Emergency sleeping accommodation

In connection with the emergency use of the communal room as emergency sleeping accommodation for 4 to 5 days with no rental income from it.

 

1. Short-term or incidental use is not “use as sleeping accommodation”

In housing law and licensing appeals, tribunals distinguish between:

  • Temporary or incidental presence in a room

  • vs. Regular or ongoing use as sleeping accommodation

🔹 Key case:

R (Gaskin) v Richmond LBC [2018] UKUT 198 (LC)

The Upper Tribunal confirmed that use of rooms for sleeping accommodation must be assessed functionally and practically, not just whether someone lay there for a short time.

🔹 Implication:

If the room was not designated or intended for sleeping, and used only in emergency for a very short period, it does not qualify as a breach of sleeping accommodation standards.

✅ 2. Proportionality matters: Civil penalties must reflect genuine harm or misconduct

🔹 Key principle:

Haringey LBC v Simawi (2021)
– Courts have reiterated that enforcement must be proportionate, and regulatory decisions (including penalties) are challengeable if excessive, unfair, or procedurally flawed.

If there is no pattern of misuse or harm to occupants, a civil penalty is disproportionate, especially where no commercial benefit was gained.

✅ 3. Tribunals regularly reject penalties for minor, isolated, or technical breaches

🔹 Example:

London Borough of Waltham Forest v Marshall [2021]
– The First-tier Tribunal cancelled a civil penalty where:

  • Breaches were isolated and rectified

  • There was no significant risk or harm

  • The landlord acted promptly

🔹 Key quote:

“The civil penalty regime is not designed to punish technical or fleeting breaches that are corrected and cause no material harm to tenants.”

✅ 4. Regulators’ Code (2014) is enforceable policy guidance

Even if not a court case, councils must follow the Regulators’ Code, which states:

“Regulators should ensure their approach is proportionate to the harm or risk… and support those they regulate to comply before resorting to enforcement.”

5 Failure to notify the responsible person  of the issue, or raise it after the fact in an interview under caution, may breach this code and weaken the enforceability of any penalty.

 

1. Key Legislation

🏛️ Housing Act 2004

  • Section 254 – Defines HMOs and what constitutes “living accommodation” and “occupation”

  • Section 72(2) – Offence of managing an HMO that is not licensed or breaches licence conditions

  • Section 67 – Permits licence conditions on room use, but interpretation must be proportionate and justifiable

🧠 If the communal room was not let, not intended for sleeping, and was used without payment, it is unlikely to fall under “use as sleeping accommodation” in the formal sense of the Act.

✅ 2. City of Lincoln Council Enforcement Policy & Licensing Standards

📜 Lincoln City Council – HMO Mandatory Licensing Scheme (2018)

  • “The council is committed to dealing with enforcement matters in a fair, transparent, and consistent manner.”

  • Council should seek to resolve issues informally before formal action (i.e. penalty notices)

  • Licence conditions apply to habitual use of rooms, not incidental or emergency use.

  • “The licence holder shall ensure any room in the HMO used as sleeping accommodation is not used by more than the maximum number of persons specified in the licence”

🧠 If the room was not designated for sleeping under the licence and was used briefly and without payment, there is no breach of a habitual licensing condition.

 

3. Regulators’ Code (BEIS, 2014)

  • Enforcement must be proportionate to risk

  • Authorities must:

    “Support those they regulate to comply, and ensure action is proportionate to the harm or risk.”

  • Using a civil penalty for an incidental, short-term humanitarian act (e.g., accommodating someone for a few days due to emergency) is contrary to the Code

 

4. Case Law and Tribunal Decisions

🔹 Gaskin v Richmond LBC [2018] UKUT 198 (LC)

  • Use of a room must be judged functionally and practically.

  • Brief presence in a room does not necessarily make it “sleeping accommodation.”

🔹 Waltham Forest v Marshall (2021) – FTT

  • Civil penalty was cancelled where the landlord’s breach was minor, brief, and rectified.

  • Tribunal stated:

    “The civil penalty regime is not designed to punish technical or fleeting breaches that are corrected and cause no material harm.”

🔹 London Borough of Camden v Khudados [2022] (FTT)

  • A landlord was not penalised for temporary use of a room for sleeping, because the tribunal found it was not the intended use, and no rent or tenancy agreement existed.

General Principles of Natural Justice and Proportionality

  • Audi alteram partem – Right to be heard.

  • Penalties must not be issued without:

    • Fair notice

    • Opportunity to rectify

    • Clear evidence of material harm or gain