legislation. This would consolidateall current responsibilities in the hands of thefire authorities and fire brigades. The fireauthority would have an independentresponsibility for enforcing fire safety issues inHMOs, separate from the licensing regime. It isto be hoped that the two regimes will continue tobe closely co-ordinated, in order to offer anefficient service to HMO operators. However,licensing authorities will need to consider whatchanges to their procedures may be required,when the Bill comes into effect.

2-5.2 BUILDING REGULATIONS

See under 3-3.

2-5.3 SOCIAL HOUSING

Some HMOs are operated by local authorities orRegistered Social Landlords (RSLs), both ofwhich have their landlord functions regulated byCommunities Scotland. However, they are stillsubject to HMO licensing. Regulation byCommunities Scotland deals with theorganisation as a whole, and focuses mainly ongovernance, management planning andprocedures, to assess the overall quality ofservices provided. In particular, it does notinspect the physical standards of individualproperties.

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Licensing authorities should, therefore, satisfythemselves as to the physical standards ofHMOs operated by local authorities and RSLs asthey would for any other landlord. The samelicensing conditions in respect of tenancymanagement should also be applied, although itmay be that less stringent checks are requiredon some aspects for a regulated organisation, forexample in the proper handling of rent monies.

It is not necessary for the licensing authority tocheck the content of the tenancy or occupancyagreements issued by a local authority or RSL.Where a full tenancy is granted by a sociallandlord, this must by law be a Scottish SecureTenancy or Short Scottish Secure Tenancy.Where these are not appropriate (as is usuallythe case with HMOs), they are expected to usethe Model Occupancy Agreement for SharedHousing produced by the Scottish Federation ofHousing Associations, the content of which isapproved by Communities Scotland. Whereaccommodation is provided for a period of lessthan six months, it will be subject to theproposed minimum rights for hostel dwellers,when these come into force.

Communities Scotland has a network of AreaOffices. Should HMO officers come across issueswhich they feel should be raised with theregulator, they should contact the local areaoffice in the first instance. A list of contact detailsis available on Communities Scotland’s websiteat http://www.communitiesscotland.gov.uk/Web/Site/Contact/Area_Offices.asp

2-5.4 SCOTTISH COMMISSION FOR THEREGULATION OF CARE (THE CARECOMMISSION)

The Care Commission is the regulator for careand support services across the whole ofScotland. It was established by the Regulation ofCare (Scotland) Act 2001, and took over theregistration and inspection of care services fromlocal authority social work departments and

health boards. Services are categorisedaccording to their function and purpose, and areassessed in relation to National Care Standardsfor each category.

Accommodation is exempt from HMO licensingwhen it is provided as part of any one of fourcategories of service:

• Care home services

• Independent health care services

• School care accommodation services

• Secure accommodation services.

These types of service are inevitably provided indedicated accommodation, and the NationalCare Standards include physical standards forthe accommodation and requirements as toservice providers’ rights and responsibilitieswhile occupying that accommodation. Fireauthorities are involved in the inspection of theaccommodation and will report back to the CareCommission on their findings.

Other categories of care or support services arenot necessarily provided in dedicatedaccommodation. In these cases the CareCommission regulates the service, and thestandards of accommodation and tenancymanagement are, where appropriate, controlledby HMO licensing. The most common exampleis a Housing Support Service, which might beprovided to people leaving institutional care orwho have been homeless, to help them developthe skills to manage their own home. They mightstart in hostel-type accommodation, move to ahouse shared with three or four other people,including support workers, and finally move to ahome on their own, where support workerscontinue to visit for as long as necessary. This isa process in which the individual may have thesame support worker throughout, but movesfrom dedicated HMO accommodation, to non-specialist HMO accommodation, to amainstream, singly occupied house.

The arrangements for exemption are intended toensure that there is no conflict between therequirements of the Care Commission and therequirements of HMO licensing. However, theCare Commission may raise issues with thesupport provider about, for example, theappropriateness of the accommodation orequipment in place, for the provision of thesupport service. The licensing authority wouldnot normally be party to such comments, unlessthey are mentioned by the licence holder.

If licensing officers have any queries or concernsabout HMO operators who are also providingcare or support, they should contact the CareCommission’s local office and ask for the persondealing with housing support services. A list ofcontact details is available on the Commission’swebsite at http://www.carecommission.co.uk/CareComm.Web/contact.aspx

2-5.5 LOCAL AUTHORITY SOCIAL CARE ANDHOMELESSNESS SERVICES

Care and support services are regulated by theCare Commission, but they are often fundedthrough contracts with local authorities, under arange of programmes which include social workservices, Supporting People and services forhomeless people. Licensing officers should workwith colleagues to ensure that all non-exemptHMOs used by these services are licensed.

2-5.6 PLANNING

The planning system guides the futuredevelopment and use of land in cities, townsand rural areas in the long term public interest.The aim is to ensure that development andchanges in land use occur in suitable locationsand are sustainable1. Most people are aware ofthe need to obtain planning permission for newbuildings, but the issue in relation to HMOs is

usually change of use of existing buildings,which is perhaps less well understood.

Planning permission will be required if there hasbeen, or is proposed to be, a change of usewhich, based on the circumstances of the case,constitutes “development” within the meaning ofthe Town and Country Planning (Scotland) Act1997 ( the 1997 Act). If the present use of theproperty is a lawful use, e.g. it has been used forthat purpose for more than a period defined instatute (currently 10 years), then such usewould be immune from enforcement action.

Planning law provides that certain changes ofuse do not constitute development within themeaning of the 1997 Act. The Town andCountry Planning (Use Classes) (Scotland) Order1997 (the Use Classes Order)2 groups certainuses or types of uses into classes and providesthat changes of use within a class are not“development”, and therefore do not requireplanning permission. HMOs may fall into one ofthree classes – Class 7, Hotels and Hostels,Class 8, Residential institutions, or Class 9,Houses – or may fall outwith all these classes.Changes of use between classes aredevelopment for planning purposes and willtherefore require planning permission.

Class 9, Houses, includes, among others,houses occupied by a single person, peopleliving together as a family and up to 5 peopleliving together, including a household wherecare is provided for residents. If the occupationof a house changed from family use to an HMOwith no more than 5 occupants, there wouldtherefore be no requirement to obtain planningpermission for a change of use on that groundalone. However, a change from a family home,however large the family, to a house with more

1Extract from Scottish Planning Policy 1: The PlanningSystem.

2Further guidance on the Use Classes Order is containedin Scottish Executive Development Department Circular1/1998.

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than 5 occupants who do not form a family, mayrepresent a change of use constitutingdevelopment, depending on the circumstancesof the case. Where development was involved,and the multiple occupation was not a “lawfuluse”, planning permission would be required.

Flats are outwith Class 9 and considerationwould need to be given as to whether anyincrease in the number of occupants of a flatwould constitute development for the purposesof the 1997 Act and therefore require planningpermission.

Article 4 of the Use Classes Order provides thatsub-division of a house to form 2 or moreseparate houses constitutes developmentrequiring planning permission.

HMO licensing and planning policies

Scottish Planning Policy 1: The PlanningSystem, states that the planning system shouldnot be used to secure objectives that are moreproperly achieved under other legislation.However, even where legal or administrativemeasures outwith the planning system may existfor controlling a particular issue, it can still be aconsideration to which weight is given inreaching a planning decision. The courts havealso upheld planning powers being usedalongside other controls, such as liquorlicensing, where there is a demonstrableplanning justification.

The 1997 Act requires that planning decisionsbe taken in accordance with the developmentplan (the collective term for the structure planand local plan covering an area) unless materialconsiderations indicate otherwise. The purposeof the development plan is to guide the futuredevelopment of an area and provide policiescovering key land uses including the location ofhousing. In forming development plan policies

for HMOs, planning authorities should take intoaccount the extent to which the HMO licensingregime can control issues which touch uponplanning objectives.

Some local authorities have local plan policieswhich seek to control the proportion of HMOs inparticular areas. There are, clearly, some issuesaffecting residential amenity which arise simplyfrom the increased number of adults living in anarea due to the presence of an HMO. Adequateparking and refuse storage are examples ofissues which will always be relevant inconsidering planning applications. However,where the issues relate to the behaviour of thelandlord or tenants, such as maintenance ornoise, planners should take account of thecontrols offered by HMO licensing. They shouldalso be clear that all kinds of people may live inHMO accommodation, and it is not necessarilythe case that HMO residents would cause moredisturbance than other types of household whomight occupy the property. Local authorities maywish to review their planning policies on HMOsin light of the full coverage, now, of mandatoryHMO licensing, and the importance of HMOs asa supply of housing in some areas and for somegroups of people. In light of the controlsavailable and the many different types of HMO,it may not be appropriate to impose a blanketban or purely numerical restrictions on HMOs inany particular area.

Co-ordinated administration of planning andlicensing

The preceding paragraphs show that not everyHMO requires planning permission. Even whereplanning permission may be required, it is notappropriate to link this with HMO licensing byrefusing to grant a licence until planningpermission has been obtained. As stated above,these are separate regulatory regimes with

different purposes, each of which has its ownenforcement powers to deal with any breach.(This replaces the advice in the 2000 guidance,which is accepted to have been mistaken.)

HMO officers should be aware of relevant localplanning policies. In cases where planningpermission may be required, they should adviseapplicants for HMO licences to contact theplanning department, and it may be helpful toestablish systems for sharing information withplanners. These arrangements should bereciprocal, since applications for planningpermission for a change of use may also identifyHMOs which require to be licensed.

Where both planning permission and an HMOlicence are required, it is important thatprocedures should be well co-ordinated and thefeatures of each system made clear to theapplicant. In many local authorities,enforcement of HMO licensing is more activethan planning enforcement, so that pressuremay be put on operators to apply for a licence toavoid legal proceedings, while planningpermission has not yet been secured. However,since planning deals with the balance ofdevelopment in an area, factors outwith the

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owner’s control may affect whether planningpermission is granted. Upgrading a property toHMO standards can be expensive, but, providedthere are no pre-existing complaints fromneighbours, it should be entirely within thecontrol of the owner to meet the conditions forlicensing. It is understandably frustrating for anoperator to spend considerable sums upgradinga property and obtaining an HMO licence, andthen to be refused planning permission tooperate. Local authorities should consider howthey can better ensure that in the operation oftheir powers and responsibilities under the twosystems and in the exercise of their enforcementpowers they can provide a consistent service.

