Bedroom Tax FTT decisions
Bedroom tax Tribunal decisions

[Update - Upper Tribunal bedroom tax appeal decisions, binding on FTTs, can be found here.  New posts as they come in.]

As decisions by the First Tier Tribunal on bedroom tax appeals seem to be coming in thick and fast, I'll try to keep a list here. Where possible, there will be links to written decisions, if not, then to whatever news or other report is available.  [See also the pre-1996 continuous claims exemption]

Significant decisions will continue to be reported on the blog as usual, so I won't go into details of any decisions here. These are in chronological order, with the area identified.

Fife
Harrower-Gray
Unnamed
Nelson
McCleary
Thomson

Westminster
Lall

Glasgow
Unnamed [Update. 31/10/2013. DWP have permission to appeal this case to the UTT]

Redcar & Cleveland
Unnamed (Press report) (Also report in Daily Mirror, suggesting supported by Landlord) (Decision here) (Our note)

Hereford
Unnamed (NB this is an LHA decision, not bedroom tax proper)

Islington
Unnamed. [Update 21/01/2014. Statement of Reasons and adviser's submissions. Room found to be ineligible both by reasons of the use of room - storage - and size of room - 42 sq ft. Also disabled adult child who was in care home, but came to stay at the property two nights a week was 'occupant' for assessment purposes occupation not defined by period of time, but this was his 'home' for the purposes of B13.]

Inverness
Unnamed. Brief details here. Father refused 'second bedroom' for three children who stayed at weekends under access arrangements as not 'main home' of children. (Cf the ongoing Liberty JR of bedroom tax regs about children in separated families)

Liverpool
Unnamed. Statement of reasons here. Disabled mother living with with adult daughter with autism. 3 bedroom property. The third bedroom was used twice a week by the younger sister staying overnight to provide care for the elder daughter. FTT accepted would be unjustifiable discrimination under Article 14 to treat a member of the household differently to tenant or tenant's partner in treatment for requiring overnight care. (NB room size argument - 54 sq ft - rejected as room was actually used as bedroom). [Thanks to Ruth Knox, RAISE Benefits Advice Team]

Edinburgh
Unnamed. Partners unable to share a bedroom due to health condition of husband. 5 bed property, dependant son and adult daughter living with them. Assessed as needing 3 bed. Appealed on basis of needing 4 bed. FTT accepted that decision discriminated on basis of disability, with parallel in Gorry and that was an Art 14 breach. Eligible rent to be reduced by 14% not 25%. Decision and adviser's submissions here.

Liverpool
Unamed. Two 'bedrooms' disputed on grounds of size. FTT accepted it should have regard to Housing Act 1985 provisions on overcrowding as 'under-occupancy can be seen as the flip side of over-crowding'. Reg B 13(5) pre-supposes that to be classified as a bedroom a room should be large enough to be appropriate for use as a bedroom by one adult or by two children. The rooms in this case were two small for appropriate use as a bedroom. Detailed decision notice here.

Rochdale
Unnamed. Single adult in '2 bedroom' flat. Successful appeal on  grounds that room always used as a dining room. Pure historic room use argument. Statement of reasons

Middlesborough
Huggan. News report here. Mother with two sons in the army. They lived in barracks and were not 'on operations' . FTT upheld appeal against finding that the barracks was the sons' main home.

Aberystwyth
Unnamed. Decision notice here (no statement of reasons yet). Details here.

Monmouthshire
Unnamed. Room size and room use. Decision notice here and our report.

Liverpool
Unnamed. Decision notice here. Additional bedroom on Article 8 grounds for family life with daughter who stayed weekends and school holidays. Our report.

Liverpool
Unnamed. Decision/reasons here. Couple unable to share room by reason of severe disability. Article 14 discrimination.

Birkenhead
Unnamed. Decision/reasons here. Pure historic and current room use. Finds current use defines room state. Includes reliance on Uratemp - see my note

Liverpool
Unnamed. Decision/reasons here. Duplicates room use/Uratemp argument as in Birkenhead decision above.

Newcastle
Unnamed (The Isos decision) Decision/reasons here. Separated family, child staying at least half the time, appellant not receiving the child benefit. (Note)

Camden
Unnamed. Decision here.  Statement of reason here. Overnight carer. Physical layout of rooms, and nature of rooms meaning not a bedroom. (Note)

Glasgow
Unnamed (x 2) Decision notices here in two FTTs, both assessing a downstairs room as a dining room through established usage reasonably necessary for enjoyment of the property. See also Govan Law Centre post.

