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MANDATORY LICENSING OF HOUSES IN MULTIPLE OCCUPATION: GUIDANCE FOR LICENSING AUTHORITIES

PART 2: ADMINISTRATION OF MANDATORY HMO LICENSING

The purpose of HMO licensing is to improve standards in this part of the private rented sector, in terms of both physical accommodation and the management of tenancy issues. HMOs provide an important supply of housing, particularly for some groups of people, such as students, transient workers, and those who require support in a homely setting. However, many HMO tenants are unaware of their rights, or have few housing choices, and are therefore vulnerable to exploitation. While the great majority of landlords want to provide good quality housing and have good relationships with their tenants, the HMO sector can be attractive to a minority who are interested only in profit with the minimum of effort.

It is therefore important for a number of reasons that the administration of HMO licensing should be well co-ordinated and make best use of council resources. Local authorities are encouraged to engage positively with landlords who are keen to maintain high standards and implement good practice. Clearly it is easier to maintain good relationships where landlords feel they are receiving a good service in response to licence applications and queries, and where they feel their licence fees are well spent. Those who have made the effort and outlay to obtain a licence also want to see that those who have not are pursued. If the procedures for dealing with applications are efficient, and if a lighter touch is employed in relation to landlords who have built up a track record of maintaining high standards, the licensing authority will be able to devote more resources to identifying and dealing with those landlords who operate illegally and let unsafe accommodation.

2-1: CO-ORDINATION AND PREVENTING DUPLICATION

Processing an application for an HMO licence requires the involvement of officers from several different 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 is well co-ordinated, in order to provide best value for the local authority and partner agencies, and an efficient, consistent service to licence applicants. Co-ordination needs to take place at all levels.

Administration

In terms of administration, to provide an effective service to the public, it is usually best to have a clearly identified team as a single point of contact for enquiries, applications, objections and complaints. Information from other council departments or partner agencies about suspected HMOs, or suspected breaches of conditions, could also feed into this point. As a central point of co-ordination, this team could also have responsibility for distributing information about applications to the other officers whose views are required, organising joint visits to the property, collating reports, and organising action on complaints, as well as all correspondence with applicants and objectors. Sharing of information may be facilitated by a computerised record system which all relevant officers can access to view the status of applications and keep informed of input from other areas.

2-1: CO-ORDINATION AND PREVENTING DUPLICATION

Management

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

Technical

Although standards may differ in their content, it is vital that a consistent approach is applied to all landlords, and that each landlord receives consistent information about what is required of him. There must therefore be a shared understanding among those officers involved in inspecting properties and processing applications. Authorities will wish to put procedures in place to ensure that any differences of view between the various disciplines involved, about the standards to be applied or methods of satisfying the standards, can be resolved centrally and the agreed position clearly communicated to all inspecting officers. Discussions may also be required where new situations arise, either a type of HMO which has not previously been encountered, or new technology or a new approach which may offer a different way of satisfying standards. It may be possible for both technical and management issues to be addressed by the same group.

Policy

The development of policy on HMO licensing should be considered by councillors and senior officers from the various relevant departments within the council. It is also likely to be helpful to involve a representative of the Fire Brigade. Operational officers need to be aware of the views of councillors to ensure that their advice to landlords is in line with the requirements of the Licensing Committee.

Requirements of the Licensing Committee

The power to grant licences under the Civic Government (Scotland) Act 1982 belongs to the licensing authority, and is usually exercised through a Licensing Committee. Committees may wish to consider their procedures for dealing with licence applications, to ensure that an appropriate balance is struck between detailed scrutiny of reports and efficient use of councillors' and officers' time.

Licensing Committees may consider delegating authority to a senior officer to grant HMO licences in straightforward cases. Delegating authority in this way can bring advantages on all sides; it reduces the number of cases for the Committee to hear, reduces the time spent by officials preparing and presenting cases to the Committee, and enables applicants to receive a decision without waiting for the next Committee meeting. It is for each authority to decide the extent of any delegation, but Committees may wish to see only those applications for which officials recommend refusal, and those against which there are significant objections.

Where applications are brought to the Licensing Committee, reports will need to be presented by officials. The Committee's requirements in this respect will have a significant effect on the process of dealing with applications at all stages. If several officers are required to report directly to the Committee, they will probably each wish to personally inspect the premises to which the application relates. Committees may wish to consider whether they might instead accept a single combined report presenting the views of all departments and agencies. This could give more scope for joint working and reduce duplication of effort by, for example, inspections being undertaken by a single officer in straightforward cases (see section 2-2.1)

2-2: VERIFICATION OF COMPLIANCE WITH LICENSING REQUIREMENTS

When an initial application for an HMO licence is made, the licensing authority will determine the standards which need to be met, in terms of physical features, management, and the "fitness" of the owner and manager. Some of these standards will be the same for all HMOs, others will be set individually, depending on the particular circumstances. Guidance on standards and their application is contained in Part 3. The licensing authority will need to be satisfied that these standards are met before it grants or renews the licence. The conditions of the licence will require, among other things, that those standards are maintained throughout the period of the licence.