Both planning and licensing applications includean opportunity for objections to be put to theauthority. Neighbours need clear informationsimilar to that provided to applicants, to explainthe two systems and what matters each cancontrol. This may help to avoid the situationwhere the same objections are made in respectof both applications, and to reduce thefrustration felt by objectors when theirarguments are rejected as not relating torelevant considerations under the system inquestion.

PART 3: STANDARDS AND LICENSING CONDITIONS

The licensing of HMOs seeks to controlstandards in three main areas: the suitability of aproperty owner to be an HMO landlord, hismanagement of the premises, and the physicalcondition and facilities of the accommodation.These things must be checked before a licenceis granted; the licence is then usually grantedwith conditions which require the standards tobe maintained through the period of the licence.

A licensing authority has discretion to set anyreasonable conditions it thinks fit. HMO licensingcovers a wide variety of different types of propertyand occupiers. While it is desirable to haveconsistency in the requirements for similar typesof HMO, it is also necessary to have flexibility inresponding to individual circumstances. Thesuggested conditions described below areintended to give a reasonable standard whichwould apply to most HMOs, but which can bevaried as necessary.

3.1: FIT AND PROPER PERSON

The licensing authority must be satisfied that theperson applying for an HMO licence is a “fit andproper person” to hold a licence. The same testapplies to any person managing the premises,and any director or partner in a company ororganisation which owns or manages the HMO.

The legislation does not give a precise definitionof a “fit and proper person”, but the licensingauthority should check with the police whetherthe applicant has any relevant convictions. Notall convictions would be relevant to a person’sprospective role as an operator of an HMO. Forexample, motoring offences would not berelevant, but a conviction for fraud or theft couldbe since the operator would be in a position oftrust. If the HMO operator is subject to any otherform of regulation, the licensing authority maywish to approach the relevant regulatoryauthority, such as the Care Commission or theenvironmental health service, for their comments.This would usually focus on the applicant’srecord of maintaining standards and theirresponse if concerns are raised. Ultimately it isfor the local authority to decide whether theapplicant is a “fit and proper person” based onall the information available to it.

The licensing authority is encouraged to shareinformation about the fitness of an applicant tobe an HMO operator with other local authorities,since operators may own HMOs in more thanone local authority area. In doing so, care mustbe taken to protect confidentiality and to ensurethat the terms of Data Protection and HumanRights legislation are observed.

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3-2: MANAGEMENT STANDARDS AND LICENSING CONDITIONS

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Good management by the landlord is vital if theaims of HMO licensing are to be achieved.Physical standards must be maintained, tenants’rights must be respected, and any problemswhich arise during the period of the licence mustbe effectively addressed. Good management isalso key to tackling the issues which most concernneighbours of HMOs, such as buildingmaintenance, cleaning, and noise or disturbance.For these reasons, licensing authorities areexpected to give equal weight to managementissues as to physical standards in decidingwhether to grant, renew or suspend a licence.

The landlord of a licensed HMO has two mainsets of obligations. One is to meet therequirements of licensing, which the localauthority has the responsibility to enforce. Theother set of obligations relates to the tenancy oroccupancy agreement between the landlord andthe tenant and the legal requirements governingtenancies and the provision of residentialaccommodation. Notes on different tenancy/occupancy arrangements are given at 3-2.2.The landlord may also have property obligationsto neighbouring owners in terms of title conditionsor property law. These would be for thoseneighbours to enforce.

All types of HMO should provide occupants withsome form of agreement setting out the rightsand responsibilities of both parties, even if theaccommodation is only temporary. Localauthorities should ensure that information andadvice is available to help landlords deal withthe situation if tenants do not fulfil their side ofthe occupancy/tenancy agreement, or causedisturbance to other tenants or neighbours.Good management based on a clear tenancy/occupancy agreement can be very effective intackling such problems at an early stage.

A number of initiatives are currently being takenforward by the Scottish Executive with the aim ofimproving standards of property and

management in the private rented sector moregenerally. Local authorities should have regard togood practice highlighted by those initiatives, butshould keep in mind the distinction betweenminimum requirements and enhancedstandards, such as those for voluntaryaccreditation of landlords. Licensing authoritiesmust also have regard to the different conditionsand standards that may be appropriate forpermanent, general housing, for temporary oremergency accommodation, and foraccommodation with care or support.

3-2.1 RECOMMENDED LICENSING CONDITIONS

The following key points are recommended asbasic licensing conditions to be included in allHMO licences (numbered “LC” – LicensingCondition). The wording given here is intendedto be applicable to all types of HMO. They aredrawn in terms of general principles becausebreach of any one condition may be a groundfor suspension of the licence. The licensingauthority may wish to be more specific or explicitin the conditions for individual licences but inmost cases it may be sufficient to make clear inguidance to the licence holder what is expectedin terms of law and good practice, and what inconsequence would be regarded as a breach ofthe condition and a ground for suspension.

subsequent paragraphs give further guidanceon the interpretation of these licensingconditions.

LC1 The landlord must provide each tenant witha clear statement, in a form they canunderstand and keep for reference, of whatis expected of them and what they canexpect from the landlord. The agreementmust include key elements. [These may belisted in a schedule]

LC2 The landlord must take steps to ensure that theproperty, fittings and furniture, including fireprecautions and gas and electrical

installations, are maintained throughout theperiod of the licence to the standard required.[Details may be listed in a schedule if required]

LC3 The landlord must act lawfully and reasonablyin requiring any advance payments,handling rents, returning deposits, andmaking deductions from deposits.

LC4 Actions to secure repossession must be onlyby lawful means.

LC5 The landlord must comply with all relevantlegislation affecting private sectorresidential tenancies, and all legislationrelating to other activities carried on in thepremises, such as the provision of care orsupport, or food preparation.

LC6 The landlord must manage the property insuch a way as to seek to prevent or dealeffectively with any anti-social behaviour bytenants to anyone else in the HMO or in thelocality of the HMO.

LC7 The landlord must provide tenants andadjoining neighbours with details of howthey can contact him or his agent in anemergency, or with non-urgent complaints.

LC8 The landlord must ensure that a telephoneline is available in an area of the propertyaccessible to all tenants, where the tenantscan provide a handset and arrange for thetelephone service to be provided.

LC9 Tenants must be given clear advice onaction to be taken in the event of anemergency.

Interpretation of conditions

The following sections set out legal requirementsand good practice relevant to each of therecommended conditions, to assist licensingauthorities to determine what should beincluded in specific conditions or in guidance tolandlords in relation to each licence.

Various legal requirements apply to differentforms of rented accommodation, setting outtenants’ and landlords’ rights and responsibilities.The operation of the licensing conditions will insome cases depend on the type of tenancy oroccupancy which exists.

• For most ordinary shared accommodation,with a tenancy of at least 6 months, anassured tenancy or short assured tenancywill probably apply. The main exclusions arewhere there is a resident landlord andaccommodation leased by a university orcollege to a student. Lettings by agovernment department, local authority orRSL cannot be assured or short assuredtenancies.

• In most other HMO accommodation, anoccupancy agreement is likely to be in placerather than a formal tenancy. Modeloccupancy agreements for sharedaccommodation have been produced by theScottish Federation of Housing Associations,and these will be used by local authoritiesand RSLs.

• The Scottish Executive is developingregulations on minimum rights for hosteldwellers and other short-termaccommodation, under section 7 of theHousing (Scotland) Act 2001.

LC1 – statement of rights and responsibilities

For an assured or short assured tenancy, thetenant must be provided with a written tenancyagreement. In most other situations, this is alsogood practice. However, for some clients, it maybe more appropriate to provide the agreement ina different format, or to go through it verballyand leave a copy which a relative or supportworker can help the client to refer back to ifnecessary. The tenancy agreement should alsobe made available in other languages ifappropriate. In most cases the agreementshould be provided before the tenant moves in.

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For emergency accommodation, it should beprovided as soon as is practicable afteradmission.

Recommended elements to be included in thetenancy/occupancy agreement are given insection 3-2.3.

LC2 – physical maintenance

The landlord will be responsible for maintainingthe structure of the house and fixtures andfittings for the supply and use of hot and coldwater, gas and electricity. He will also beresponsible for ensuring that other fixtures,furnishings and equipment provided by him forthe use of tenants are safe and fit for purpose.Specific legislation applies to gas appliances andsoft furnishings. The licensing authority maywish to attach a schedule detailing itsrequirements in terms of physical standards andhow these are to be maintained. Where theHMO is in a shared building, it may also wish toemphasise the shared responsibility of thelandlord for the maintenance of common parts,and of the tenants for their cleaning.

The tenant has a duty in common law to use thehouse in a proper manner, and take proper careto avoid any damage. The landlord may requirea tenant to repair, or pay for repair of, the property,furnishings or other items provided by the landlord,if the damage is caused by the tenant orsomeone visiting the tenant. The landlord isentitled to enter the house, or tenants’ rooms,after giving 24 hours notice, for the purpose ofinspecting the condition of the property.

Landlords do not have either a duty or a right toinspect electrical equipment belonging to thetenant. However, it would be reasonable tohighlight issues of electrical safety to tenants, interms of both maintenance of appliances andsafe use of extensions or adaptors, for example.Landlords could also ask the tenant to repair orstop using any particular equipment which

appeared to be unsafe. In hostel-typeaccommodation it may be appropriate for thelandlord to prohibit the use of any electricalequipment not provided by him.

LC3 – financial issues

Financial issues are, understandably, one of themost frequent causes of conflict betweentenants and landlords. The licensing authorityhas no role in considering the amount of rentcharged, but it has an interest in ensuring thatthe landlord follows good practice and actswithin the law in dealing with payments anddeposits. If a pattern of complaints emergesagainst a particular landlord, the licensingauthority may want to investigate in more detail.

In relation to an assured or short assuredtenancy, it is illegal for a landlord to require anypayment as a condition of granting the tenancy,to require rent to be paid before the start of therental period to which it relates, or to require adeposit of more than the equivalent of twomonths’ rent. Where rent is paid weekly, in anassured or short assured tenancy, the tenantmust be provided with a rent book and given areceipt for each weekly payment. All thesepoints are good practice for other types oftenancy or occupancy.

Where a deposit is required, the tenant shouldbe given a receipt for the deposit. It is bestpractice for the landlord to keep deposits in aseparate bank account. Possible reasons fordeducting any amount from the deposit shouldbe made clear when the deposit is paid, and ifany deduction is made before its return, thetenant should receive a written statementidentifying the reason(s) for the amountdeducted. Deposits should be returned as soonas possible after the tenant leaves.