Liverpool
Unnamed. Room size decision [Decision notice], 52 sq ft too small to be a bedroom, supported by photos. Also notably decides that HHSRS standards apply to social housing as well as HMOs. (This is a bit confused, because of course the HHSRS standards apply. There is no suggestion that HHSRS only applies to HMOs (though they can't be enforced against Council landlords) There is also no room size standard in the HHSRS via Housing Act 2004, so what is actually meant here is less than clear, despite saying that a room size of 6.5 square meters was necessary to avoid category 1 overcrowding).

Southwark
Unnamed. [Decision notice] Couple unable to share bedroom by reason of disability, argued as Art 14 discrimination.

Brighton
Unnamed. Decision notice. (NB this is an LHA case, not HB/Bedroom Tax) A finding that imposing the bedroom tax on partners unable to share a room due to severe disability would be an Article 14 breach and that the regulations must be read to allow another bedroom. This decision post dates MA & Ors in the Court of Appeal.

Oxford
Unnamed Statement of Reasons. The adult daughter of the appellant is severely disabled and requires constant day and night care. Respite care 41 days per year requiring an additional room. Article 14 discrimination. MA distinguished. Note here.

Lambeth
Unnamed. Decision Notice. Room use/historic room use & landlord's designation. Two rooms, including living room knocked together pre tenancy.

Isle of Wight
Unnamed. Decision Notice. A failed appeal on room size. FTT found that a room between 50 and 70 sq ft was a bedroom, based largely on it having been used as a bedroom in the past by tenant's son.

Liverpool
Unnamed. Decision Notice. Room size and use. 'Room always used as a computer room'. "Changed from being bedroom during course of tenancy'. Refers to Uratemp.

Liverpool
Unnamed. Decision Notice. Mix of room size and application of 1996 exemption. Move to new property in 2001 occasioned by 'fire at the flats and flood at the home. Rehoused due to these conditions'. (Apparently decant for demolition). Room with fridge freezer in it not stopped from being bedroom. Note here.

Runcorn
Unnamed. Statement of reasons here. Room use, room adapted as sensory room for disabled daughter. Landlord assisted in adaptations of room. Our note.

Liverpool
Carmichael case. Statement of reasons here. Couple unable to share a room by reason of serve disability. This is the Carmichael case referenced in MA & Ors in the Court of Appeal, but as noted here, the FTT found discrimination.

Islington
Unnamed. Decision notice. Room not suitable for use as a bedroom at time of decision due to condition of room (condensation damp and mould). Note here.

Liverpool
Unnamed. Statement of reasons. Room size argument. Interesting approach on Part X Housing Act 1985 issue. Note

Rochdale
Unnamed. Statement of reasons. Room size. Art 8 and 14 arguments dismissed. Bolton UT decision 'not relevant'. Note

Wiltshire
Unnamed. Decision Notice. Room 'ceased to be used as a bedroom before 2011'. Used as an office and contained office furniture. That it had been used as bedroom in the past and could be used as bedroom in the future did not mean it was a bedroom now.

Sunderland
Unnamed. Statement of Reasons. Room converted to have access for lift for disabled tenant not a bedroom, because although a bed could be fitted, it 'lacks that degree of personal space and privacy integral to the definition of a bedroom'. Worth examining as a careful appeal-proofing of a decision. Note here.

Rochdale
Unnamed. Statement of Reasons. Room size - 64 sq feet - and room use. Cites Bolton UT case.

Wakefield
Gresham. Statement of Reasons. Conditional short term DHPs not enough to remedy disability discrimination. Couple unable to share bedroom because of severe disability. Adapted property. Note here.

Bedlington
Unnamed. [Statement of reasons] Separated family. Child staying a weekend per month and longer at school holidays had home at property for bedroom tax purposes. Room size and room use arguments dismissed. Note here

Liverpool
Unnamed. [Statement of reasons]. Article 14 discrimination where sole occupant was significantly disabled, property adapted for use, no DHP. Note here

Liverpool
Unnamed. [Statement of reasons] Couple unable to share bedroom due to disability, article 14 discrimination. Note here

Truro
Kent. [Statement of reasons] Room of less than 50 sq ft, used for storage not a bedroom. Tenancy agreement did not specify number of bedrooms. Note here

Liverpool
Unnamed SC068/14/01187. [statement of reasons]. Two rooms, each below 6m2 of useable floor space were not bedrooms. Respondent 'not entitled to ignore housing overcrowding legislation' (HA 1985).

Wirral
Unnamed [Statement of reasons] A wheelchair user and Consultant Planning Inspector who had always used the second bedroom as a home office, with the landlord's knowledge from the start, had the FTT declared that the 'second bedroom' was not a bedroom.