There are three ways in which the licensing authority can obtain evidence to verify that the standards are met and licensing conditions complied with:

• Direct inspection involves officers of the licensing authority checking standards in person, by inspecting the property, scrutinising leases, gathering evidence from tenants and neighbours about the management of the property, and so on.
• Evidence from third parties can confirm that certain requirements have been checked by an appropriate certifier or are controlled under other forms of regulation, and need not be checked again.
• Licensee's declaration (see section 2-2.3) describes a process by which the owner of the property confirms to the licensing authority, in a legally binding document, that the licensing requirements are being met.

Evidence will usually be gathered by a combination of two or three of these methods. For some requirements, only a third party can provide the necessary evidence; for example, a gas safety certificate must be provided by a CORGI registered certifier. For other aspects, such as tenancy agreements provided by an RSL, the licensing authority could inspect directly, but this would generally be unnecessary duplication of regulation (in this case with the work of Communities Scotland) - see section 2-5 on co-ordination with other regulation. In accepting evidence from third parties, the licensing authority may wish to check the certifier's credentials, or to check that the licensee has the registration they claim. If it is not practicable to do this in every case, the authority could consider establishing a system of random sampling.

2-2.1 DIRECT INSPECTION OF PHYSICAL STANDARDS

Licensing authorities normally wish all HMOs to be inspected at initial application, to check that the requirements of both the licensing authority and the fire authority are met, and to recommend any alterations. In many cases they will also need to be inspected at the renewal stage. Even where licensees' declarations are accepted for renewals, following the procedure proposed in section 2-2.3, there will be random checks and scheduled inspections at agreed intervals. Authorities will wish to consider the most efficient way of arranging inspections. They will be able to concentrate more effort on enforcement action against landlords who do not comply with licensing, if they can reduce the time spent on re-inspecting properties where no problems have been reported.

Streamlining the inspection process is also likely to be welcomed by landlords and tenants. Residents understandably prefer to minimise the number and frequency of officials tramping in and out of their home. For the owner, there is the cost and inconvenience of being present, or arranging for a representative to be present, at each inspection, and it may be difficult or even intimidating to deal with a group of several officers. If there appears to be a lack of co-ordination or duplication, those affected by the licensing regime may also feel that fees (and consequently rents) could be reduced by more efficient working.

There are three areas in which inspection and reporting processes can be streamlined: the number of visits made, the number of officers visiting the property, and the number of reports produced.

Multiple officer inspection

Multiple inspection visits by members of different departments on different occasions are unlikely to be an efficient use of resources. As noted above, they are disruptive to residents of the property and to operators. Separate inspections do not give officers insight into the other issues involved in HMO licensing, and may lead to inconsistent advice being given where standards overlap, especially between fire and building control officers. Wherever possible, a single inspection visit should be arranged.

A single inspection visit may be undertaken by multiple officers. This is the most common approach at present, which saves both the landlord and tenant the inconvenience of repeated visits. It has the advantage that all the relevant expertise is on hand to advise the landlord directly. Co-ordination at management and technical levels should ensure that any conflicts between the different disciplines are resolved before advice is provided to the landlord, and officers will have more insight to enable them to take account of wider issues. However, it can be difficult to arrange joint visits, and this approach does not reduce either the number of people entering the tenant's home, or the total amount of officers' time expended. Landlords may also be unclear who to contact for follow-up specialist advice. Inspecting officers should explain their separate responsibilities and ensure the landlord has contact details for future use.

Single officer inspection

An alternative approach which licensing authorities may consider adopting is to have a single officer undertake the inspection visit in most cases, with specialist advice available from other departments where necessary. Those other departments would make an initial desk-based assessment of the application to decide whether the property presented particular risks or unusual features which would need them to attend. If not, they would advise the inspecting officer of the standards required, and he would consult with them if any unexpected issues arose during the visit. In order for this method to be effective, the inspecting officer must have sufficient training in all disciplines to be able to identify possible problems which require specialist consideration, and clear procedures must be established for consulting with specialists. There is also a risk that the inspecting officer would need to change their advice to the landlord following consultation; where necessary, it should be made clear to the landlord that the inspecting officer's advice is provisional.

Local authorities may consider establishing single enforcement officers for HMO licensing, who would be equipped to carry out inspections without other support. However, concerns have been expressed about the ability of any one officer to have sufficient expertise in all the relevant disciplines. The establishment of specialist HMO officers could also detract from the flexibility of departments such as Environmental Health and Building Control to adapt to changing priorities.

If the licensing authority chooses to use single officer inspections, either with additional specialist advice or by a trained single enforcement officer, they must also consider officers' personal safety and the possible need for corroboration of conversations with the landlord. These issues should be judged on an individual basis, taking into account the circumstances of each visit, in line with the authority's policies and procedures for other services.

Reports

Where the inspection visit is undertaken by multiple officers in a joint visit, either a single report or individual reports may be produced. It is likely to be most helpful to the landlord if he receives a single note of the officers' findings. This will avoid any confusion if, for example, both building standards and fire officers comment on the same issue. The form of reporting to the Licensing Committee will depend on the Committee's wishes, but again it is suggested that a single report might be considered. This would draw together contributions from each discipline in a standard format, addressing each issue in turn.