LC4 – actions to secure repossession

In the great majority of cases tenants will leavethe property at the end of their lease. Indeed,

HMO tenants generally stay for relatively shortperiods of time in any one property. However, ifdifficulties arise, it is important that landlordsfollow the law in acting to remove a tenant.Where a formal tenancy exists, it is usuallynecessary for the landlord to obtain a courtorder requiring the tenant to leave. Foroccupancy agreements, particularly where thereis a resident landlord and in hostelaccommodation, other arrangements will apply,but the landlord must always follow theprocedure set out in the occupancy agreement.It is in all cases illegal to use any form ofharassment to try to make an occupant leave.

LC5 – compliance with legislation

This condition simply requires that the landlorddoes not break the law in any of his operations inrelation to the licensed property. The issuesaffecting private sector residential tenancies aremostly set out in this guidance under otherconditions, relating to security of tenure, repair,safety and so on. Regulation of the landlord’s otheractivities are not directly the concern of HMOlicensing, but failure to comply with the law oraddress any areas of concern in these areas mayhave an effect on whether he is considered a fitperson to hold a licence. The licensing authoritymay wish to consult relevant regulatory authoritiesfor their comments, as set out in section 3-1.

LC6 – preventing or dealing with anti-socialbehaviour

As part of a landlord’s tenancy managementduties he must ensure as far as he is able thattenants conduct themselves in a way that doesnot cause nuisance or distress to any otherperson in the HMO or in the locality of the HMO.This should be made clear to tenants as part ofthe tenancy/occupancy agreement, and if acomplaint is made to the landlord, he shouldtake steps to deal with it. The local authority canhelp by engaging with landlords and providinginformation and advice on good management

practice. If a complaint is made to the localauthority by a neighbour of an HMO, theauthority should investigate and, if appropriate,request that the landlord take action. In decidingwhether action is required, the authority shouldconsider whether the behaviour complained ofwould be unacceptable in any other, non-HMOhousehold. Any approach to the landlord mustbe based on clear evidence that tenants of thatparticular property were responsible for thebehaviour complained of.

The actions open to a private sector landlord forthe better management of antisocial behaviourinclude, for example, enforcing terms in thetenancy agreement, setting clear standards,advising tenants (for example on reducing noisenuisance), investigating complaints, requestingthe local authority to initiate an Anti-socialBehaviour Order (ASBO), providing informationin support of ASBO proceedings, seeking aninterdict, seeking possession at the end of theterm of the tenancy or seeking possession onthe grounds of anti-social behaviour.

LC7 – contact details

Complaints about rented housing, both HMOand others, often focus on the fact that thelandlord cannot be identified or contacted whenthere is a problem. Clearly tenants should havedetails about how to contact the landlord, bothin routine circumstances and in case ofemergency. This information may be provided ina tenant’s handbook or information pack, or maybe displayed within the property.

The need for neighbours to contact the landlordmay relate to tenants’ behaviour, but mayequally relate to physical issues such as waterdamage to a flat below, or a need to arrangecommon repairs. Most landlords are happy todeal with problems when they are made awareof them, so if they can be contacted at an earlystage, minor difficulties are less likely to becomea source of ongoing conflict.

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It is suggested that landlords should be requiredto provide contact details to their immediateneighbours on all sides. In a flat, they shouldinclude all owners and occupiers in the sameblock, plus those immediately adjoining the HMOproperty in next-door blocks. Problems either ofnoise or of disrepair are less likely to affectneighbours in separate buildings, so localauthorities should consider the requirements fordetached or semi-detached properties on a case-by-case basis, remembering that landlords cannotbe expected to control their tenants’ behaviourexcept in the immediate vicinity of the house.Landlords may wish to use an agent to deal withurgent calls, and may wish to provide separatedetails for emergency access and for non-urgentissues.

Women’s refuges and other landlords catering forclient groups for whom security and anonymity isimportant may not wish to identify themselves toneighbours. They should not be exempt from therequirement to provide contact details, but thosedetails need not state the purpose of theaccommodation or identify the organisationoperating it. An agent may be used, or otherarrangements may be made, to ensure that theoperator can be alerted to any problems orcomplaints. If staff are present at all times, thecontact details need only note that and askneighbours to contact the staff on duty.

LC8 – telephone access

Tenants should have a way of contactingemergency services from within the house. In thepast it was recommended that a telephone shouldbe provided by the landlord. However, manytenants now use mobile phones and do not wishto pay for the provision of a landline. The newrecommendation is therefore that the landlordshould ensure a telephone line is connected to theproperty, so that tenants can arrange for a serviceand handset to be provided if they wish. This isappropriate for small, domestic HMOs. In larger

properties, where residents are less likely toagree such arrangements together, it may still beappropriate for the landlord to provide atelephone in a communal area. Where staff areon hand at all times, they will be responsible forcontacting emergency services if necessary, anda telephone for tenants is not required.

LC9 – action in the event of an emergency

In the event of an emergency, such as a fire, gasleak or injury, it is important that tenants knowwhat to do and who to contact. The landlordshould provide this information, either with thetenancy agreement or, for hostels and similartypes of HMO, permanently and prominentlydisplayed within the property. The informationshould include, where appropriate, the landlord’semergency contact details and instructions onaction to take in the event of a fire. In staffedaccommodation it should state how to informstaff of an emergency. In unstaffedaccommodation the information should alsocover safety information such as the safe use ofgas appliances, regular checking of smokealarms, not tampering with fire doors, and so on.

3-2.2 TENANCY/OCCUPANCY AGREEMENTS

Individual and joint tenancies

In most HMO situations, the occupants do notknow one another before they move in, and theymove in and move out at different times. Inorder to be clear what each person isresponsible for, particularly in terms of rent andany payments due for damage or bills, it is bestpractice for each of them to have a separatetenancy or occupancy agreement, which alsospecifies the parts of the accommodation whichthey have an exclusive right to occupy and theparts which they share with others.

Some landlords grant tenancies in an HMO on a“joint and several” basis, in which all the tenantsare jointly responsible for the rent and otherliabilities, but if any of them defaults, the others are

required to cover that debt. Such arrangementsshould be carefully scrutinised by licensingauthorities to ensure that tenants are fully aware oftheir liabilities before accepting the tenancy.

Re-letting, sub-letting and visitors

In some shared flats and houses, the landlordmay require the remaining tenants to find a newtenant when someone leaves, or they may setup the tenancy so that one person is theprincipal tenant and the others sub-let fromthem. In any such case, there should be anagreement in writing which clearly sets out thetenants’ responsibilities and liabilities for suchthings as advertising costs, taking up referencesand arranging for the payment of rent. If thelandlord takes on the task of finding newtenants, he should give the existing tenants atleast 24 hours notice of a new tenant movingin.

Landlords should take steps to ensure they areaware of who is staying in their property on aninformal basis. A person who may be considereda long-term visitor by the tenant could be definedas an additional resident by the licensingauthority. Different types of HMO will have verydifferent arrangements for informing the landlord(see TE6). In supported accommodation, theremay be very strict rules about non-residentsbeing brought into the premises, for securityreasons. In a shared flat, the landlord maysimply wish to be informed of any visitors stayingfor longer than a specified period.

Tenancies and leases

Some HMO buildings, particularly where someform of care or support is provided, are ownedby one person or organisation and leased byanother, which operates the day-to-daymanagement and lets the accommodation toindividuals. This is most often the case withsupported accommodation or hostels leased bya voluntary organisation from a local authority orRSL. Universities, in particular, may also

manage properties which are (effectively if notformally) leased to them by individual owners.

This is a different situation from an owner usingan agent to manage their property. It does notchange the responsibility of the owner to obtainthe HMO licence, since they are givingpermission for the lessee to use the property inthat way. However, in terms of the relationshipwith the occupiers, it is the lessee’s proceduresand tenancy/occupancy agreements that shouldbe scrutinised. The licensing authority shouldalso examine the terms of the lease between theowner and the operator, to ensure thatresponsibility for issues such as maintenanceare clear, and that the operator has the freedomand authority necessary to fulfil its dutiestowards the occupants.

3-2.3 RECOMMENDED ELEMENTS OF TENANCY/OCCUPANCY AGREEMENTS

A sound tenancy or occupancy agreement is anessential base for good management of anyrented property, setting out the rights andresponsibilities of both the landlord and thetenant. A licensing authority will normally requireto check, before awarding an HMO licence, thatthe operator uses an acceptable form of tenancyor occupancy agreement. This may be a formaltenancy or may come in another form, such as,in temporary accommodation, a list of houserules and service standards, or as part of acontract of employment or a care and supportplan. It is not the intention of this guidance toprovide a model occupancy agreement, but toidentify elements that licensing officers shouldexpect to find in the agreements provided bylandlords. It is not necessary for a licensingauthority to check the tenancy / occupancyagreements given by Registered SocialLandlords which operate HMOs, since these areapproved by Communities Scotland.

As with the licensing conditions, the tenancyelements (numbered “TE”) set out below are

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intended to be applicable to all types of HMOaccommodation. This means that in some casesthe requirements or restrictions may be “none”,but for the sake of clarity they should still beincluded, so that there is no uncertainty shoulda dispute arise. The importance of the tenancy /occupancy agreement is not simply as a piece ofpaper, but as a statement of intent andcommitment to acceptable behaviour from bothparties, which can then be monitored.

This guidance does not cover all the clauseswhich are required by legislation in differenttypes of formal tenancy. HMO landlords should,of course, comply with the law, and these issuesshould be checked by the licensing authoritywith legal advice. However, not all of thoseclauses are key issues for good tenancymanagement, and they are not required inoccupancy agreements.

TE1 The tenancy / occupancy agreement clearlysets out the amount of rent, what it covers,how it is to be paid, how any changes of rentwill be notified to the tenant, arrangementsfor return of rent deposits and how anydeductions from the deposit will be agreed.

TE2 The tenancy / occupancy agreement clearlysets out the respective responsibilities of thelandlord and the tenant for cleaning,maintaining and repairing the property, fittings

and furnishings. This includes timescalesfor the tenant to report any disrepair whichis the responsibility of the landlord torectify, and for the landlord to respond.

TE3 The tenancy / occupancy agreement statesthat the tenant is entitled to receive 24hours notice, in writing, of the landlord’sintention to enter the property, or areas ofthe property to which he or his staff do notnormally have access, for the purpose ofcarrying out maintenance, repairs orinspection. (This does not restrict emergencyaccess if necessary. Access for otherpurposes, such as cleaning, security or toprovide care, should be dealt with separatelywhere appropriate.)