St Helens
Unnamed. [Decision here] Pure room use case. [Note here]

Liverpool
Unnamed [Statement of reasons]. Article 14 discrimination where couple unable to share room. MA & Ors distinguished. [note here]

Manchester
Unnamed. No Statement available. The appellant had been continuously entitled to Housing Benefit since before 01/01/1996. In 1998 the tenant had moved properties. The tenant experienced severe subsidence in her first property rendering it uninhabitable and this was the sole reason for the move. The Council accepted that the subsidence constituted a 'natural catastrophe' for the purposes of s.4(3)(a) of Schedule 3 of the The Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 but still disputed that the tenant qualified under the pre-1996 exemption. The FTT allowed the tenant's appeal.

Kirklees
Unnamed. Decision. Room of 43 sq ft too small to be a bedroom. Reg B13(5) presupposes that bedroom must be large enough for one adult or two children under 10.

Derby
Unnamed. Decision. Room too small to use as a bedroom. Door opened inwards, preventing even a single bed.

Kettering
Unnamed. Statement of reasons. Tenant severely disabled with MS, requiring overnight case. Allocated '3 bed' property by Council as only suitable property. One 'bedroom' used for physiotherapy equipment, the other as a television room. Tribunal finds lack of any realistic alternative to current property and "the promise having been given the appellant had a legitimate expectation that her present accommodation would be her home for life and there is no overriding public policy requirement that justifies resiling from that promise. There is a straightforward means of keeping the promise. The fact that it involves a modest increase in public expenditure does not constitute sufficient reason for going back on the promise". (Apparently treating Council as landlord and Council as benefit authority as unitary body).

Norwich
Unnamed. Decision Notice. Bedroom too small and never used as a bedroom.

Newcastle
Unnamed. Detailed decision notice. Bedroom had been used as bedroom by younger children. Since used as storage area. Reasonable for older children to require larger room. Landlord's view of bedrooms not determinative and benefit authority had not inspected/investigated.

Bexleyheath
FTT appeal but Post Fife UT appeal decision. Decision Notice. Room of small size and too awkwardly shaped, with sloping roof, and too hot to be a bedroom because immersion heater and boiler in room.

Enfield
Unnamed. Third bedroom 'not in fact a bedroom'. Local Authority didn't turn up. Decision here. No further details.

St Helens
Unnamed. Decision Notice. Room use - room used as office/storage, dressing room and for sewing. Post-dates Fife UT decisions, but lacks detailed reasons.

Middlesborough
Unnamed. April 2015. Decision notice. Shared care of child decision, made after MR in the UT and distinguishes it as based on error of law. Report here

163 Comments

  1. Pingback: Landlord Law Blog Roundup from 30 September

  2. Bedroom Tax, Adult Daughter and a spare bedroom for Carer/carers, has anyone appealed and won?? Need urgent replies as time is running out, need help making case being sussesful

    • This may reach you too late but one way round this is for your daughter to be named as joint tenant. As you know it is only the tenant or spouse who can normally be granted the room but if she is on the tenancy agreement she would be allowed the exemption. Although you then have to prove the need for care and that it is happening regularly. In this way there are no real’exemptions’ at all as different LAs interpret the rules differently. Some demand that the care is every night, some are happy if it’s just regular. But the first step is getting her name on the tenancy agreement.

    • Sue, it isn’t as simple as that. The landlord would have to agree to change the tenancy to a joint tenancy and for the daughter to be joint tenant. You can’t unilaterally decide that someone is your joint tenant.

  3. I have a case next week. Relying on Burnip and the concept of “reading in” an inerpretation of the Regs which does not discriminate against a disabled person who is not the claimant/tenant or partner. I don’t know of an identical case but you might want to look at Rightsnet for a similar case Ruth Knox

  4. I should have said also look at CPAG arguments in the judicial review they are taking about children who need overnight care Ruth

  5. How do I get a court hearing for the discrimination and persecution that this law breeches European legislation.

    • That argument has already been made in Judicial review and will be in front of the Court of Appeal shortly. But it isn’t ‘European legislation’, it is the European Convention on Human Rights, which is something else again.

    • A friend of mine has had her son added as joint tenant and the council added his name without any argument. I suppose it depends on how sympathetic your council or HA is.

  6. [Just to point out, Ruth is commenting on the Liverpool case]