Sensitivity in inspection visits

It is important for all inspecting officers to be aware that they are visiting someone's home, and to behave with sensitivity to that situation. Both the scheduling of visits and the behaviour of inspecting officers may need to take account of religious and cultural issues. Language issues may also arise, with either tenants or landlords, and interpreting services (both for other languages and for special communication needs) should be made available where necessary.

Tenants should have been made aware of the inspection by the landlord, but it may be necessary to explain again why officers need to enter their rooms. The landlord or tenants may be distressed or angry if changes to the property are suggested, so officers should be trained to deal sensitively with difficult reactions. Where tenants are particularly vulnerable, for example in a women's refuge or accommodation for people with community care needs, officers may wish to make special arrangements, being guided by the landlord or support workers. It may help, for example, to schedule extra time to meet with the tenants in a communal area before inspecting their private rooms.

2-2.2 DIRECT INSPECTION OF TENANCY MANAGEMENT STANDARDS

Local authorities are encouraged to place greater emphasis on ensuring high standards of tenancy management in HMOs than has generally been the case to date. Confirmation that tenancy management standards are satisfactory should be part of the processing of every licence application, and any deficiencies should be highlighted to the Licensing Committee or officer with delegated authority to determine applications. However, this is not an issue which lends itself to "on-site" inspection, particularly not at the same time as the physical inspection. A different range of skills are required, and an awareness of different issues.

Guidance on key elements to be included in tenancy or occupancy agreements, and key facets of tenancy management, is given in section 2-3.2. Much of this can be verified as a desk-based exercise, checking tenancy agreements, information provided to occupants, rent records, etc. If any problems are identified in this area, they may be discussed with the landlord either by telephone or at the local authority office. It should be noted that it is not necessary for licensing authorities to check the contents of tenancy or occupancy agreements given by Registered Social Landlords, because the form of these agreements is checked by Communities Scotland - see section 2-5.

Contact with tenants

Local authorities are expected to make tenants aware of the process of HMO licensing and the standards to be expected, and offer a contact point to raise any concerns. Tenants in HMOs often have little awareness of their rights and low expectations of standards, and they may be reluctant to express any concerns for fear of harassment or eviction. For this reason it is not appropriate to meet with tenants and the landlord at the same time. Experience has shown that trying to contact tenants in person at the HMO is rarely successful, and sending letters addressed to each tenant is better than simply leaving leaflets at the property. In addition, a passive approach usually elicits few responses from tenants dissatisfied with the accommodation or management. A more effective strategy may be to ask tenants to return a questionnaire asking about key tenancy management issues. If any problems are identified through this process, they must be addressed with the landlord, but steps should be taken to ensure that the landlord does not attach any blame to individual tenants.

All contacts with tenants must take account of possible barriers to communication such as first languages other than English, learning disabilities or literacy problems. Licensing authorities might wish to consider working in partnership with equalities and adult literacy groups in their area, who may be able to help both in providing suitable materials or interpreting and advocacy services, and in getting information about HMO licensing to their users, members or communities.

If tenants express any concerns which require further investigation, they should be invited to discuss them. This discussion should normally be conducted by someone with an awareness of housing issues and the skills to deal with a client who may be distressed or nervous. It is usually best to conduct such discussions away from the HMO. Procedures should also be in place to refer tenants to other sources of advice if they raise issues which are not directly connected with licensing, such as debt or mental health problems. If the tenant complains of criminal behaviour, either in connection with the management of the HMO or by residents or visitors to the property, they should be encouraged and supported to report that to the police.

2-2.3 VERIFICATION USING LICENSEE'S DECLARATION

While direct inspection may be considered the most reliable method of verification, it is time consuming, both for the licensing authority and for the property owner or manager. Where a property has been shown to meet the standards initially, and there is no reason to think those standards have not been maintained, it may not be necessary to carry out a full inspection when the licence comes up for renewal. The following paragraphs outline how licensees' declarations could be more widely used, enabling officers to spend more time enforcing the licensing system and targeting properties which have been identified as not meeting the required standards.

In considering the suggestions made here, licensing authorities should keep in mind their duty to use their discretion in a reasonable manner, and to determine each application on its own merits, making further inquiries as they think fit. In the general terms set out here, it is felt that a licensee's declaration scheme can meet the requirements of the legislation, but it is for each authority to determine that its own detailed procedures and policies are appropriate.

The decision to verify compliance using a licensee's declaration

The purpose of licensing is to ensure that all HMOs provide a determined standard of accommodation and management. The risk to the licensing authority in accepting a licensee's declaration as evidence of compliance, is that the declaration may be false or mistaken, and a property which does not meet those standards may therefore be licensed. That risk has to be balanced against the likelihood of landlords continuing to operate without a licence, or to breach the conditions of their licence, if the authority does not take steps to release staff capacity for enforcement activities.