TE4 The tenancy/occupancy agreement makesclear that the tenant, and any person visitingthe tenant, must not commit any form ofharassment, or behave in a way that causesnuisance or distress, to any other person inthe HMO or in the locality of the HMO.

TE5 The tenancy/occupancy agreement givesdetails of the landlord or agent’s name andaddress.

TE6 The tenancy/occupancy agreement clearlysets out whether the tenant may sublet,and any restrictions on tenants havingvisitors.

3-3: PHYSICAL STANDARDS

One of the key aims of HMO licensing is toensure that the accommodation provided is safe,of good quality, and has sufficient facilities forthe number of occupants. The followingparagraphs set out the aspects which should beconsidered. Technical details for the Benchmarkstandards, such as measurements and relevantBritish Standards, are included in Annex C.

It should be noted that the Benchmarkstandards are intended to provide referencepoints to help local authority and fire officersdetermine whether a particular HMO offers anacceptable level of accommodation, and theyshould be applied flexibly. Appropriate standardsmay vary, depending on the circumstances ofeach case, and it may also be possible toachieve the same level of accommodation orsafety through different packages of measures.Licensing officers should always giveconsideration to alternative approachesproposed by the landlord. In setting requiredstandards, licensing authorities should keep inmind the need to achieve a reasonable level ofaccommodation and safety without placing toogreat a burden on the owners of HMOs, whichcould lead to a reduction in the supply of thistype of housing.

Relationship to compliance with the BuildingRegulations

The Benchmark standards included in thisguidance cover a range of issues, many of whichare also addressed by Building Regulations, withguidance given in the new TechnicalHandbooks3. However, these apply only to newbuildings, to existing buildings when they arealtered or converted, and to extensions.Conversions include certain types of change ofuse, and significant alterations in the type and

the number of expected occupants. Often, itwould be impractical to apply the same level ofrequirements to older properties if they are notundertaking such alteration or conversion. TheBenchmark standards have therefore beencompiled, in some cases from the requirementsof Building Regulations, but also from existingpractice in other areas such as EnvironmentalHealth.

Newly-built or converted HMOs must of coursemeet the level of requirements applicable underthe Building Regulations. However, even buildingsthat meet the Building Regulations requirementsmay require additional work to make the propertysuitable for use as an HMO rather than, forexample, a family home. In many cases, abuilding warrant will be required for such work, orif a warrant is not required, the work may stillhave to meet Building Regulations. Advice shouldbe sought from building standards officers.

Treatment of children and resident landlords

A number of the standards refer to the spaceand facilities required according to the numberof occupants of the property. In general, thisrelates to the number of adults. It is suggestedthat, for these standards, children over 10 yearsshould be treated as full adults, children betweenone and ten years as equivalent to half an adult,and children under one should not be counted.

It is relatively uncommon for children to beaccommodated in an HMO. When this doesoccur it is often because emergencyaccommodation is required, either for the wholefamily or for a child who cannot stay with his orher usual carer. Licensing authorities will wish totake a sympathetic approach if this leads to theHMO exceeding its licensed number ofoccupants for a short time. Licensing officersmight work with the local authority’s housingdepartment to help the family find more suitableaccommodation.

3Technical Handbooks providing guidance for theBuilding (Scotland) Regulations 2004 will be publishedlater in 2004.

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Resident landlords, and any members of theirfamily who live with them, are excluded fromthe calculation of the number of “qualifyingpersons” in an HMO. However, when assessingthe standards and facilities required, licensingofficers should take account of all theoccupants of the property. For example, acouple with five tenants will need facilitiesappropriate for 7 people.

P1 SPACE AND LAYOUT

The HMO should not be overcrowded. Normally,sleeping accommodation will be in the form ofsingle or double bedrooms, although otherarrangements can be accepted. Every roomused as a bedroom should be capable ofaccommodating at least

• a bed,

• a wardrobe (except where a built-in wardrobeof equal size is provided), and

• a chest of drawers,

together with adequate activity space.

Benchmark dimensions for rooms, furniture andactivity spaces are given in Annex C.

All bedrooms should be located so that it is notnecessary to pass through another bedroom toreach a bathroom, WC or circulation space. Ifthere is not a WC on the same level as eachbedroom, there must be one no further than thenext floor up or down.

Suitable arrangements should be provided internallyor externally for drying clothes, bedding etc.

Every stair for a change in level of more than600mm should have a suitable handrail on atleast one side.

P2 KITCHENS

Part of the definition of an HMO is that it is theonly or main residence of the occupants, that is,their home. Existing practice has establishedthat, wherever possible, this should mean that

residents can get all meals in the accommodationand snacks at reasonable times, whether this isachieved by providing kitchen facilities forresidents’ use or meals cooked by staff.

The requirements for kitchen facilities shouldtake account of the needs of the occupants andthe arrangements for meals (for example, mealscooked communally require less space andequipment than if each person cooks separately).Where kitchen facilities are provided forresidents’ use they should have:

• one sink for every six people, with integraldrainers.

• adequate food storage for the number ofoccupants (lockable where requested byoccupants).

• adequate impervious work surface.

• one cooker for every six people. Cookersshould be provided with the associatedactivity space shown in Annex C.

Microwave ovens and automatic dishwashersmay also be provided, but these do not entirelyreplace cookers and sinks. Existing practicesuggests that, where the number of occupants isnot divisible exactly by six, a microwave ordishwasher may be accepted as providing forthe remaining numbers. (eg, 15 occupants: 2 sinks, 2 cookers, 1 dishwasher, 1 microwave).

P3 SANITARY FACILITIES, WATER ANDDRAINAGE

There should be

• one WC for every five people

• one bath or shower for every six people.

Every toilet should have a washbasin within thetoilet itself or within an adjacent space providingthe sole means of access to the toilet. The toiletand washbasin space should also be separatedby a door from any room or space used whollyor partly for the preparation or consumption offood.

There should be hot and cold water suppliessuitable and sufficient for their purposes.

The building should be provided with a safe andhygienic drainage system which complies withthe relevant British or European Standards.

P4 SPACE HEATING

Each bedroom and living room should have afixed space heating appliance or be served by acentral heating system, which may include anysystem of warm air or underfloor heating,capable of maintaining a temperature of 18˚Centigrade when the outside temperature isminus 1˚ Centigrade. (A higher temperature maybe specified where the HMO is intended to beoccupied by older people or others who needadditional heating.)

Liquid Petroleum Gas (LPG) heaters should notbe used.

Specifications for solid fuel, oil-fired or gas-firedheaters are provided in Annex C.

P5 LIGHTING AND VENTILATION

Every bedroom and living room should havenatural lighting and ventilation from a window orwindows situated in an external wall or roof, orin a wall between the room and a conservatory.The aggregate glazed area must be equal to atleast 1/15th of the floor area of the apartment,and the opening area should be at least 1/30thof the floor area.

Kitchens, bathrooms and toilets should haveeither natural ventilation as for bedrooms andliving rooms, or adequate mechanicalventilation.

There should be an electric lighting systemproviding at least one lighting point to everycirculation space, bedroom, living room, kitchen,bathroom, toilet and other space having a floorarea of 2 square metres or more. Any lightingpoint serving a stair within an HMO should havecontrolling switches at each storey.

P6 FIRE SAFETY

Every HMO must have adequate fireprecautions, including provision for:

• detection and giving warning in case of fire;

• escape from the building; and

• fighting fire.

A risk assessment should be carried out by oron behalf of the applicant to establish both therisk of fire occurring and the risk to people inthe event of fire. This would apply to everyonewho may be in the HMO (residents, staff andvisitors) and should take adequate account ofany people with special needs. Such a riskassessment will show whether the existing fireprecautions are adequate, and what changesneed to be made if not. The risk assessmentshould be reviewed by officers of the licensingauthority or fire authority when inspecting thepremises. Guidance on risk assessment andother fire safety matters is contained in FireSafety – an employer’s guide (ISBN0113412290). Guidance on fire risk assessmentspecifically for HMOs is currently under review.

Fire safety equipment must be regularlymaintained according to the manufacturer’srecommendations. An emergency plan shouldbe prepared, and all residents and staff must bemade aware of what to do in the event of a fire.

Detailed Benchmark standards for fireprecautions are given in Annex C. Licensingofficers and fire officers should note that thesestandards should not be seen as either amaximum or a minimum, but are intended toprovide a reference point for an “average” HMO.They should be applied flexibly, taking accountof the physical features of the property and thetype of occupants in each case. Officers shouldalways give consideration to alternativeapproaches where these can provide anequivalent level of safety, for example where anautomatic life safety fire suppression system is

41


42

installed in lieu of an alternative means ofescape.

P7 GAS AND ELECTRICAL SAFETY

Under the Gas Safety (Installation and Use)Regulations 1998, the landlord must have anannual gas safety check carried out on all gasappliances by a CORGI registered gas installer.The licensing authority should request a copy ofthe current gas safety certificate to confirm thatthis has been done.

The landlord should be required to providecertification to show that the electrical systemand any appliances provided by the landlordhave been examined by a competent personwho has confirmed they are functioning properlyand are safe. Such an examination should becarried out at least once every three years.

The number of electrical socket outlets shouldmeet at least the following minimumrequirements:

• 6 in each kitchen

• 4 in each bedroom and living room

• 4 additional sockets anywhere in thebuilding.

P8 NOISE REDUCTION

Noise is a significant source of complaints aboutHMOs from neighbours, and some physicalaspects of the property can add to the problems.Landlords should be encouraged to considerways of minimising noise nuisance in relation tothe choice and installation of items such as doorclosers and extract fans, for example. Theyshould be advised to ensure that deafeningbetween floors is not removed during workunder the floorboards, and the licensingauthority may consider recommending thatcarpets are laid rather than wooden flooring.

P9 SECURITY

The accommodation should have secure lockson all access doors and ground floor oraccessible windows, and on the doors ofresidents’ rooms where appropriate. All locksshould be capable of being opened from theinside without recourse to a key, so thatresidents can escape in case of fire. Landlordscould be encouraged to consult the CrimePrevention Officer at the local Police Station foradvice on security.

The Civic Government (Scotland) Act 1982 (Licensing of Houses in Multiple Occupation) Order2000

Consolidated version containing all amendments to 1 October 2003

This consolidated version of the Order has been prepared by housing officials to assist readersof the guidance, and should not be treated as definitive or authoritative.