    I am commenting on my own case because I think some aspects of the decision are interesting and I would welcome further comment. (a) I don’t think we should conclude from the rejection of the size decision that size isn’t important but rather that the case needs to be made strongly and that it is more effective where there is strong evidence of alternative use as well. The room was bigger (but not over 70 square feet) if the alcove could be used and I am now hearing of other successful “size” first tier tribunals. It wasn’t my main focus in this appeal and probably I did not put the arguments as clearly as I might.
    The main problem in arguing the discrimination was that Article 14 has to be linked to another Convention right. Where the claimant is also the disabled person it is easy to link up with Article 1, Schedule 1, housing benefit as a possession. However, in this case it was the non-dependent who was the disabled person and the non-dependant had no right to housing benefit. The judge managed to pick his way through this, but it was a problem for me. The other point is, the judge reached the conclusion by comparing a claimant with a disabled partner against a claimant with a disabled non-dependant and decided there was no justification for the difference in treatment and I am delighted with this. However, when I was preparing the case I was thinking more in terms of:
    (1) A person with a disabled non-dependant (who needs overnight care) is being treated in exactly the same way as a person with a non-dependant who is not disabled,
    (2) to treat these two claimants with different needs in the same way is indirect discrimination (as in Gorry etc)
    (3) The discrimination is not justified by any overall policy etc
    (4) The discrimination can be put right by reading in “or non-dependant” as the judge has done
    So we reach the same conclusion but by a slightly different route and this seems to me to link up more closely with Article 14. I’d welcome comments on this
    Ruth

    • Thanks Ruth, that is interesting. I’d have thought a link with Art 8 would also be arguable, as well as A1 P1 via claimant’s right to HB for rent in relation to household. The justification on policy was perhaps the dangerous point, given R(MA), so the Judge’s more direct route in finding an immediate equation with a partner requiring overnight care – being exempt – and thus unjustifiable discrimination is perhaps a safer route (and stronger argument).

    • Great result for the claimant. And some great work from you, Ruth, it would seem. As with the ruling in Glasgow though, this remedy of ‘reading in’ doesn’t really work in a wider context, does it? It’s not just the reading in of a missing conjunction, or a matter of interpretation, but a pretty fundamental adjustment to the regulations that Judge Jones is trying to affect.

      As the regulations stand, I just can’t see how they can be interpreted by decision makers as the judge suggests. Surely the only remedy to make the regulations Article 14 compliant is for them to be changed.

      Local Authorities have a legal obligation to prevent this discrimination too, but it seems to me they cannot do so by means of housing benefit. Without sufficient legal precedents to identify those discriminated against (no matter how clear it might appear to some), many local authorities aren’t willing to prevent it by means of DHP.

      It’s frustrating having to wait so long for any binding decisions on these matters, and I for one can’t wait until we get some real clarity. Until that time, these FTT decisions will have little effect on most of those people facing discrimination under these regulations, especially as DWP guidance will continue to advocate against them to the last.

      I can’t see these specific disability cases being won back by DWP at the Upper Tribunal unless the appellants are poorly represented. MA & Others shouldn’t present any barrier.

      Lord Justice Laws says in point 88:
      ‘For reasons I have given, the absence of a precise class of persons (those who need extra bedroom space by reason of disability), which can be identified in practical and objective terms and sufficiently differentiated from other groups equally in need of extra space but for other reasons, does not take the case out of Article 14. But it is a very powerful factor upon the question of justification. In Burnip (or rather Gorry) the Court of Appeal was faced with a discrete group, exemplified by Mr Gorry’s daughters: families with children who could not share a bedroom by reason of their disabilities. The court concluded that such persons suffered unlawful discrimination by the application of the private sector provisions equivalent to B13. But I do not accept that that approach can be applied here, where there is no such discrete group…’

      Claimants with non-dependants requiring regular overnight care are a ‘discrete group’ or ‘precise class of persons’. As such, under the above reasoning the discrimination towards them is not necessarily justified and should be looked at in the same light as the Gorry case. The same goes for disabled couples unable to share, perhaps even those requiring space for medical equipment or living in significantly adapted homes. If this were to be pointed out, I can’t see how the DWP could use MA & others as a barrier.

      As a colleague pointed out to me, many of the FTT judges – unlike the politicians – clearly appreciate the reality of the situation that many claimants find themselves in – and of course the impact on other publicly funded services of these cuts – so are rather overreaching themselves in order to try and address the problems that the bedroom tax and other cuts are producing.

      But these little sticky plasters only help the claimants directly involved and are liable to fall off. It’s fairly clear, at least to me, that there are numerous groups with specific needs and circumstances who are being discriminated against due to their disability (or that of a family member), just like with Gorry, and that the current regulations are therefore unlawful when applied to them.

      Only changing the regulations will fix that. It’s just so frustrating how simply that could be done without all the cost and strife.

    • The Hereford judgment despite being a LHA case argued very strongly against LJ Laws position in MA (&Ors) that a precise class of persons could not be determined.

      It gave a precise class to be (a) middle or higher rate DLA care, and (b) a letter from a doctor or other medical letter stating the need for a separate bedroom.

      The judge stating he had the assistance of a very experienced HB officer to explain this criteria which is used elsewhere to establish a “precise class’ of person(s)

    • Hi Ruth your comment was so useful to me as I have my 75 year old mom living with me with (no savings) who is severely mentally impaired with later stages of dementia. The council states she is a non dependant and has to pay the non dependant charge and council tax as they do not take into account the fact she needs to pay for her overnight care or care when I am away. I am going to tribunal soon I am waiting for a date however would the fact they have treated her no differently to non dependant that does not need overnight care or have care cost be the same discrimination as in the Gorry case? Love to know your thoughts as I am writing my final augments to send off for my case.

