Changing rooms

Or Britain’s vanishing bedrooms.

[As I was writing this, the DWP announced it was to appeal the two (actually 3) Fife decisions that relied on room size. Details below]

The bedroom tax First Tier Tribunal decisions are coming in now. And they are intriguing. In some ways, not a surprise, in others somewhat opaque. As well as the first Fife decision which I reported here, there are another four Fife decisions that I’ve now seen, and a rather frustrating one from Westminster.

Rather than dwell in detail on each decision, I’ll take a look at what could be considered to be principles of the decision, for potential broader application. Links are to the decisions.

Un-named decision – Fife.

X had 3 rooms, described as two bedrooms and a box room. The council landlord held it was a 3 bedroom property. Mr X lived there alone. He is disabled through loss of a leg. The benefit authority had originally found him 2 bedrooms over, but, “rather surprisingly” as the Tribunal rightly put it, reassessed him as needing a second bedroom for an overnight carer – Mr X’s account was that his adult sons stayed there ‘sometimes’ when he was in particular discomfort. However, that was not at issue here, just the third room. Mr X argued that he wanted to convert the room to a wet room  and used it to store the equipment needed for his disability. It was not therefore used as a bedroom. Further, it was 8 foot by 8 foot, 64 sq ft, and therefore too small to be a bedroom, via the Housing Act  (Scotland) 1987 overcrowding regulations (identical to the Housing Act 1985 provisions for England and Wales).

The Tribunal did not accept either the potential wetroom argument, or the current use argument (after all, the equipment could be stored in the other ‘spare’ bedroom). However, the size argument was accepted.

I accept that the thrust of Mr Sutherland’s submission here, namely that under-occupancy can be seen as the flip side of overcrowding, and that it is relevant to have regard to statutory space standards. These indicate that a room of this size is appropriate for use as sleeping accommodation by a young child – as has indeed been the case in relation to room 1 – but not an adult. It is in effect regarded by section 137 of the 1987 Act as only half a room. I also accept, having regard to Circular A4/2012, that paragraph 613(5) generally presupposes that to be classified as a bedroom a room should be large enough to be appropriate for use as a bedroom by an adult- or by two children.

If this were to be generally adopted, or upheld by the UT, this is significant. The equation between ‘undercrowding’ and ‘overcrowding’ regulations is neat and rhetorically persuasive. Whether it would stand up to detailed purposive examination of statute is another matter.  It is to be hoped that it does, as the often repeated DWP/DCLG suggestion that people should ‘take in a lodger’ would of course require an adequate adult sized bedroom.

It would mean, in effect, that no room under 70 sq ft would be classifiable as a bedroom for the bedroom tax (or indeed at all – there being no category of ‘half a bedroom’ or ‘young child’s bedroom’ for social housing  description and rent purposes. This has been suggested but is to misunderstand the Housing Act 1985 schedules). It is exactly the suggestion I made way back when. I suspect there are a lot of ‘third’ bedrooms in social housing that are smaller than 70 sq ft. Time for social landlords to get out the tape measures?

A word of caution though, regarding para 11 on room size:

It seems to me that even if this room may be too small to be appropriate for full time use as an adult bedroom, this does not necessarilv mean that it is also too small for use by a person occasionally staying overnight.

The specific room for use by a carer was not designated. The hearing went ahead on the assumption that this was the other, larger bedroom, and this was not challenged by Fife, but there is a clear warning here, to which I’ll return below.

David Nelson – Fife

The successful argument in this case was also the room size argument – the room was 66.4 sq ft. Arguments that the extra room was used to store disability related equipment so had an established ‘non bedroom’ use were not accepted. The equipment, on the facts, could be stored elsewhere in the house.

Again, a second bedroom had been accepted by Fife as being needed for overnight carers (apparently not regularly). The tribunal noted this with some surprise and again added

It seems to me that even if this room may be too small to be appropriate for full time use as an adult bedroom, this does not necessarily mean that it is also too small for use by an overnight carer, perhaps even one staying up to five nights per week.

The hearing had proceeded on the assumption by both parties that the second, larger, bedroom was the ‘carer’s room’, but there was no reason why that should be so

the appellant was found entitled to an additional bedroom for the purpose specified, not to assign a particular bedroom within his property to that use.

So simply because a room is presently used for a particular purpose does not play a determinative role.

Louise McCleary – Fife

This is an exceptional case, but interesting. Ms McCleary is blind. She was assessed as needing a 3 bedroom house and was allocated a house, with a package of support from a housing association, KHA. Ms McCleary argued that this was exempt accommodation under the Consequential Provisions Regulations 2006, as she was also provided with “care, support or supervision”. The Benefit Authority argued that this was not specified in the tenancy agreement, so not exempt. The FTT found against the Authority, stating that there is no requirement that the care provision ‘must be pursuant to a contractual obligation to the claimant.’