The Scottish Ministers, in exercise of the powers conferred upon them by section 44(1)(b) and(2) of the Civic Government (Scotland) Act 1982 and of all other powers enabling them in thatbehalf, hereby make the following Order, a draft of which has been laid before and approvedby a resolution of the Scottish Parliament:

Citation and commencement

1. This Order may be cited as the Civic Government (Scotland) Act 1982 (Licensing ofHouses in Multiple Occupation) Order 2000 and shall come into force on the day after the dayon which it is made.

Interpretation

2. (1) In this Order, unless the context otherwise requires-

“the 1982 Act” means the Civic Government (Scotland) Act 1982;

“the 1991 Order” means the Civic Government (Scotland) Act 1982 (Licensing of Housesin Multiple Occupation) Order 1991;

“co-ownership body” means a co-operative housing association, within the meaning ofsection 300(1)(b) of the Housing (Scotland) Act 1987, the management of which isundertaken by general meeting;

“foster child” means a child for whom a local authority is providing accommodation undersection 25 of the Children (Scotland) Act 1995 by placing him or her with a family, relativeor other suitable person in accordance with section 26(1)(a) of that Act;

“house” includes (subject to paragraphs (2) and (4) below) any part of a building, being apart which is occupied as a separate dwelling and, in particular, includes a flat;

“house in multiple occupation” means a house occupied during any period mentioned inarticle 5 of this Order by more qualifying persons than the number specified in that articlein relation to that period, being persons who are not all members either of the same familyor of one or other of 2 families;

“owner” means a person having a heritable interest in the house which is capable of beingrecorded in the General Register of Sasines or registered in the Land Register (establishedby section 1 of the Land Registration (Scotland) Act 1979) and “owned” and “ownership”shall be interpreted accordingly;

“qualifying person” means (subject to paragraph (3) below) a person whose only orprincipal residence is the house in multiple occupation;

“women’s refuge” means a house managed by a voluntary organisation and used wholly orprincipally for the temporary accommodation of persons who have left their homes as aresult of-

45

ANNEX A

ANNEX A

46

(a) physical violence or mental abuse; or

(b) threats of such violence or abuse,

from persons to whom they are or were married or with whom they are or were co-habiting.

(2) Any house-

(a) which is provided as part of-

(i) a care home service;

(ii) an independent health care service;

(iii) a school care accommodation service; or

(iv) a secure accommodation service,

registered under the Regulation of Care (Scotland) Act 2001;

(b) [repealed]

(c) which is occupied by a religious community whose principal occupation is prayer,contemplation, education or the relief of suffering;

(d) which is occupied only-

(i) by qualifying persons, each of whom has a heritable right of ownership in thehouse; or

(ii) by a person who is a member of the same family as such a qualifying person;

(e) in respect of which a control order under section 178 of the Housing (Scotland) Act1987 is in force; or

(f) which is owned by a co-ownership body

shall not be regarded as a house for the purposes of this Order.

(3) For the purposes of the definition of “qualifying person” in paragraph (1) above-

(a) a person undertaking a full time course of further or higher education who residesduring term time in a house shall, during the period of that person's residence, beregarded as residing there as his only or principal residence; and

(b) a patient in a hospital from which National Health Service goods and services areprovided under the National Health Service (Scotland) Act 1978 shall be disregardedfor the purpose of calculating the number of persons who occupy a house as their onlyor principal residence.

(4) For purposes of this Order, houses comprised within a building which, although otherwiseseparate, share use of-

(a) a sanitary convenience; or

(b) personal washing facilities; or

(c) cooking facilities,

shall be taken to form part of a single house.

(5) For purposes of this Order, a person is a member of the same family as another person if-

(a) those persons are married to each other or live together as a couple; or

(b) one of them is the parent, grandparent, child, grandchild, brother, sister, uncle, aunt,nephew or niece of the other,

and, for the purposes of sub-paragraph (b) above-

(iii) a relationship by marriage shall be treated as a relationship by blood;

(iv) a relationship of the half-blood shall be treated as a relationship of the whole blood;

(v) the stepchild of a person shall be treated as his or her child.;

(vi) the foster child of a person shall be treated as that person's child;

(vii)a person brought up or treated by another person as if the person were the child ofthe other person is to be treated as that person's child.

Licensing of houses in multiple occupation

3. (1) For the purposes of section 44(1)(b) of the 1982 Act, giving permission for a house tobe occupied is hereby designated as an activity for which a licence under this Order shallbe required.

(2) For the purposes of paragraph (1) above, a person giving permission permits a house to beoccupied if, and only if-

(a) that person is the owner of that house; and

(b) that person knowingly gives permission for that house to be occupied; and

(c) that house is a house in multiple occupation.

(3) Where a house is owned by more than one person, it shall be a defence for an ownercharged with an offence under section 7(1) of the 1982 Act to show that another personwho has a heritable right of ownership in that house holds a licence required by virtue ofparagraph (1) above.

(4) Paragraph (1) above is subject to articles 6, 7 and 8 below.

Application of Part I of the 1982 Act

4. Part I of the 1982 Act shall have effect, subject to the modifications specified in theSchedule to this Order, for the purposes of the licensing of the activity designated by article 3above.

47

ANNEX A

48

Size of house in multiple occupation

5. (1) Subject to paragraph (2) below, the number of qualifying persons, for the purpose ofthe definition of a house in multiple occupation in article 2(1) above, is specified as follows:-

(a) in the period beginning with 1st October 2000 and ending with 30th September 2001,5;

(b) in the period beginning with 1st October 2001 and ending with 30th September 2002,4;

(c) in the period beginning with 1st October 2002 and ending with 30th September 2003,3; and

(d) in the period beginning with 1st October 2003, 2.

(2) Where a house is occupied by-

(a) any person with a heritable right of ownership in the house; or

(b) any such person together with any person who is a member of the same family as thatperson,

those persons shall be disregarded in calculating the number of qualifying persons for thepurpose of paragraph (1) above.

Transitional provisions

6. (1) Unless article 7 below applies, no relevant person shall, in the relevant period, be guiltyof an offence under section 7(1) of the 1982 Act in consequence of the giving by that personof any permission for which a licence would be required by virtue of article 3 of this Orderwhere-

(a) an application has been made prior to 1st October 2000 by that person to the licensingauthority for a licence to give that permission; and

(b) that application is not withdrawn.

(2) In paragraph (1) above-

“the relevant period” means-

(a) where the application referred to in paragraph (1) above is granted, the period from 1stOctober 2000 to the date of that grant; or

(b) where that application is refused, the period from 1st October 2000 to the date threemonths after the date of that refusal; and

(c) “relevant person” means an owner of a house who has, immediately before 1st October2000, given permission for that house to be occupied by more than 5 persons (beingpersons who are not all members either of the same family or of one or other of 2families) as their only or principal residence.

49

7. (1) Article 3 of this Order shall not apply in relation to any permission given in respect of ahouse where that permission is, at 1st October 2000, authorised by virtue of a licence grantedunder the 1991 Order until-

(a) the date on which that licence granted under the 1991 Order expires;

(b) the date on which that licence is surrendered; or

(c) the date on which any revocation or suspension of the licence by the licensingauthority has effect, and the terms and conditions of the licence granted under the1991 Order shall continue to apply until its expiry or surrender or until the date onwhich any such revocation or suspension of that licence has effect.

(2) Where the date on which that licence granted under the 1991 Order is due to expire fallsprior to 30th September 2001, that licence shall be deemed to have been granted, andshall continue in force subject to the terms and conditions under which it was granted(other than as to expiry date), until (and including) 30th September 2001.

(3) This article only applies to a permission in relation to a house which, in the periodspecified in article 5(a) above, is a house in multiple occupation.

8. (1) Article 3 of this Order shall not apply in relation to any permission given in respect of ahouse where that permission is, at the relevant date, authorised by virtue of a licencegranted under the 1991 Order until-

(a) the date on which that licence granted under the 1991 Order expires;

(b) the date on which that licence is surrendered; or

(c) the date on which any revocation or suspension of the licence by the licensingauthority has effect,

and the terms and conditions of the licence granted under the 1991 Order shall continueto apply until its expiry or surrender or until the date on which any such revocation orsuspension of that licence has effect.

(2) This article only applies to a permission in relation to a house which, in the respectiveperiods specified in article 5(b) to (d) above, is a house in multiple occupation.

(3) In paragraph (1) above, “relevant date” means-

(a) in the period specified in article 5(b) above, 1st October 2001;

(b) in the period specified in article 5(c) above, 1st October 2002; and

(c) in the period specified in article 5(d) above, 1st October 2003.

Revocation of 1991 Order

9. (1) Subject to paragraph (2) below, the 1991 Order is hereby revoked with effect from 1stOctober 2001.

ANNEX A

50

(2) Notwithstanding the revocation of the 1991 Order by paragraph (1) above, any licencegranted under or by virtue of the 1991 Order prior to 1st October 2001 which is due toexpire after that date shall continue in force until the date of its expiry or withdrawal or untilthe date on which any revocation or suspension of that licence becomes effective and theprovisions of the 1991 Order shall continue to apply to that licence while it is in forceexcept that that licence may not be renewed on or after that date.

51

ANNEX A SCHEDULE

MODIFICATIONS OF PART I OF THE 1982 ACT (TO WHICH EFFECT IS GIVEN FOR PURPOSES OFTHE LICENSING OF THE GIVING OF PERMISSION FOR THE OCCUPATION OF A HOUSE AS AHOUSE IN MULTIPLE OCCUPATION BY ARTICLE 4 OF THIS ORDER)

1. In section 3 of the 1982 Act (time period for discharge of functions)-

(a) in subsection (1), for the words “6 months”, there shall be substituted the words “12 months”; and

(b) in subsections (2) and (4), for the words “6 month”, there shall be substituted in eachcase the words “12 month”.

2. In section 6 of the 1982 Act (powers of entry to and search of unlicensed premises)-

(a) in subsections (1) and (2), after the word “constable” in both places where it appears,there shall be inserted in each case the words “(or an authorised officer of thelicensing authority)”;

(b) in subsection (3)-

(i) there shall be inserted after the words “not in uniform” the words “(and where theperson executing the warrant is an authorised officer of the licensing authority, thatofficer)”; and

(ii) there shall be inserted after the words “the constable” the words “(or suchauthorised officer)”; and

(c) in subsection (4)-

(i) there shall be inserted after the words “permit a constable” the words “(or anauthorised officer of the licensing authority)”; and

(ii) there shall be inserted after the words “by a constable” the words “(or suchauthorised officer)”.

3. In section 7(1) (offences, etc.) of the 1982 Act, for the words “level 4” there shall besubstituted the words “level 5”.