  7. Think the Rochdale appeal is a real victory – obviously there are specific circumstances and it can’t go straight across the board but it establishes an important principle Ruth

  8. Pingback: Bedroom tax: exemptions and tribunals - Lexology

  9. Pingback: 'Welfare Reform', with a Bedroom Tax Flavour — Home, Security?

  10. Pingback: hertsdirect.org What to do if your housing benefit is restricted

  11. On checking the statement of reasons. Both Liverpool ones and Truro. All come up as the same decision!

  12. I had to down size because of my bedroom tax to since find there was an error in my rent i am now fighting for another property and my removal costs payed back to DORSET CHRISTCHURCH, what my landlord done was sole destroying i lost my husband then i lost my home , i also had 2 possession orders on my mat when i returned from my husbands funeral, an all i got was an apologie, which i did not except they have destroyed my life an i shall fight back to get what they took off me through there incompetence, any one willing to out there willing to give me any advice, i want fight the size criteria of the smallest bedroom in my previous property. thank you . LISA

    • Hi Lisa. I am so sorry to hear of your circumstances. I think it will depend on what written proof you have………….

      Have you got the correct measurements of the room. It has to be skirting to skirting. not wall to wall. And space taken off for the door opening and radiator.
      It’s about, useable floor space.

      You would have to go to a Tribunal.

      When, did you move out?
      I’m really not sure of the process of appealing, when you no longer live there.

      Were you told you could appeal?
      Did you apply for a DHP??

  13. i won my 1st tier tribunal. cases nos, SC164/13/01202, SC164/14/00162. it was for the 2013 decision and the 2014 one, both the same so done as one.

    murphy against copeland borough council. the hearing was on the 26/11/2014 at workington. judge wilson. in the statement of reasons the judge quoted the defination of a bedroom from the bolton UT case. he said “statements made by landlords designating a property as having x number of bedrooms in tenancy agreements or otherwise are not determinative and neither are statements made by claimants on, for example, benefit claim forms”.

    “the tribunal found that the mere ability to fit a bed and some nominal furniture into a room does not render the room a bedroom for the purposes of the regulations.”

    “if the purposes of the regulations is broadly to discourage under occupancy of social housing then the fact that a room might be used on occasion for example by a guest to sleep in but is reasonably not used by the tenant as a bedroom on a daily basis does not give rise to under occupancy”.

    the tribunal found that the room was too small to be used as an adult bedroom and would only be suitable for use by a young child on a long term daily basis. the judge said the room is too small to be let out to a lodger.

    the room “is too small to afford a reasonable degree of amenity for use daily as a bedroom”

    i am now waiting to hear if the council or the dwp will try to take my cases to the UT or that if they do they are refused permission.

    in the meantime the council have refused to refund the bedroom tax already paid or to increase the HB. the arrears are building up. i just hope my nightmare will end soon.

  14. Hi my name is lisa and i lost my home through the bedroom tax to then reallise there had been an error in my rent so i am fighting my corner to get back what the council wrongly took of me, plus i am fight the bedroom size of the smallest bedroom in previous property i lived in, there is 2 questions i hope you dont mind me asking you, i would like to know how and who i contact to challenge this size and what size dose the bedroom have to be before it is exempt from the bedroom tax. thank you lisa willcocks

  15. It destroyed me when i lost my home. my husband passed away unexpectedly which left me with the bedroom tax i got 2 possession orders were my HB had been over looked i was on DHP which should have protected me from the bedroom tax for a year and the council was still deducting my bedroom tax of £20 98p per week i had a refund from them and i have told them that i want another property and my removal costs payed and the years protection that i missed out on, i had to get a designated person which i have which is my MP so now i wait , i shall take my case to the housing ombudsman if need be. this has destroyed my life i have had to have councilling because of all the upset , i lost my husband then i lost my home. not good, some one needs to pay for what they done to me. i have had to fight this on my own i have had no one to help me, but it is worth it . lisa willcocks

  16. i have every bit of paper work to back my case, the actual floor size was 70sq feet 63.66 i wrote to the DWP concerning the bedroom size just waiting to hear. i was claiming DHP and i moved out the beginning of April 2014. if it was not for there error i would still be living in my property they apologize but i would not except there apologie. lisa

    • Hi Lisa. I am so sorry to hear what has happened to you.
      Before you can go to the Ombudsman, you have to go through the formal complaint procedure against your council. Or, they won’t deal with your case.
      It sounds as though you have a very good case.
      I think you need some legal advise.
      Have you been in touch with CAB and SHELTER?
      They may be able to help you.
      Were you evicted??