William Thomson – Fife

Mr T argued that the spare ‘bedroom’ was principally used to store gardening equipment and always had been. There was no other storage space on the property.

This got nowhere at all on the evidence. The Tribunal noted

I was attracted to Mr Sutherland’s general approach to the question of considering whether a room which was in all physical aspects capable of being used as a bedroom should nonetheless not be classified as one. His approach meets the objection of self classification by requiring (a) that there be well established alternative use of the room, and (b) that that alternative use is in reality not a matter of choice for the occupant but reasonably required for their continued occupation of the property as their home.

However, Mr T’s evidence on use was not ‘wholly credible and reliable’ and

Furthermore, I did not accept that it was necessary to effectively reclassify the room as a garden tool store in order for the appellant to be able to have reasonable enjoyment of his property consistent with his tenancy obligation. I consider that few tools are likely to be reasonably required to maintain the garden to a standard consistent with the tenancy agreement. The garden is small, barely four times the size of the disputed room said to be necessary to store the tools to maintain it. […] it is not unreasonable to expect the tenant to obtain a small outdoor shed to store them in, as other tenants do.

So, although Mr T failed, there is an indication of the kind of evidence and rationale that might be required to support an argument that alternative use which was not a matter of choice could mean a ‘bedroom’ wasn’t. But it is a high hurdle.

Lastly and most frustratingly, an FTT decision on an appeal from City of Westminster decision. The Decision is here. (Courtesy of Robinson Williams Solicitors, who acted for the appellant)

Mr Lall is being reported as the tenant. He is blind. It appears from ITV reports that there was an argument raised that the second ‘bedroom’ in this case was used by Mr Lall for equipment related to his disability which could not be stored elsewhere in the flat, and that the room had not been used as a bedroom.

However, it also appears that the landlord housing association reclassified the room as not a bedroom shortly before the FTT and on that basis, Westminster as benefit authority did not actually turn up to the hearing or make submissions.

While the news reports suggest that it was the use of the room to store equipment that was relevant, the actual (brief) decision states, confusingly:

I have found that the room in question was never intended to be a bedroom, and has never been used as a bedroom. It contains equipment necessary for the appellant to try to overcome his disability.

So, was this based on current use? Or based on the nature of the room? Or historic use? Deeply unclear. Coupled with the Fife decisions above, I don’t think it can give much heart to those wanting to advance a ‘current use’ argument.

I have emailed the solicitor for Mr Lall asking for details, so updates when and if I get a reply. (Our reputation only goes so far!)

Update. As mentioned at the top of this post, the DWP has announced that it will appeal the two (actually 3) Fife decisions that were based upon the Housing Act 1985/Housing (Scotland) Act 1987 room size criteria.

The DWP state that the grounds are:

space standards do not relate to the Removal of the Spare Room Subsidy, nor should a dining or living room be classified as a bedroom notwithstanding that the relevant Housing Act provisions would class them as such.

As I presciently mentioned above, the HA 1985 regs have a different purpose to the bedroom tax regs. The equation of under occupation/overcrowding is appealing, but there is not a straight parallel. The DWP has taken aim straight at that point, as the dining room/living room issue makes clear. These would indeed be considered as available space under the HA 1985 regs. Still, courageous of the DWP to appeal, because if the UT and if necessary higher courts go against them…. The issue is surely going to spill over from the formal applicability of the HA 1985 regs to the question of minimum ‘bedroom’ size.

Intriguingly, the DWP circular (HB/U6 2013) goes on to say:

4. This bulletin is to inform LAs that when applying the size criteria and determining whether or not a property is under-occupied, the only consideration should be the composition of the household and the number of bedrooms as designated by the landlord, but not by measuring rooms.

 

5. In determining whether or not a room is a bedroom the landlord may consider a number of factors, but one of these must be whether or not a room is large enough to accommodate at least a single bed. Where this is not the case, the landlord should reassess whether or not that room should be classified as a bedroom and ensure that the rent correctly reflects the size of the property.

 

6. Where rooms are designated as bedrooms landlords should classify it as such notwithstanding that the tenant may argue that it has been habitually used for something else (such as storage).

Now 4. looks a lot like saying that the landlord’s decision on bedroom numbers is determinative for benefit authorities. Clearly, I am psychic. But I remain confident that serious problems await the DWP (let alone the landlords) on taking this route. And will the UT really agree that the decision on what constitutes a bedroom for the purpose of the regs (where the regs don’t define it) is outside the jurisdiction of the FTT?