3A. After section 7(5) (offences, etc) of the 1982 Act there shall be inserted as follows:-

“(5A) Any person who without reasonable excuse acts as an agent for an owner of ahouse in multiple occupation when that owner does not hold or has not applied for alicence as required by the Civic Government (Scotland) Act 1982 (Licensing of Houses inMultiple Occupation) Order 2000 shall be guilty of an offence and liable, on summaryconviction, to a fine not exceeding level 5 on the standard scale.

(5B) Where an officer of a licensing authority has reasonable grounds to suspect that theoccupation of a house involves the commission of an offence under this Act, that officermay require any agent of the owner of that house to disclose the name and address of thatowner.

ANNEX A SCHEDULE

52

(5C) Any person who without reasonable excuse fails to comply with a requirementmade by virtue of subsection (5B) above shall be guilty of an offence and liable, onsummary conviction, to a fine not exceeding level 3 on the standard scale.

(5D) For the purposes of this section, a person acts as an agent for an owner of a houseif that person acts on behalf of that owner in carrying out any activity which directly permitsor facilitates the occupation of that house.”

4. In paragraph 2 of Schedule 1 to the 1982 Act, after sub-paragraph (1), there shall beinserted as follows:-

“(1A) Where an application is made for the grant or renewal of a licence in relation to ahouse in multiple occupation used as a women’s refuge, the licensing authority shall, assoon as the application is made to them, give notice in writing to such persons residing inthe vicinity of the premises in relation to which the application is made as the authorityconsider fit of the making of the application containing the information specified in sub-paragraph (3) below.”

5. Paragraphs 2(2) and (4) to (8), 3(1)(e)(i) and 5(4) of Schedule 1 to the 1982 Act shall notapply where the application is made in respect of a house in multiple occupation used as awomen's refuge.

6. In paragraph 3(1)(e)(ii) of Schedule 1 to the 1982 Act, there shall be inserted after thewords “that date”, the words “(or, where the application is made in respect of a house inmultiple occupation used as a women’s refuge, the date on which notice under paragraph2(1A) above was given to the person making that objection or representation)”.

7. In paragraph 5(2) of Schedule 1 to the 1982 Act, there shall be added after the words“such reasonable conditions” the words “(other than conditions relating to the amount of rentor other charges which may be imposed upon occupiers of the house)”.

7A. For paragraph 15 (fees) of Schedule 1 to the 1982 Act, there shall be substituted-

“Fees for houses in multiple occupation licences

15. (1) A licensing authority shall charge such fees in respect of houses in multipleoccupation licences and applications for such licences as may be resolved by them fromtime to time and shall seek to ensure that the total amount of fees received in respect ofsuch licences and applications is, taken together with any money to which sub-paragraph(2) applies, sufficient to meet the expenses incurred by them in carrying out the functionsexercisable by them by virtue of the Civic Government (Scotland) Act 1982 (Licensing ofHouses in Multiple Occupation) Order 2000.

(2) The money to which this sub-paragraph applies is any money paid by grant to thelicensing authority by the Scottish Ministers for the purpose of enabling the authority tocarry out the functions exercisable by them by virtue of that Order.”

8. After paragraph 19 of Schedule 1 to the 1982 Act there shall be inserted as follows:-

“20. In this Schedule, “women’s refuge” has the same meaning as in the CivicGovernment (Scotland) Act 1982 (Licensing of Houses in Multiple Occupation) Order2000.”

53

ANNEX B

54

ILLUSTRATIVE QUESTIONNAIRE FOR LICENSEE’SDECLARATION (SECTION 2-2.3)

This example is intended as an illustration of oneformat which a licensing authority might adopt forthe licensee’s declaration, and of the level ofdetail which might be appropriate. Individualauthorities are free to adopt other formats, or toinclude different questions, depending on thelicensing conditions and standards they apply.Alternatively, authorities may prefer to rely on asimple signed statement that the requiredstandards have been met.

Each authority must satisfy itself that the form oflicensee’s declaration allows it to meet itsresponsibilities under the Civic Government(Scotland) Act 1982

Preparation of the questionnaire

It is recognised that the level of detail requiredfor a licensee’s declaration may be higher thanis currently recorded by local authorityinspectors, and preparing the initial descriptionof the property might therefore require additionalwork on their part. On the other hand, if the

licensee is asked to prepare the description,they may fail to note points which are key toassessing whether standards are met. Oneapproach that may be helpful is to ask thelandlord to complete the description as far aspossible, in advance of an inspection, and forthe inspecting officers then to check and wherenecessary add to this information.

If the description is compiled at the firstavailable routine inspection, for those categoriesof landlord that the local authority is prepared toconsider for use of the licensee’s declaration,this could avoid the need for an additional visitfor this purpose at a later stage in the qualifyingprocess. Once the description is on file, it canbe easily converted into the questionnaireformat, to be checked and updated by thelicensee.

For blocks of identical or very similar properties,a single form could be completed, noting thatthe description is accurate for every unit in theblock. Minor differences (for example, additionalwindow locks in ground-floor flats) could benoted within the single form.

55

LICENSING OF HOUSES IN MULTIPLE OCCUPATION

LICENCEE'S DECLARATION OF COMPLIANCE WITH LICENSING CONDITIONS

Licence-holder's name(s): Mrs Philippa Makkat

Address of property: 52 Streeter Road, Dunburgh

Licence reference number: DBSTR 300647

Application for Renewal / Interim check (Authority to delete as appropriate)

Date of last direct inspection: 08/05/03

The following table sets out the physical features of the accommodation and managementpractices which were in place at the last direct inspection by officers of the licensing authority,and were accepted as meeting the required standards for award of a licence to operate a Housein Multiple Occupation (HMO).

– Please confirm that the accommodation and management continue to match the description bymarking the appropriate box for each section.

– If anything has been altered or replaced since the last direct inspection, please give detailson the comments sheet.

– Please attach all relevant certificates of installation, inspection or maintenance.

– Sign the form and return it to:

IT IS A CRIMINAL OFFENCE TO MAKE A FALSE STATEMENT IN AN APPLICATION FOR AN HMOLICENCE, OR TO FAIL TO COMPLY WITH ANY CONDITION OF THE LICENCE.

If any physical features have been altered or replaced, a licensing officer may need to visit theproperty to check the situation. Inspections are also carried out on a random sampling basis tocheck the accuracy of declarations. If we need to visit, we will contact you to arrange a suitabletime.

In considering whether the required standards continue to be met, and licensing conditionscomplied with, the licensing authority may take into account other evidence available to it, inaddition to this declaration.

ANNEX B

56

Description

Number of occupants: 10

Description of property, layout and use of rooms.

3-storey mid-terrace house, garden to rear.Ground floor: Lobby, hallway, door to stairwell.Living room and twin bedroom(1) to front,kitchen at rear with door to garden, WCconverted from hall cupboard.1st floor: hall, door to stairwell, 4 singlebedrooms (2 – 5), principal bathroom.2nd floor: hall, door to stairwell, 4 singlebedrooms (6 - 9), shower room, storagecupboard.

All rooms open direct from hallways. Stairs havesuitable handrail on both sides.

Kitchen facilities. List facilities for food storage,preparation, cooking and washing dishes.

Double sink with drainer.Six-ring gas hob.Double oven and grill (electric)Microwave

6 food cupboards with 2 shelves each. 2 fridgeswith 4 shelves each, 4-drawer freezer.

Marble-effect work surface across 3 cupboards,oven and fridge.

Sanitary facilities. List WCs and washingfacilities and their location.

Ground floor toilet: WC, WHBFirst floor bathroom: WC, WHB, bath, electricshower over bathSecond floor shower room: electric shower.

Arrangements for drying clothes etc

Tumble dryer in kitchen. Lines in garden

Is this still an accurate descriptionof the accommodation orprocedures in place?

Yes �No - see comments

Yes �

No - see comments

Yes �

No - see comments

Yes �

No - see comments

Yes

No - see comments

57

Description

Space heating

All bedrooms, hallways and bathroom have radiators fromgas central heating system. Shower room has electric heater with pull cord. Living room has additional living flame gas fire.

Lighting/ventilation. Describe arrangements for natural andartificial lighting, natural and, where relevant, mechanicalventilation.

All single bedrooms, living room, and bathroom have onesash window each, opening at least 450mm from bottom.Bedroom (1) and kitchen have 2 windows each, of samesize.Shower room and ground floor WC have extract fans.All rooms, hallways and stairs have central ceiling lights.Stairwell lights have switches on each storey. Bedroomsalso have desk lamps. Kitchen has additional under-shelfstrip lighting.

Fire Safety. Describe provision for detecting and givingwarning, preventing spread of fire and smoke, escape,fighting fire, and fire safety management.

Fully linked fire detection system, mains-powered withbattery backup. Smoke detector in each bedroom, livingroom and hallway. Heat detector in kitchen.Proof of annual maintenance check must be providedDoors to all rooms and stairwells have automatic closersand are solid timber with 30 minutes fire resistance. Stairwell is brick construction. All stairs, hallways and kitchen walls and ceilings arepainted directly on plaster. Windows in bedrooms and living room are adequate for escape.Ceiling lights in hallways and stairs are suitable asemergency lighting.Water-type fire extinguisher properly mounted by door tostairwell on each floor. Proof of annual maintenance check must be providedFire blanket mounted by door in kitchen.

Is this still an accuratedescription of theaccommodation ormanagementprocedures?

Yes �

No - see comments

Yes

No - see comments �

Yes �

No - see comments

ANNEX B

58

Description

Fire Safety (cont)Information sheet provided to each resident with lease,giving details of alarm system, escape routes, location anduse of fire-fighting equipment. Also highlights requirementnot to interfere with fire doors, detection/alarm system orextinguishers.

Gas and Electrical Equipment. List all gas appliances,electrical equipment provided by landlord, and electricalsockets. Gas boiler in kitchen, gas fire in living room.Copy of annual gas safety certificate must be attached.Apart from installed equipment in kitchen and bathroom,landlord provides TV in living room, desk lamp in eachbedroom. Certification of electrical system and appliancesprovided 27/05/03. Further certificate required by 27/05/06.Electrical sockets:4 in each bedroom4 in living room8 in kitchen2 in each hallway.1 shaver socket each in bathroom and ground floor toilet.

Noise reduction measures

Fitted carpets in all bedrooms and hallways, and livingroom.

Security. Give details of door and window locks, any othersecurity features.

Front and back doors have Yale-type and thumb-turn mortiselocks. Front door has spy-hole. All windows have lockingcatches. Resident’s room doors have Yale-type locks.