It is important to note that the licensee is responsible for complying with the conditions of the licence, and for the content of any declaration to the licensing authority that they are doing so. It is an offence to make a false statement in an application for a licence or renewal, or to fail to comply with a condition of a licence. The issue for the licensing authority to consider, therefore, is whether they can be reasonably confident that a licensee's declaration will be accurate. The scheme should provide appropriate procedures for the authority to satisfy itself of this, supported by systems for monitoring.

When might a licensee's declaration be accepted?

When the first application is made for an HMO licence for a particular property, direct inspection will normally be required, in combination with relevant evidence from third parties, for officers to be satisfied that appropriate physical standards for that property are met. Issues of possible nuisance to neighbours and appropriate preventive measures also need to be considered directly in relation to the location and characteristics of each property. It would therefore not normally be appropriate to accept a licensee's declaration as the only evidence of compliance at first application.

Once an initial licence has been granted, the issue is one of maintaining standards and operating in accordance with the licence conditions. This includes:

• maintenance of the property and fittings;
• periodic testing of equipment to ensure fire, gas and electrical safety;
• operating good tenancy management practices;
• dealing with any complaints from tenants or neighbours.

Since these are continuing activities, the local authority would normally need to have evidence of a track record of compliance before it would accept the licensee's declaration without further verification.

Local authority practices vary in terms of how often compliance must be checked, either for renewal of the licence or through interim
re-inspections during the period of the licence, and the length of the required track record will vary accordingly. The box overleaf provides a suggested programme for qualification which could be applied over any timescale, whether "occasions for verification" occur at one-year, 18-month or three-year intervals. Licensing authorities which normally issue all licences for one year might also consider issuing three-year licences to landlords with a good track record, with interim inspections as required. By reducing the frequency of the formal application process, with the associated paperwork and hearings, this could be seen by landlords as a significant reward.

This programme is, of course, only a model. It can be adjusted for individual circumstances, or authorities may take a different approach if they prefer. While many requirements are specific to each property, others, particularly in terms of tenancy management, relate to the landlord's attitudes and procedures. If the landlord is well known to the local authority, holding licences for other properties, it might be possible for his declaration on these points to be accepted at Stage 1. An example might be a declaration that he is using the same form of tenancy agreement, which has already been approved by the authority for other properties.

In some cases, a property may be considered acceptable, but not fully meeting the local authority's preferred standards. In these cases, particularly where a landlord has a large portfolio of property which needs some upgrading, a licence may be granted on condition that an agreed programme of works is carried out, over a number of years, to bring the properties up to standard. In such circumstances, approval to use a licensee's declaration need not be delayed until the works are completed to meet the full standard. The licensee would simply confirm in his declaration that work is progressing in line with the agreed plan.

What form would a licensee's declaration take?

A licensee's declaration is a form of evidence that the conditions of a licence are being complied with. It must therefore be based on a statement of the relevant requirements, such as the number of occupants permitted, the facilities and fire precautions required, and the key tenancy management issues. One approach could be for the licensing authority to provide the licensee with a questionnaire, asking whether each condition of the licence for that property is complied with and the relevant standards met. There should be space for the licensee to explain, if any of the conditions are not met, what he is doing or has done to rectify the situation, and a legal declaration at the end that the information given is correct to the best of his knowledge. An example questionnaire is provided at Annex B. Alternatively, the licensing authority may prefer to rely on a simple statement that the required standards have been met and no alterations have occurred since the last grant of licence.

It is not expected that the licensee will require any particular training or technical expertise in order to complete a declaration. The licensing authority sets the standards to be maintained, which may for example include prohibiting the use of an internal room for sleeping, requiring fire doors to be upgraded, or a tenancy agreement to be altered. The licensee needs only to confirm that nothing has changed: the internal room is still kept as a storage cupboard, the approved doors have not been damaged or changed, the same tenancy agreement is being used. For equipment which requires maintenance by a qualified person, such as a fire detection system or gas appliance, the third-party evidence that maintenance or inspection has been carried out at the required intervals should be attached to the declaration.

The holder of the licence is the owner of the property. Although any manager will also be named on the licence, the owner is ultimately responsible for compliance with the licence conditions, and should normally sign the licensee's declaration. However, in public sector HMOs it is often the case that the property is leased, for example by a housing support provider from a Registered Social Landlord or the local authority. Tenancy or occupancy agreements are with the operating organisation rather than with the owner. In these cases it may be more appropriate for the operating organisation to submit the declaration, with the owner's agreement. If the owner / operator is not an individual, a proper officer of the organisation must sign the declaration.

Complaints and objections

However the licensing authority obtains evidence about compliance with licensing conditions and relevant standards, it does not affect the requirement on the licensing authority to entertain objections to any application for renewal of a licence, and its right to make such reasonable inquiries as it thinks fit in response to such objections. If, as a result of such inquiries, a licensee's declaration is found to be inaccurate, it is not necessarily the case that the licence should not be renewed. The licensing authority should consider all the circumstances, whether there was any intentional deception, and whether any breach of licensing conditions is sufficiently severe to warrant loss of the licence. However, it is likely that the licensee would have to repeat the programme to qualify to use the licensee's declaration. The licensing authority might also set a period during which compliance must be verified by direct inspection, before the qualification programme can start again.