      Regarding the Bedroom Tax. You have to put in a formal appeal to the Housing Benefit department of your council. And tell them you want to go to Tribunal.
      Your case will then be heard by a Judge.
      Your appeal needs to be as detailed as possible.
      It’s been made more difficult to win on room size, since the FIFE case. (You will find details of the Judgement on here.)
      Going direct to the DWP is no good.
      They will not deal with your case.

    • As I said. The DWP will not do any thing………
      I’m not clear on how the Bedroom tax, was affected by your Husbands death??
      Did you have separate bedrooms??
      How/Why is room size, relevant??
      I’m confused, by that, sorry.
      ……………………………………………………………………….

      When the room was measured, was it, skirting to skirting? NOT, wall to wall.
      Deductions have to be made for the radiator and door opening.
      It’s about useable floor space.

    • Lisa

      This sounds like it has been a terrible time, but I’m not sure I follow what has gone on. While there is usually a 12 month stay on the bedroom tax applying following someone’s death, this would only have an effect if that person’s death had made the tenant liable for the bedroom tax deductions. I can’t see how the death of your husband would change things as you would be expected to share a room anyway.

      I don’t think a challenge based on a bedroom size of 70 sq ft or 66.66 sq ft is likely to succeed any more – see here for why.

      If you were awarded DHP for the full period of the bedroom tax deductions and in an amount that covered the full deduction, this should have been brought up at the possession hearings. If there was any suggestion that the arrears figures were wrong the Court would at least adjourn so it could be cleared up. But if the Council did fail to credit the DHPs, that is definitely a complaint to the Ombudsman. You are, I think, out of time to appeal the possession order. There may be some other claim against the Council, perhaps – I couldn’t say on what you’ve told us. But I don’t think there is any way to make them give you another property, I’m afraid.

  17. Thank you for your reply, sorry i did not tell you but i am at the second stage of my complaint which is the DESIGNATED PERSON, which is my MP. i wrote to NICK CLEGG, letting him know my story and he sent my letter to the DWP. i did send the paper work to the council and i phoned the tribunal for advice and they both said it was not a tribunal matter , it is to do with my HA/LANDLORD. no i was not avicted i had to move because i could not afford the bedroom tax all though i was on DHP. thats when i realised there had been an error in my rent. i have been to the CBA and sorry to say but i have got no were , SHELTER has been a big help.. LISA

    • Hi, Lisa.
      Usually, when you write to someone like Clegg etc. Your letter is always passed to the DWP
      ……………………………………………………………………………………
      If, I have this right, you have 2 separate issues going on.
      Maladministration against your Council. That your MP is helping with.
      And, you are in the complaint procedure against them, with a view to going to the Ombudsman.
      That is NOT a matter for a Tribunal.
      ……………………………………………………………………………………
      Then, there is the Bedroom Tax. On room size?
      As your Husband died, you should NOT have been liable straight away, anyway.
      I THINK, it’s 52 weeks grace. But, that needs checking.
      If you want to Appeal the Bedroom Tax. Then, you do have to submit a formal appeal, to the HB dept of your council. As it is they who make the decision.
      And, with this, you, MUST state that you WILL go to Tribunal.
      And, your case will be heard by a Judge.
      You can request form GL24. Your submission needs to be very detailed.
      ……………………………………………………………………………………..

      Make sure, you ONLY deal with them in writing and keep copies of everything.
      No phone calls. You must have a paper trail.
      If, you had anything in, get a receipt. If posted, send by recorded delivery.
      ……………………………………………………………………………………………

      CAB are usually, very busy. so, may not always be able to help.
      Try this. http://www.lawcentres.org.uk

  18. Hello Alison. Have you posted full copies of the Statement of Reasons for the cases you won? It sounds as if they are perfect examples of how we can use the Scottish Upper Tribunal decisions in certain situations and I find that using a SOR from a First Tier Tribunal can help support my argument, even if not legally a precedent. Ruth

    • Hi Ruth,
      Do you have any advise for people now going to Tribunal on room size.
      SINCE the release of the FIFE Judgement???

      We have already heard, (On our Facebook Group).
      A couple of people have lost their Tribunals.
      Where the Judge has used the Fife decision.

      As yet, we have not seen the Judges notes.
      As to how/why, they have reached that decision.