Telephone access

Telephone socket provided in ground floor hallway.


Yes �

No - see comments

Yes �


Yes �

No - see comments

Yes �

No - see comments

Yes �

No - see comments

59

Description

Statement of rights and responsibilitiesAll tenants sign lease before moving in. Form of lease is asapproved by Council on 15/05/03. Lease will be providedin other languages/formats if requested.

Record keeping – tenants, deposits and rents.Landlord maintains record of all tenants with dates of entryand leaving, and record of all deposits and rents received.

Deposits are returned within 4 weeks of termination oflease. If any deductions are made, a statement ofdeductions is provided with copy of receipts forreplacement/repair/cleaning etc.

Contact details. Describe how contact details are providedto tenants and neighboursEmergency and non-urgent contact details, and advice onaction to be taken in emergency, provided to each tenantwith lease, and on notice in ground floor hallway.

Contact details provided to neighbours on 8/06/03 are stillaccurate.

Other regulation. Give details of registration with otherrelevant regulators, eg Communities Scotland, CareCommission.

N/A


Yes �

No - see comments

Yes �


Yes �


Comments

Please give details below of any features which have been altered or replaced since thelast direct inspection.Lighting and ventilation – sash windows have been replaced throughout with double-glazed, PVC-frame “Tilt and turn” type. Whole window tilts to give 20cm opening attop edge, or turns to open fully for fire escape. Windows on second and third floors canonly be turned to open with key, kept by manager for cleaning.Contact details – new contact details provided to neighbours and put up in hallway20/01/04.

ANNEX B

60

DECLARATION

I declare that all the information given in this form is correct to the best of my knowledge.

Signed Pip Makkat Date 27/04/03

Print Name Phillippa Makkat (Mrs)

ANNEX C

62

TECHNICAL SPECIFICATIONS FOR BENCHMARK STANDARDS (SECTION 3-3)

P1 – SPACE AND LAYOUT

Bedrooms where common living room available

Single room (1 adult) 6.5 sq. metres

Double room (2 adults) 10.5 sq. metres

Triple room ( 3 adults) 16.5 sq. metres

Over 3 adults 16.5 sq. metres

+ 4.5 sq. metres per person over 3

Family room (2 adults + children under 10) 10.5 sq. metres + 4.5 sq. metres per child

Bedrooms where no communal living area available

1 adult 10 sq. metres

2 adults 15 sq. metres

3 adults 19.5 sq. metres

Over 3 adults 19.5 sq. metres + 6 sq. metres per person over 3

Family Room (2 adults + children under 10) 15 sq. metres + 7 sq. metres per child.

Bedroom with cooker

1 adult 13 sq. metres

2 adults 19 sq. metres

(In normal circumstances children would not be accommodated in bedrooms with cookers. If,exceptionally, they are, appropriate measures must be taken to ensure their safety.)

Communal Living Room

3 - 6 persons 11 sq. metres

7 -10 persons 16.5 sq. metres

11-15 persons 19.5 sq. metres

63

Notes:

1. An activity space is measured at floor level.

2. The shaded area of an activity space may overlap only the shaded area of another activity space.

P2 KITCHENS

Activity Space for Cookers

Activity Spaces for bedrooms

900 400

2000

250

Bed space Wardrobe Space Chest of Drawers Space

600

600

1000(700)

750

450

1000(700)

KEY

Activity Space

Dimensions in millimetres

Reduced dimension when measured to a bed( )

Z

Z

1000

Cooker Space

KEY

Activity Space

Not less than the dimensions of the appliance

Dimensions in millimetres

Z

Note

An activity space is measured at floor level.

ANNEX C

64

P4 SPACE HEATING

P4-1 Solid fuel

A solid fuel appliance should have a permanentsupply of air either direct to the open air or to anadjoining space (including a sub-floor space)that is itself permanently ventilated direct to theopen air. Air supply provided as follows willsatisfy the requirement -

i. Traditional open flued fire: 50% ofthe cross-sectional area of the throator the flue as appropriate; or

ii. any other solid fuel appliance: apermanent air entry opening oropenings with a total free area of 550mm2 for each kW of combustionappliance rated output over 5 kW.

Annual inspection/cleaning of chimneys/fluesshould be carried out and a certificate providedstating that the system is functioning properly.

P4-2 Oil fired

An oil-fired appliance, other than a room-sealedappliance, should have a permanent supply ofair for combustion either direct to the open air orto an adjoining space (including a sub-floorspace) which is itself permanently ventilateddirect to the open air. Compliance with Section 4of BS 5410: Part 1: 1997 will satisfy thisrequirement.

An oil-fired appliance installed in a confinedspace should have a permanent supply of air forcooling in addition to air for combustion, eitherdirect to the open air or to an adjoining space(including a sub-floor space). Compliance withClause 4.4.3 of BS 5410: Part 1: 1997 willsatisfy this requirement.

P4-3 Gas fired

A gas-fired appliance should have an adequatesupply of air for combustion. Compliance withthe following British Standards will satisfy thisrequirement -

i. for a decorative fuel-effect gasappliance, BS 5871: Part 3: 1991;

ii. for an inset live fuel-effect gasappliance, BS 5871: Part 2: 1991;

iii. for any other gas-fired appliance, BS5440: Part 2: 1989.

A gas-fired appliance installed in a confinedspace should have an adequate supply of air forcooling in addition to air for combustion.Compliance with BS 5440: Part 2: 1989 willsatisfy this requirement.

Annual certification that installed gas systemshave been examined by a qualified person(CORGI registered), that they are functioningproperly and ventilation is adequate should beprovided.

P4-4 Extract fans

Where an extract fan is fitted in the same room(or in an adjoining room) as an open-fluedcombustion appliance a spillage test should becarried out to ensure the combustion applianceis operating safely. Testing to the followingguidance will satisfy this requirement -

i. for a solid fuel appliance, BREInformation Paper IP 7/94;(NOTE: An extract fan should not befitted in the same room as an open-flued solid fuel appliance.)

ii. for an oil-fired appliance, Clause4.4.7 of BS 5410: Part 1: 1997 andOFTEC Technical Information NoteTI/112; and

iii. for a gas-fired appliance, Clause4.3.2.3 of BS 5440: Part 1: 1990.

P6 Fire safety

The provision of fire precautions in an HMOshould be based on a risk assessment carriedout by or on behalf of the applicant, andreviewed by the relevant officers inspecting theproperty. The following benchmark standards

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should not be seen as either a maximum or aminimum, but are intended to provide areference point for an “average” HMO. Theyshould be applied flexibly, taking into accountthe physical features of the property and thetype of occupants in each case. Officers shouldalways give consideration to alternativeapproaches, where these can provide anequivalent level of safety.

P6-1 Detection and giving warning in case offire.

P6-1.1 More than 6 residents

An HMO with more than six residents should beprovided with a suitable fire detection and alarmsystem complying with BS 5839: Part 1: 2002Category L2.

P6-1.2 Up to 6 residents

An HMO with up to six residents should beprovided with either a suitable fire detection andalarm system complying with BS 5839: Part 6:1995, Grade D, Type LD3. Alternatively, asystem as set out below may be used:

A. A smoke alarm should be located -

i. in a circulation area which will beused as a route along which toescape, within 7 m of the door to aliving room or kitchen and within 3 mof the door to a bedroom, thedimensions to be measuredhorizontally;

ii. where the circulation area is morethan 15 m long, within 15 m ofanother smoke alarm on the samestorey;

iii. if designed for ceiling mounting, atleast 300 mm away from any wall orlight fitting, or if designed for wallmounting, not less than 150 mm andnot more than 300 mm below theceiling;

iv. not less than 300 mm away from,and not directly above, a heater orair conditioning outlet; and

v. on a surface which is normally at theambient temperature of the rest ofthe room or circulation area in whichthe smoke alarm is situated.

B. Where more than one smoke alarm isinstalled they should be interconnected sothat detection of a fire by any one of themoperates the alarm signal in all of them.

C. A smoke alarm should be permanently wiredto a circuit. The mains supply to the smokealarm should take the form of either -

i. an independent circuit at the HMO’smain distribution board, in whichcase no other electrical equipmentshould be connected to this circuit(other than a dedicated monitoringdevice installed to indicate failure ofthe mains supply to the smokealarms); or

ii. a separately electrically protected,regularly used local lighting circuit.

Note: If smoke alarms are of a type thatmay be interconnected, all smoke alarmsshould be connected on a single finalcircuit.

D. The standby power supply for the smokealarm may take the form of a primarybattery, a secondary battery or a capacitor.The capacity of the standby supply shouldbe sufficient to power the smoke alarm whenthe mains power supply is off for at least 72hours while giving an audible warning ofmains power supply being off. There shouldremain sufficient capacity to provide awarning of smoke for a further 4 minutes.

An audible warning should be given at leastonce every minute if the capacity of the standby

ANNEX C

66

power supply falls below that required to satisfythe recommended standby duration when themains power supply is on; or persist for at least15 days when the mains power supply is off.

P6-2 Means of escape

P6-2.1 Emergency escape windows

A suitably designed and located emergencyescape window situated in an external wall orroof should be provided in every bedroom orliving room in an upper storey at a height of notmore than 4.5m above ground level. This can beachieved by a window, or a door (Frenchwindow) having an unobstructed openable areathat is at least 0.33m2 and at least 450 mmhigh and 450 mm wide (the route through thewindow may be at an angle rather than straightthrough). The bottom of the openable areashould not be more than 1100 mm above thefloor.

Any lock fitted to an emergency escape windowmust be capable of being opened from theinside without recourse to a key.

P6-2.2 External escape routes

Where the escape from an HMO involves anexternal stair, balcony or flat roof, it should notbe threatened by fire or smoke issuing from anydoor, window or ventilator in the proximity of theescape route.

P6-2.3 Fire doors

A fire door in an HMO should be self-closing. Itmay well be that existing solid timber doors, ifwell fitting, will provide the equivalent of 30minutes fire resistance (integrity).

P6-2.4 Means of escape from HMOs which arenot flats or maisonettes

In an HMO which is not a flat or maisonette andwhich has a storey at a height over 4.5m:

i. every stair should be enclosed in fireresisting construction having 30 minutes

fire resistance (integrity and insulation)and any door in the enclosures shouldbe a fire door with 30 minutes fireresistance (integrity),

except -

a stair in an HMO with a storey at aheight exceeding 4.5 m by one storeywhich does not contain a living room,bedroom, or kitchen;

and

ii. every storey at a height of more than7.5 m should be provided with anexit through a door other than itsmain entrance.