Receipt of a complaint relating to a property where the licensee's declaration is used would not necessarily trigger a return to direct inspection. The licensing authority should consider all the circumstances, including the nature of the complaint and the landlord's response. It may be necessary to visit the premises to check that the issue has been dealt with, but if the landlord has responded promptly and effectively, his qualification to use the licensee's declaration should not be affected. A record of repeated complaints may indicate more serious problems, which the licensing authority would wish to consider more closely.

Who could qualify to use licensee's declaration?

In considering who should be allowed to provide evidence of their compliance with licensing requirements by declaration, the key issue is that the licensing authority must be reasonably confident that the licensee's declaration will be accurate. Any type of landlord could be included in the scheme, once they have established the necessary track record. However, in its initial stages at least, licensing authorities are likely to be more comfortable with accepting a declaration from a landlord who is subject to Landlords, Universities and Colleges and NHS bodies. Registration with the Care Commission will also provide some reassurance that management structures and procedures have been inspected. (A project is under way to examine where the requirements of Communities Scotland, the Care Commission, Supporting People service review and HMO licensing overlap.) It is for each authority to determine whether they are willing to accept a licensee's declaration from any private sector landlords. In any case, each property must be treated on its individual merits, and the landlord must establish a track record in order to qualify.

2-3: IDENTIFICATION, ENFORCEMENT AND COMPLAINTS

2-3.1 IDENTIFYING HMOS

It is a criminal offence to operate an HMO without a licence, and the responsibility therefore lies with the landlord to inform himself of the legislation and apply for a licence before the HMO is occupied. However, there is clearly an expectation, from Ministers, licensed landlords and local communities, that licensing authorities will take more active steps to publicise the licensing scheme and try to ensure that all HMOs become licensed. A wide range of methods and sources of information can be used. The most appropriate techniques will depend on the character of the local authority area and the types of HMOs found there. Licensing officers are encouraged to share their experiences with those from other authorities who face similar issues.

• Most landlords will be happy to comply with the law when they know about it. Advertising the scheme and making sure that information is readily available from relevant information points is a primary way of reaching this group. Active engagement with landlords groups or forums can also be helpful.
• Identifying individual HMOs is more difficult. Door-to-door surveys may be useful in urban areas, but they require a high level of resourcing. Various written sources may be available, including local advertising of rooms for rent. In using official records, licensing authorities must ensure that they comply with data protection and human rights legislation.
• One of the best sources of information, if the landlord does not come forward, is people who live in and around or visit HMOs. Enquiries from current or prospective tenants, complaints from neighbours and intelligence from other departments or partner agencies who visit the property in the course of their activities can all be harnessed to build up a database of possible HMOs for further investigation.

2-3.2 ENFORCEMENT ACTION

In most cases where an unlicensed HMO is identified, the appropriate action will be for the licensing authority to contact the owner, inform them of the licensing requirement and request that they submit a licence application within a set period of time. However, there will inevitably be some landlords who do not respond to such approaches, and against whom enforcement action must be taken. There will also be some who apply for a licence but are refused. These cases must be monitored to ensure the property does not continue to operate without a licence.

A landlord who is unwilling or unable to obtain a licence may agree to cease operating the premises as an HMO. However, it may not be possible to do this immediately, because of the terms of tenancy agreements, either statutory or contractual. It is considered likely that this could be seen as a reasonable excuse for operating without a licence for a time, provided that the landlord takes steps to bring about the termination of the tenancies as soon as possible. The local authority might consider working with the landlord to agree low-cost temporary measures to improve conditions in the property in the meantime. For example, battery-operated smoke alarms could be fitted, or an agreed type of portable heater provided in the absence of safe, fixed, space heaters.

The ultimate sanction in the licensing scheme is prosecution. Licensing officers should take care, in carrying out inspections or investigations into suspected unlicensed HMOs, that any evidence is collected in such a way that it could be admissible in court, if necessary. It may be helpful for officers to meet with the Procurator Fiscal to discuss what he or she would look for in preparing a case. Reports to the Procurator Fiscal - a Guide for Specialist Reporting Agencies (sixth edition, 2004) provides guidance on all the information to be included in reports to the Procurator Fiscal. Authorities should also have a note of the relevant charge codes and wording for the relevant offences.

Prosecution can be a lengthy process, and tenants should not be subject to dangerous or unfit conditions in the meantime. If necessary, licensing authorities should consider using other powers, or asking the fire authority to use their powers, under housing, environmental health or fire safety legislation, to require improvements to be made or to close the property from occupation.

2-3.3 DEALING WITH COMPLAINTS

The licensing authority is likely to receive complaints about HMOs or suspected HMOs for a number of reasons. Tenants may make complaints about the condition of the property or the actions of the landlord. Neighbours may be concerned about the number of people in the property and their living conditions, or about noise and disturbance or anti-social behaviour attributed to the residents of the HMO or people visiting the property. In tenement situations, in particular, neighbours may also make complaints about maintenance or cleaning of common areas.