  19. hi ruth, i dont have a scanner atm so cant post the actual copy of the SOR. i cant even read the judges notes so i dont think they are much good. i quoted the relevant bits about size and how the judge said even if you can fit a bed and nominal furniture, the room would then have so little floor space to move or access storage or to get near the window or heater that the room could not reasonably be used daily by an adult as a bedroom. “The tribunal decided that the mere ability to fit a bed and some nominal furniture into a room does not render a room a “bedroom” for the purposes of the regulations. The tribunal found that this room would take a single adult bed but that it would not serve as a bedroom on a permanent daily basis. That being the case, a bedroom should offer some reasonable utility beyond merely having the physical space to take a bed. It is in this context that the tribunal found the provisions of part X of the housing act 1985 to be persuasive when considered with a purposive construction of the regulations.” also “Guidance may also be persuasive. In this respect HB/CTB Circular A4/2012 appears to presuppose that regulation B13 intended that for a room to be defined as a bedroom such a room should be large enough to be appropriate for use as a bedroom by an adult or by 2 children. This arises from a suggestion in circular A4/2012 itself when it considers steps which a tenant could take to mitigate the impact of a rent restriction. The guidance suggests, in this context, that a tenant so affected could take in a lodger. In this example, it can be supposed, that the lodger is envisaged to be an adult person. The implication is that the bedroom rented to a lodger would be of a size able to accomodate an adult part X of the housing act 1985 is persuasive that the room in issue in this case is too small for that purpose.”……….i had also raised health and safety issues that a tiny room with furniture taking up almost every bit of floor space was dangerous,could result in hazards of trips, falls and banging against obstructions and protruding parts of furniture but the judge did not address this, nor include it. to my mind it is a powerful argument and one i fully intend to be raised if the case does go to upper tier tribunal. but hopefully for me,the council or dwp will be refused permission to take it to UT or will decide not to try to themselves upon receiving this SOR and it will be allowed to rest at last. so far the council have fought me every inch of the way on every point so i am not feeling safe yet.

    • Hi Alison. Wasn’t your decision made BEFORE the release of the FIFE Judgement??
      Therefore, it probably can’t be used in future Tribunals?

      I ‘think’ Giles has said that this is no longer an option??
      And, winning on room size. Is going to be very difficult from now on??

  20. hi ruth, i dont have a scanner atm so cant post the actual copy of the SOR. i cant even read the judges notes so i dont think they are much good. i quoted the relevant bits about size and how the judge said even if you can fit a bed and nominal furniture, the room would then have so little floor space to move or access storage or to get near the window or heater that the room could not reasonably be used daily by an adult as a bedroom. “The tribunal decided that the mere ability to fit a bed and some nominal furniture into a room does not render a room a “bedroom” for the purposes of the regulations. The tribunal found that this room would take a single adult bed but that it would not serve as a bedroom on a permanent daily basis. That being the case, a bedroom should offer some reasonable utility beyond merely having the physical space to take a bed. It is in this context that the tribunal found the provisions of part X of the housing act 1985 to be persuasive when considered with a purposive construction of the regulations.” also “Guidance may also be persuasive. In this respect HB/CTB Circular A4/2012 appears to presuppose that regulation B13 intended that for a room to be defined as a bedroom such a room should be large enough to be appropriate for use as a bedroom by an adult or by 2 children. This arises from a suggestion in circular A4/2012 itself when it considers steps which a tenant could take to mitigate the impact of a rent restriction. The guidance suggests, in this context, that a tenant so affected could take in a lodger. In this example, it can be supposed, that the lodger is envisaged to be an adult person. The implication is that the bedroom rented to a lodger would be of a size able to accomodate an adult part X of the housing act 1985 is persuasive that the room in issue in this case is too small for that purpose.”……….i had also raised health and safety issues that a tiny room with furniture taking up almost every bit of floor space was dangerous,could result in hazards of trips, falls and banging against obstructions and protruding parts of furniture but the judge did not address this, nor include it. to my mind it is a powerful argument and one i fully intend to be raised if the case does go to upper tier tribunal. but hopefully for me,the council or dwp will be refused permission to take it to UT or will decide not to try to themselves upon receiving this SOR and it will be allowed to rest at last. so far the council have fought me every inch of the way on every point so i am not feeling safe yet.

    • Hi Alison, it MAY be an option to get back in touch with the Tribunal. (In writing)
      And ask if they could send you a typed up version of the Judges notes.
      Because, you are unable to read them??

  21. oh i see debbie so according to you, a legal expert, size issues can no longer be used now rather than argued in more detail than they used to be.

    • I’m sorry. I have not meant to cause you any offence??
      I certainly am not an expert!!
      I am merely repeating what Giles has said in his blogs. After Fife.

