Turning long stay hotel accommodation into "self-contained flats" is not as easy as putting in a microwave oven...

Oxford Hotel Investments Limited v Great Yarmouth Borough Council [2025] UKUT 387(LC)

A hotel used to provide long stay accommodation for homeless persons had attempted to avoid a section 255 HMO (house in multiple occupation) declaration under Housing Act 2004 by claiming that each bedroom was a "self-contained flat" by virtue of having each of the three amenities (WC, Washing and cooking) required by the statutory test for self-contained flats at s.254(8) of the Housing Act 2004.

The Saint George Hotel in Great Yarmouth, in common with many other similar hotels in the country, has in recent years been used to provide accommodation for those to whom a statutory duty is owed. In the case of the St. George the hotel is used to accommodate homeless persons. All of the bedrooms at the hotel have en-suite bathrooms with WCs. In October 2023 Great Yarmouth Borough Council inspected the hotel in its capacity as the local housing authority for its borough. The inspecting officers established that of the 62 bedrooms at the hotel 32 were in use as homelessness accommodation for homeless persons being assisted by a number of local authorities. The officers were satisfied that the rooms used as homelessness accommodation were occupied in such a manner as to fulfil the standard test for HMO status at s.254(2). The officers established that each of the bedrooms had an en-suite bathroom with WC. However, the officers noted that the only facilities to allow occupants to prepare food was the presence of microwave ovens in some of the bedrooms; many of the rooms also had kettles and small fridges. There was no other provision of food or catering at the hotel and no shared kitchen facilities for the use of occupants. The council made a s.255 HMO declaration for the hotel. The hotel operator subsequently requested that the s.255 declaration be revoked, this application for revocation was refused by the council. The refusal to revoke the s.255 declaration was  appealed by the hotel operator to the First Tier Tribunal ("FTT"). The FTT held that the council had been correct to find that the hotel was occupied such that the bedrooms used as homelessness accommodation met the s.254(2) HMO test as relevant for the s.255 declaration. The FTT also found that there was significant use of the hotel as an HMO to justify the making of the s.255 declaration. Accordingly, the FTT upheld the council's refusal to revoke the s.255 HMO declaration.

The hotel operator sought permission to appeal to the Upper Tribunal ("UT"). The FTT refused permission to appeal, however the UT granted permission on two overlapping grounds related to the issue of whether the cooking amenity provision in the hotel bedrooms was sufficient to permit the bedrooms to be classified as "self-contained flats" under s.254(8). The issue identified by the UT was whether the provision of microwave ovens in the bedrooms qualified as "cooking facilities" for the purposes of the s.254(8) test for "self-contained flats". This was the main matter for consideration by the UT at the hearing on 10th November 2025.

The UT held that a microwave oven could not on its own constitute "cooking facilities" for the purpose of s.254(8). There being no case authority on the matter the Tribunal approached the issue as one of statutory interpretation. The Tribunal turned first to the purpose and legislative scheme of the Housing Act 2004. The Judge found that both the overall purpose of the Housing Act 2004 and the immediate function of the provisions in question pointed towards the interpretation that was to be placed upon the term "cooking facilities". The Tribunal cited the discussion in Global 100 Ltd. v Jimenez [2023] EWCA Civ 1243 (at paras. 7 & 8) of the purpose of the Housing Act 2004: The purpose of the 2004 Act was to provide protection for those occupying accommodation that should be correctly identified as being an HMO. The Judge also referred to the explanatory notes to the 2004 Act. He concluded: "This part of the Act is there to protect vulnerable and disadvantaged occupiers such that it is very important that buildings which should be treated as HMOs do not escape statutory control. Given that purpose, in my judgement it is unlikely to have been intended by Parliament that this statutory regulation could be escaped by the simple expedient of plugging in a microwave".

The immediate function of the provisions under consideration also pointed against a microwave amounting to "cooking facilities". The Judge observed that the other two facilities cited in the provision, WC and washing, were by their nature "characteristics or features" of a property and not merely "contents". Whilst the Judge observed that the present case was concerned with its particular facts he did make a general observation that the further a property's characteristics moved away from those of a "full kitchen" the harder it will become to describe what is provided as "cooking facilities": "The particular facts of this case have, in my judgement, moved too far away to be described as cooking facilities. Those facts are that there is no relevant storage, no food preparation area, and just a microwave with fridge and kettle".  

This decision is of interest in its own terms since it gives useful guidance regarding the meaning of "cooking facilities" for the purposes of the "self-contained flat" test at s.254(8). Such facilities must consist of more than a few kitchen items and should be capable of being described as a feature of premises. A degree of comprehensiveness and permanence appears to be required by the way the Upper Tribunal described what would and would not comprise "cooking facilities". This may be of assistance to both property managers and council officers when assessing the level of amenity provided.

The decision is also of wider importance given the number of hotels and similar properties being used to accommodate both homeless persons and asylum applicants. In the case of the St. George Hotel some of the homeless persons had been in occupation for a considerable number of months and the FTT found as a fact that they had no other home (a logical finding given their status) and hence passed the s.254(2) HMO occupancy test. In the case of asylum applicants accommodated under section 95 of the Immigration and Asylum Act 1999 their occupation may also fall within the scope of the s.254(2) HMO test. Such people are entitled to decent standards of living accommodation and this can only be assured by treating their accommodation as HMO accommodation with all of the concurrent applicable regulations, license conditions and standards. It is not surprising that hotel operators do not wish to have to meet the full standards expected of HMO landlords and are looking to avoid s.255 HMO declarations being made for their hotels. Local housing authorities are confronted by a situation where hotels are being used as long stay accommodation and should be subject to proper regulation like other private rented sector accommodation. This Upper Tribunal decision gives councils more certainty regarding the making of s.255 HMO declarations for hotels that have become HMO accommodation for some of the most vulnerable people in our society. Rather than pursuing planning control as a route to shut down unwanted use of local hotels, councils might be better advised to seek to properly regulate them as the HMOs they really are.    

Archie Maddan acted for Great Yarmouth Borough Council in this case.