Licensing authorities should keep a record of complaints, and investigate where this is considered appropriate. Complaints may bring to light HMOs which the authority was not previously aware of. They may also lead to the discovery of breaches of licensing conditions. Where complaints are made about the behaviour of residents or visitors, officers should take steps to check that those people are indeed responsible for the problem, before contacting the landlord to ask him to take action.

In dealing with complaints about the behaviour of HMO residents, the local authority should keep in mind the need for the landlord to work through due process before tenants can be required to leave. Landlords should manage the property so as to ensure that tenants comply with the terms of their lease and do not interfere with the rights of neighbours to enjoy peaceful occupation of their homes. However, anyone can find themselves with a difficult tenant. The licensing authority should take account of how the landlord responds to complaints, as well as the complaint itself.

Serious complaints about an HMO may lead directly to enforcement action against the landlord. Alternatively, a record of more minor complaints about a particular HMO may have an effect on the licensing authority's decision when an application for renewal of the licence is submitted. It may be helpful to establish liaison arrangements with the police, and with officers carrying out the local authority's functions in relation to anti-social behaviour, since some complaints about HMOs may be made to them. Similarly, some complaints made to HMO licensing officers may be more appropriately dealt with by anti-social behaviour teams or police. Access to a full picture of complaints relating to the same property will provide a firmer basis for action by either agency.

2-4: FEES

The HMO legislation requires that the fees charged in relation to HMO licences, taken together with any grants for HMO licensing provided by Scottish Ministers, should cover the costs of all the activities required to carry out this function. Local authorities vary greatly in the number and type of HMOs in their area, and in how they arrange their licensing procedures, and this means it is not possible to give guidance on the level of fees to be charged. However, in setting their fees, licensing authorities should take into account the following activities: (Some authorities may not carry out all these stages.)

• Identification and awareness
• • Identifying possible HMOs
  • Issuing information about licensing
  • Answering enquiries about licensing and licensed properties
  • Printing of publicity leaflets
  • Enforcement activity leading to applications, including out of hours enforcement work
  • Officers presentations to interested groups, attendance at public meetings, etc.
  • Setting up and servicing regular liaison meetings with landlords, tenants, local residents, etc.
• Internal co-ordination groups - Member/Officer and Technical
• Processing applications and monitoring
• • Issuing licence application packs
  • Initial inspection of property to set standards, local authority and fire officers
  • Notification of licence applications in local newspapers
  • Circulation of applications to Councillors and local libraries
  • Input from Planning department
  • Scrutiny of lease, contact with tenants to ensure terms of lease are complied with
  • Subsequent inspection to ensure standards are met, before licence is granted
  • Dealing with objections to licence applications
  • Preparation of reports for licensing committee
  • Committee time
  • Dealing with appeals against licence decisions
  • Preparation and delivery of licences
• Monitoring and renewal
• • Handling complaints about licensed properties
  • Interim inspection during period of licence
  • Maintaining records / public register of licence applications
• Enforcement
• • Gathering evidence about unlicensed properties
  • Preparing reports for Procurator Fiscal
  • Attendance at court

It is suggested that licensing authorities make available to the public information on the activities covered by the licensing fee, to make clear all the activities which are involved in operating the system. It may also be helpful to make clear any charges made by the fire authority, if these are rolled up in the overall licence fee.

Local authorities take different approaches to structuring their fee levels. Some charge a flat fee, others use a sliding scale based on the number of occupants of the HMO. Some charge a lower fee for renewals; in other authorities, renewal licences are awarded for a longer period than initial licences, which can have an effect on the fee. Various discounts or methods of calculating fees are applied to landlords with large portfolios of property, such as Universities and colleges, particularly where the units are to a common design.

It is recommended that licensing authorities should consider a structure in which lower fees are charged for applications which require less work on the part of the authority. This would include those where the licensee is permitted to verify his compliance by declaration. Other renewals may also need less time spent on inspection than initial applications. Similarly, blocks of identical units and portfolios of property managed together are likely to bring economies of scale, and may be considered for discount arrangements.

2-5: CO-ORDINATION WITH OTHER REGULATION

HMO licensing applies to all properties which are the only or main residence of three or more unrelated people. This covers a wide range of circumstances, from a three-person shared flat to a 100-room hall of residence, hotel staff accommodation to very sheltered housing, Victorian tenements to new, purpose-built group homes. HMO operators are therefore involved in a range of activities which are subject to other regulatory regimes, in addition to HMO licensing.

Some of these other forms of regulation are clearly separate from the business of providing accommodation. For example, where meals are provided by staff, the operator must comply with requirements in respect of food safety, health and safety at work and employment law, but none of these affect the landlord-tenant relationship or the quality of tenants' accommodation. There are, however, a few forms of regulation which interact directly with HMO licensing. If these are not carefully handled, applicants and objectors may see them as duplicating the same controls, possibly with inconsistent results.

It is important to be clear that different regulatory regimes control different aspects of the activity, that each of them must be separately complied with, and that enforcement action can be taken if any one requirement is not met. It is helpful if HMO officers have a general understanding of the other forms of regulation which may be involved, so that they can advise an applicant to check these things. However, it is the individual's responsibility to ensure that they comply with the law in all respects, and that they do not start operating until all the necessary permissions, warrants or certificates are in place.