P6-2.5 Means of escape from HMOs which areflats or maisonettes with no more than 2 storeys

A. An HMO which is a flat or maisonette with astorey at a height of more than 4.5 m should beplanned so that either:

i. it is provided with an exit through adoor other than its main entrance; or

ii. all living rooms and bedrooms areentered directly from a circulationspace enclosed in fire resistingconstruction having 30 minutes fireresistance (integrity and insulation)and any door in the enclosuresshould be a fire door with 30minutes fire resistance (integrity),and the distance to be travelled fromany door of any living room orbedroom to the exit is not more than9 m; or

iii. the distance to be travelled from anypoint within the HMO to the exit isnot more than 9 m and the directionof travel is away from cookingfacilities; or

iv. sleeping accommodation, and thatpart of the circulation area which

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serves the sleeping accommodationand the exit to the flat, is separatedfrom any other living room or kitchenby a construction providing at least30 minutes fire resistance (integrityand insulation); and

(a) any door in this construction is afire door with 30 minutes fireresistance (integrity), and

(b) if that HMO has a storey at aheight of more than 11 m and thedistance to be travelled within the flatfrom any point to the exit is morethan 15 m, there is an exit through adoor, other than its main entrance,from the living accommodation.

B Where an HMO is within a building and onlyhas a single escape route which relies upon acommon stair, then there should be a lobbyenclosed by walls having 30 minutes fireresistance (integrity and insulation) within theHMO which protects access to that escaperoute, if:

i. there are more than 10 residents, or

ii. there are more than 6 residents andany storey in the building is at aheight of over 7.5m, or

iii. there are 6 or less residents and:

(a) any storey in the building is at aheight of over 11m; or

(b) there are more than fourdwellings or HMOs on any storey.

Doors in the wall should be fire doorsand have 30 minutes fire resistance(integrity). A lobby is not required on thetop storey of a building. [The lobby maybe the same as the circulation spacerequired to be enclosed under paragraphA.ii above.]

C. A wall with an adequate degree of fireresistance should be provided between theHMO and any other part of the samebuilding. An adequate degree of fire safetyis:

i. 30 minutes (integrity and insulation)in buildings with no storey over 7.5mabove ground; and

ii. 60 minutes (integrity and insulation)in buildings with any storey over7.5m above ground.

Doors in the wall should be fire doorsand have an adequate degree of firesafety (integrity only). [If a circulationspace enclosed with fire resistingconstruction is required, and a lobby isprovided with the fire safety requiredunder paragraph A.ii above or a lobbywith fire resistance is provided underparagraph B above, then the fire doorsneed not have more than 30 minutes fireresistance (integrity).]

D. A floor between the HMO and any other partof the same building should have any holesor gaps adequately fire-stopped.

E. Where the escape route from the front doorof the HMO is within the building it shouldlead by way of circulation space or stairwaydirectly to the outside.

F Any part of an escape route from the frontdoor of the HMO which is within the buildingshould be provided with artificial lighting.

P6-2.6 Means of escape from HMOs which areflats or maisonettes with two or more storeys, ofwhich one is at a height of more than 4.5 m

Where the maisonette or flat has two or morestoreys, of which one is at a height of more than4.5m, additional precautions should be taken asfollows:

ANNEX C

68

A. If there is accommodation on more than onelevel it should be planned so that -

i. all living rooms or bedrooms areentered directly from a circulationspace enclosed in fire resistingconstruction having 30 minutes fireresistance (integrity and insulation)and any door in the enclosuresshould be a fire door with 30minutes fire resistance (integrity);and

ii. where any storey is at a height ofmore than 11 m there is -

a. an exit through a door other thanits main entrance from each storeyother than the entrance storey, or

b. an exit through a door other thanits main entrance from eachbedroom.

B. If there is accommodation on only one level,but the HMO is entered from a storey belowthe level of the accommodation it should beplanned so that -

i. an exit through a door other than itsmain entrance is provided; or

ii. all living rooms or bedrooms areentered directly from a circulationspace enclosed in fire resistingconstruction having 30 minutes fireresistance (integrity and insulation)and any door in the enclosuresshould be a fire door with 30minutes fire resistance (integrity) andthe distance to be travelled from anydoor of a living room or bedroom tothe head of the internal stair is notmore than 9m; or

iii. the distance to be travelled from anypoint within the HMO to the head ofthe internal stair is not more than 9m, and the direction of travel is awayfrom cooking facilities.

C. If there is accommodation on only one level,but the HMO is entered from a storey abovethe level of the accommodation it should beplanned so that an exit through a door otherthan its main entrance is provided from thelower storey.

P6-2.7 Means of escape from HMOs which arein basements

A. A basement HMO, or an HMO with abasement storey, which contains a bedroomor living room should be provided with anexit through a door other than its mainentrance. This alternative exit may provideaccess to a space below the adjoiningground from which there is access to groundlevel.

B. A stair within the HMO serving the basementstorey should be enclosed in fire resistingconstruction having 30 minutes fireresistance (integrity and insulation). Such afire resisting enclosure serving a basementstorey should be separate from any fireresisting enclosure protecting a stair servingthe remainder of the HMO. Any door in suchfire resisting enclosures should be a fire doorwith 30 minutes fire resistance (integrity).

In this context a basement storey is onewhich is below the lowest storey in whichthere is an entrance from the level of theadjoining ground.

P6-3 Internal linings

In an HMO all circulation areas and all kitchensshould have walls and ceilings which are noworse than Class 1 for the surface spread offlame as set out in BS 476: Part 7: 1987.

P6-4 Emergency lighting

In any HMO with two or more storeys and morethan six people, the escape routes within theHMO should be provided with adequateemergency lighting.

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P6-5 Fire-fighting equipment

The most useful form of fire-fighting equipmentfor general fire risks is the water-typeextinguisher. One such extinguisher should beprovided for approximately each 200 squaremetres of floor-space, with a minimum of oneper floor. Extinguishers should normally belocated in conspicuous positions on escaperoutes preferably near exit doors.

The local fire authority can advise on areas ofspecial risk which may need carbon dioxide, drypowder or other types of extinguisher. In anycase a light duty fire blanket should be providedin each communal cooking area.

P6-6 Ducted warm air heating

If an HMO has a storey at a height of more than4.5 m or has a basement storey and is providedwith a system of ducted warm air heating itshould be designed to reduce the risk of fire andsmoke spread as follows:

i. transfer grilles are not fitted betweenany room and the entrance hall orstair;

ii. supply and return grilles are notmore than 450 mm above floor level;

iii. if warm air is ducted to an entrancehall or stair, the return air is ductedback to the heater;

iv. if a duct passes through any wall,floor, or ceiling of an entrance hall orstair, all joints between the duct andthe surrounding construction aresealed;

v. there is a room thermostat in theliving room, at a height between1370 mm and 1830 mm, with amaximum setting of 35o C, whichturns off the heater and anycirculation fan if the ambienttemperature exceeds that setting;and

vi. if the system recirculates air, smokedetectors are provided in everyextract duct to cause therecirculation of air to stop and directall extract air to the outside of thebuilding in the event of fire.

P6-7 Mechanical ventilation systems

Where a mechanical ventilation system isprovided in an HMO with more than sixresidents the system should be designed toreduce the spread of fire and smoke as follows:

i. the system is of a suitable designand construction; and

ii. it ensures, so far as is practicable,that air movement is directed awayfrom escape routes; and

iii. ducts within the system are of asuitable design and construction;and

iv. where a ventilating duct servingsleeping accommodation penetrateswalls between sleepingaccommodation, either above orbelow the ceiling, the duct isadequately protected to ensure that itcannot permit the spread of fire. Anyautomatic damper or shutter or othersealing device in the duct isactivated by smoke.

ANNEX D

70

HOUSES IN MULTIPLE OCCUPATION WORKING GROUP:

MEMBERS OF CORE GROUP

Elizabeth Beattie Director of Accommodation Services, Edinburgh University

David Bookbinder Policy and Practice Co-ordinator, Scottish Federation of Housing Associations

Ian Bruce Chief Executive, Abbeyfield Society for Scotland

Chris Campbell Scottish Council for Single Homeless

Cathy King Director of Care Housing, City of Edinburgh Council

David Dalziel Chief and Assistant Deputy Chief Fire Officers Association (Deputy Firemaster, Grampian Fire and Rescue Service)

John Docherty Team Leader, HMO Unit, Building Control and Public Safety, GlasgowCity Council

Stuart Neave HMO Solutions Ltd

Lydia Okroj Scottish Women’s Aid

Yvonne Oliver Paralegal, Legal Services, Perth and Kinross Council

Stephen Peasnall Scottish Association of Landlords

Robert Rome Private Sector Housing Officer, HMO Licensing and Inspection,

Environmental Health, Dumfries and Galloway Council

Nuala Toman Research and Policy, Shelter Scotland

Jayne Whittingham Edinburgh Central Citizens Advice Bureau

Scottish Executive

Alan Cameron Planning

Eleanor Clark Communities Scotland

Roger Harris Housing (Chair)

Brian Mackenzie HM Fire Services Inspectorate

Kelvin McBryde Housing (Secretary)

Paul Stollard Building Standards

Linda Sheridan Building Standards

Jean Waddie Housing

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HOUSES IN MULTIPLE OCCUPATION WORKING GROUP:

MEMBERSHIP OF REFERENCE GROUP

Professional Associations

Chartered Institute of Housing

Royal Environmental Health Institute of Scotland

Royal Institution of Chartered Surveyors

Scottish Association of Chief Building Control Officers

Landlords’ and property managers’ organisations

Association of Residential Letting Agents

National Federation of Residential Landlords

Property Managers Association Scotland

Small Landlords Association

Education sector

Association of Scottish Colleges

Association for Student Residential Accommodation

Coalition of Higher Education Students in Scotland (CHESS)

National Union of Students

Housing, Community and Care interests

Albyn Housing Society

Association of Directors of Social Work

Blue Triangle Housing Association

Church of Scotland Board of Social Responsibility

Glasgow Housing Association

Hanover (Scotland) Housing Association

Key Housing Association

Lister Housing Co-operative

SACRO – Safeguarding Communities, Reducing Offending

Scottish Association for Mental Health

Scottish Commission for the Regulation of Care

NHS

Scottish NHS Confederation

Equality groups

Positive Action in Housing

Scottish Disability and Housing Network

9 780755 942404

ISBN 0-7559-4240-X

© Crown copyright 2004This document is also available on the Scottish Executive website:www.scotland.gov.uk

Astron B36112 07/04

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