5 and 6 look like telling landlords how they should decide what a bedroom is. I really, really doubt that the DWP has any such authority to do so, in any event not in the form of a circular. It seems that rather than opting to say the landlord’s decision is determinative, or to define a bedroom, the DWP has attempted to do both. Badly. Oh dear, they really are in a bit of a mess.

[Update 26/09/2013 – The Guardian has some more about the Westminster case here. While this does give more detail, I do not think that the way it is being billed by the paper is helpful. As the landlord reclassified, Westminster did not attend or argue the case, so any decision made on room use by the FTT is potentially unreliable even as an indicator of approach. Certainly, it is not right to say this case “clearly demonstrated that an additional room used for equipment required by a disabled person fell outside the scope of the regulations and should stop local housing departments simply using the term bedroom in tenancy agreements to cut benefits.”]

Posted in assured-tenancy, Benefits, Housing law - All, secure-tenancy and tagged .

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

7 Comments

  1. The pig’s ear getting bigger appears to be government logic in the hope of making a larger silk purse.

    The one eventuality not covered above is the obvious one for me and that is for local councils to determine that their working definition of a bedroom is the minimum 70 square feet. One does that and the rest follow.

    For decades local HB officers have decided what ‘sheltered’ housing is and not and that has no legal definition either, so each local council defining for their working purposes on a minimum room size of 70 square feet appears very logical and persuasive, as well as being beneficial to councils, social landlords and tenants. Local councils can choose to do this as after all it is they who are the first stage decision maker.

    The dining room / living room argument for me is a non-issue. It would have to be argued in front of the judge but how would it get there? The landlord and council say 3 beds, the tenant argues its 2 so who is arguing it may be 4 beds? Without a wholesale inspection of every single social property and a new decision on each I fail to see how this can be decided upon.

    The idea of social landlord being trusted yet the private landlord cannot be (with Rent Officer referral routine there) is a huge issue too and yet another example of this knee jerk guidance.

    Yet the real key is “I also accept, having regard to Circular A4/2012, that paragraph 613(5) GENERALLY PRESUPPOSES that to be classified as a bedroom a room should be large enough to be appropriate for use as a bedroom by an adult- or by two children”

    This strongly suggests a link to room size within HBR and that all councils should have asked for room size BEFORE making the original decisions, rather than resting the mantra that statute doesn’t ‘read across’ and we only have to look at HBR and not statute such as the 1985/87 Acts. In not asking, and none of them did, I have always questioned the lawfulness of all the original decisions simply because the councils could not KNOW what was a bedroom and what was not; rather they simply took a best guess and operated a blanket policy in doing that too.

    Curiouser and curiouser

  2. The landlords word is determinitve according to the DWP? Strange how they drafted paragraph 20 of the A4/2012 bedroom tax guidance which begins: –

    “There is no obligation on landlords to reply to a request for information. However it is in their interests to work with local authorities so that they know which of their tenants will be affected. In some circumstances it may be necessary to contact a claimant directly for information about the number of bedrooms in their property. And for new claims from 1 April 2013 we would normally expect claimants to provide the information about property size on their claim form.”

    So the word of landlords who had no obligation whatsoever to provide any information at all is now determinitive?

  3. Readers might be interested in re-visiting Local Government Ombudsman decision 11 018 683 against City of York on 16 October 2012. Ombudsman found maladministration when council moved homeless family into house that was overcrowded from moment they moved in and hen failed to prioritise them for a transfer saying they were adequately housed (and not over-crowded!)

    As Ombudsman pointed out councuil potentially committing a criminal offence! Case also darws attention to HSE guidance from October 1998 saying a room cannot be used as sleeping accommodation (what is a bedroom for?) if it contains a gas fire, gas space heater or gas water heater including a gas boiler.
    DWP are being disengenuous in HB/U6 2013 and as commentators above have pointed out their arguments are flawed. Do they want to lose at Upper Tribunal?

    • Richard

      These are the statutory overcrowding provisions in HA 1985, yes. But I don’t see how the fact that a council has been found to be in breach of statutory overcrowding provisions makes them any more relevant to the bedroom tax regs.

      The point about the HA 1985 provisions, which people keep missing, is that they do NOT set a minimum bedroom size. They set a minimum size for which a room (any room) can count as space for one (or more) people for the purposes of an overcrowding calculation on a whole property. Now, this may be persuasive for assessing room size as an issue for whether a room can be a bedroom or not. I argued it myself back before the start of the bedroom tax, and clearly the Fife FTT was persuaded.

      However, this does not mean that there isn’t an arguable case that the HA 1985 Regs should not simply be mapped onto a definition of ‘bedroom’. It is not an argument that I would want to see win, but it exists.

  4. Pardon my ignorance but I thought it was just the appellant & the decision maker – Fife , I assumed in this instance, that could appeal. How do the DWP get in on the act?

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