2-5.1 FIRE SAFETY

The fire authority is a statutory consultee for all licensing activities carried on in premises, under the Civic Government (Scotland) Act 1982, and fire officers are involved in checking that each HMO meets the required standards in terms of fire safety. However, the fire authority also has responsibility for the enforcement of fire safety requirements under a variety of other legislation applying to workplaces, hotels and premises licensed for other activities, including the sale of alcohol. If the HMO also falls into one of these categories, more stringent fire precautions may be required for that other use than would be the case for an unstaffed, purely domestic HMO.

The Scottish Parliament is currently considering the Fire (Scotland) Bill, introduced on 28 June 2004. This will, if passed, give fire authorities a new statutory responsibility for fire prevention and fire safety, and reform the current fire precautions legislation. This would consolidate all current responsibilities in the hands of the fire authorities and fire brigades. The fire authority would have an independent responsibility for enforcing fire safety issues in HMOs, separate from the licensing regime. It is to be hoped that the two regimes will continue to be closely co-ordinated, in order to offer an efficient service to HMO operators. However, licensing authorities will need to consider what changes 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 or Registered Social Landlords (RSLs), both of which have their landlord functions regulated by Communities Scotland. However, they are still subject to HMO licensing. Regulation by Communities Scotland deals with the organisation as a whole, and focuses mainly on governance, management planning and procedures, to assess the overall quality of services provided. In particular, it does not inspect the physical standards of individual properties.

Licensing authorities should, therefore, satisfy themselves as to the physical standards of HMOs operated by local authorities and RSLs as they would for any other landlord. The same licensing conditions in respect of tenancy management should also be applied, although it may be that less stringent checks are required on some aspects for a regulated organisation, for example in the proper handling of rent monies.

It is not necessary for the licensing authority to check the content of the tenancy or occupancy agreements issued by a local authority or RSL. Where a full tenancy is granted by a social landlord, this must by law be a Scottish Secure Tenancy or Short Scottish Secure Tenancy. Where these are not appropriate (as is usually the case with HMOs), they are expected to use the Model Occupancy Agreement for Shared Housing produced by the Scottish Federation of Housing Associations, the content of which is approved by Communities Scotland. Where accommodation is provided for a period of less than six months, it will be subject to the proposed minimum rights for hostel dwellers, when these come into force.

Communities Scotland has a network of Area Offices. Should HMO officers come across issues which they feel should be raised with the regulator, they should contact the local area office in the first instance. A list of contact details is available on Communities Scotland's website at http://www.communitiesscotland.gov.uk/Web/ Site/Contact/Area-Offices.asp

2-5.4 SCOTTISH COMMISSION FOR THE REGULATION OF CARE (THE CARE COMMISSION)

The Care Commission is the regulator for care and support services across the whole of Scotland. It was established by the Regulation of Care (Scotland) Act 2001, and took over the registration and inspection of care services from local authority social work departments and health boards. Services are categorised according to their function and purpose, and are assessed in relation to National Care Standards for each category.

Accommodation is exempt from HMO licensing when it is provided as part of any one of four categories of service:

• Care home services
• Independent health care services
• School care accommodation services
• Secure accommodation services.

These types of service are inevitably provided in dedicated accommodation, and the National Care Standards include physical standards for the accommodation and requirements as to service providers' rights and responsibilities while occupying that accommodation. Fire authorities are involved in the inspection of the accommodation and will report back to the Care Commission on their findings.

Other categories of care or support services are not necessarily provided in dedicated accommodation. In these cases the Care Commission regulates the service, and the standards of accommodation and tenancy management are, where appropriate, controlled by HMO licensing. The most common example is a Housing Support Service, which might be provided to people leaving institutional care or who have been homeless, to help them develop the skills to manage their own home. They might start in hostel-type accommodation, move to a house shared with three or four other people, including support workers, and finally move to a home on their own, where support workers continue to visit for as long as necessary. This is a process in which the individual may have the same support worker throughout, but moves from dedicated HMO accommodation, to non-specialist HMO accommodation, to a mainstream, singly occupied house.

The arrangements for exemption are intended to ensure that there is no conflict between the requirements of the Care Commission and the requirements of HMO licensing. However, the Care Commission may raise issues with the support provider about, for example, the appropriateness of the accommodation or equipment in place, for the provision of the support service. The licensing authority would not normally be party to such comments, unless they are mentioned by the licence holder.

If licensing officers have any queries or concerns about HMO operators who are also providing care or support, they should contact the Care Commission's local office and ask for the person dealing with housing support services. A list of contact details is available on the Commission's website at http://www.carecommission.co.uk/CareComm.Web/contact.aspx

2-5.5 LOCAL AUTHORITY SOCIAL CARE AND HOMELESSNESS SERVICES

Care and support services are regulated by the Care Commission, but they are often funded through contracts with local authorities, under a range of programmes which include social work services, Supporting People and services for homeless people. Licensing officers should work with colleagues to ensure that all non-exempt HMOs used by these services are licensed.

2-5.6 PLANNING

The planning system guides the future development and use of land in cities, towns and rural areas in the long term public interest. The aim is to ensure that development and changes in land use occur in suitable locations and are sustainable ¹. Most people are aware of the need to obtain planning permission for new buildings, 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 has been, or is proposed to be, a change of use which, based on the circumstances of the case, constitutes "development" within the meaning of the Town and Country Planning (Scotland) Act 1997 ( the 1997 Act). If the present use of the property is a lawful use, e.g. it has been used for that purpose for more than a period defined in statute (currently 10 years), then such use would be immune from enforcement action.

Planning law provides that certain changes of use do not constitute development within the meaning of the 1997 Act. The Town and Country Planning (Use Classes) (Scotland) Order 1997 (the Use Classes Order) ² groups certain uses or types of uses into classes and provides that changes of use within a class are not "development", and therefore do not require planning permission. HMOs may fall into one of three 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 are development for planning purposes and will therefore require planning permission.

Class 9, Houses, includes, among others, houses occupied by a single person, people living together as a family and up to 5 people living together, including a household where care is provided for residents. If the occupation of a house changed from family use to an HMO with no more than 5 occupants, there would therefore be no requirement to obtain planning permission for a change of use on that ground alone. However, a change from a family home, however large the family, to a house with more than 5 occupants who do not form a family, may represent a change of use constituting development, depending on the circumstances of the case. Where development was involved, and the multiple occupation was not a "lawful use", planning permission would be required.

Flats are outwith Class 9 and consideration would need to be given as to whether any increase in the number of occupants of a flat would constitute development for the purposes of the 1997 Act and therefore require planning permission.

Article 4 of the Use Classes Order provides that sub-division of a house to form 2 or more separate houses constitutes development requiring planning permission.

HMO licensing and planning policies

Scottish Planning Policy 1: The Planning System, states that the planning system should not be used to secure objectives that are more properly achieved under other legislation. However, even where legal or administrative measures outwith the planning system may exist for controlling a particular issue, it can still be a consideration to which weight is given in reaching a planning decision. The courts have also upheld planning powers being used alongside other controls, such as liquor licensing, where there is a demonstrable planning justification.

The 1997 Act requires that planning decisions be taken in accordance with the development plan (the collective term for the structure plan and local plan covering an area) unless material considerations indicate otherwise. The purpose of the development plan is to guide the future development of an area and provide policies covering key land uses including the location of housing. In forming development plan policies for HMOs, planning authorities should take into account the extent to which the HMO licensing regime can control issues which touch upon planning objectives.

Some local authorities have local plan policies which seek to control the proportion of HMOs in particular areas. There are, clearly, some issues affecting residential amenity which arise simply from the increased number of adults living in an area due to the presence of an HMO. Adequate parking and refuse storage are examples of issues which will always be relevant in considering planning applications. However, where the issues relate to the behaviour of the landlord or tenants, such as maintenance or noise, planners should take account of the controls offered by HMO licensing. They should also be clear that all kinds of people may live in HMO accommodation, and it is not necessarily the case that HMO residents would cause more disturbance than other types of household who might occupy the property. Local authorities may wish to review their planning policies on HMOs in light of the full coverage, now, of mandatory HMO licensing, and the importance of HMOs as a supply of housing in some areas and for some groups of people. In light of the controls available and the many different types of HMO, it may not be appropriate to impose a blanket ban or purely numerical restrictions on HMOs in any particular area.

Co-ordinated administration of planning and licensing

The preceding paragraphs show that not every HMO requires planning permission. Even where planning permission may be required, it is not appropriate to link this with HMO licensing by refusing to grant a licence until planning permission has been obtained. As stated above, these are separate regulatory regimes with different purposes, each of which has its own enforcement 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 local planning policies. In cases where planning permission may be required, they should advise applicants for HMO licences to contact the planning department, and it may be helpful to establish systems for sharing information with planners. These arrangements should be reciprocal, since applications for planning permission for a change of use may also identify HMOs which require to be licensed.

Where both planning permission and an HMO licence are required, it is important that procedures should be well co-ordinated and the features of each system made clear to the applicant. In many local authorities, enforcement of HMO licensing is more active than planning enforcement, so that pressure may be put on operators to apply for a licence to avoid legal proceedings, while planning permission has not yet been secured. However, since planning deals with the balance of development in an area, factors outwith the owner's control may affect whether planning permission is granted. Upgrading a property to HMO standards can be expensive, but, provided there are no pre-existing complaints from neighbours, it should be entirely within the control of the owner to meet the conditions for licensing. It is understandably frustrating for an operator to spend considerable sums upgrading a property and obtaining an HMO licence, and then to be refused planning permission to operate. Local authorities should consider how they can better ensure that in the operation of their powers and responsibilities under the two systems and in the exercise of their enforcement powers they can provide a consistent service.

Both planning and licensing applications include an opportunity for objections to be put to the authority. Neighbours need clear information similar to that provided to applicants, to explain the two systems and what matters each can control. This may help to avoid the situation where the same objections are made in respect of both applications, and to reduce the frustration felt by objectors when their arguments are rejected as not relating to relevant considerations under the system in question.

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