  22. no thank you debbie. the people still arguing are the council and dwp. i just want it over before it drives me completely insane

  23. maybe you should reread then because the fife judgement has not made size irrelevant in arguements at all. in my case the judge has gone into details as to why and how the room is too small. he has not just left it at dimensions alone. he has stated that alto a single standard adult bed could be fitted into the boxroom and possibly a small chest of drawers and a wardrobe there would be so little room that it would be very difficult to access the window or the heater. that the floor space in front of the storage would be so tiny that accessing them and using that space would be difficult. this is precisely the kind of detail which people are now expected to put forward and not to rely on measurements alone as in saying because a room has 56 sq ft it is or is not a bedroom. people now have to go into detail as to why and how it is too small. so just dismissing my judgement is not very helpful.

    • Alison,

      I think that sadly the Fife judgment will in future be used against arguments like ‘too small for a lodger’ or ‘too small for an adult’, or even ‘too small for permanent use’. The ‘presumption’ in HB/CTB Circular A4/2012, for example, was expressly ruled out in the Fife UT decision.

      But you are right that the kind of detail about the difficulty or impossibility of practically using a room as a bedroom (lack of access to window, or heater, not being able to open cupboards etc.) would still be arguable, at least in my view..

      If the LA/DWP do appeal then you should be sent a detailed statement of reasons by the FTT, as that is a condition for an appeal.

  24. giles, the quotes are from the detailed SOR sent by the FTT. the dwp or council are going to ask for permission to take it to UT using those. i am waiting for a letter to tell me if either the council or the dwp have had permission to go to UT or if they have been refused. i very luckily got in just before the fife farce so have the advantage of that at least.

  25. Hi Alison. There appears to be some confusion. I was NOT dismissing your Judgement. AT ALL!!!
    I asked if your tribunal had been before or after the Five Judgement,
    I had thought it had been before. So the Judge may not have referred to it.
    I know there have been a couple of tribunals since Five, where ii has been used. And they have lost.
    Could well be, that they weren’t as detailed as yours.
    Until we see the Judges notes on those. We won’t know.

    I meant, perhaps ask for your Tribunal Judges notes to be typed up. As you can’t read them.
    Perhaps Judges handwriting is on a par with Doctors!!

  26. Thanks Alison. Those quotes are really helpful – and if you can get it scanned at some point and put on the Nearly Legal site that would be even better! In our own experience we have found that the LA does not appeal but the DWP does. I have found with the bedroom tax cases that the First Tier Tribunal does refuse permission to appeal to the Upper Tribunal, but that the DWP then gets permission directly from the Upper Tribunal. So you are right – you are not out of the woods yet! Ruth

  27. Sorry, I assumed Alison’s was after the Fife judgement. However, as I said in an earlier post, I don’t think that the Scottish UTT decision rules out size cases at all; it just makes them a lot harder. The judges made it clear that it has to be a realistic bedroom and that just fitting a bed into the room but with no additional space is not enough. I am trying to adapt our standard submission on size following this judgement and I will be happy to post a copy on the website in the hope that other members of the group will be able to identify weaknesses in my arguments and also suggest other points to make. Ruth

    • mine was on the 26th nov.
      the council had asked for it to be after the fife case but lucky for me the FTT didnt oblige them.
      so i was lucky to get in just before.
      the judge would have read the fife ruling before he issued his SOR. so i think it is a good argument that alto a single standard adult bed would fit into a part of the room, it would take up almost all of the floor space, leaving just a small gap by the heater and the window. he said this would allow limited at best access to both.
      the remaining space, (apart from a 6 inch strip floor space between the bed and the stairs bulkhead), is only about 3ft wide by 3 and a 1/2 ft long, in that, the council argued, could fit a chest of drawers and a wardrobe. the judge stated access to those would be very awkward and difficult also.
      practically the room would not be functional as a bedroom with these crammed in items and a tiny bit of floor space. so going into the nitty gritty of all this in detail is what they want it seems.
      i may be lucky in my time frame because of getting my win just before the fife ruling.
      i will be waiting very anxiously to see what the situation is.

    • Fingers crossed for you Alison.
      You seem to have also been ‘lucky’ with the Judge you had.
      That seems to be a bit of a ‘postcode lottery’.
      Some Judges, appear to be more supportive than others.

      Good Luck x

    • Hi Ruth, That would be extremely welcome. To have something to ‘work from’.
      I help on a Facebook group. Specifically, Appealing the BT.
      And so it would really help those appealing on room size.
      Any chance you could put it in a pdf file to download please?
      Thank you.

    • Ruth

      Just to point out that we’d need to OK anything going up on this site. And that we are careful not to offer legal advice on the site – information and opinions, yes. Advice, no.

    • I’d be more than happy to have it sent to my email address.
      If, you can’t put it on here.

  28. 3rd time lucky debbie. the 1st tribunal, i lost but got it set aside when i asked for the SOR.
    the second one was a farce and only adjourned so the council could send a colleague, supposedly an expert on measuring, to agree with their 1st measurer and using the same tape measure method which the judge had said was bad and a laser should be used.
    i think i only won this one because i had a lot of detail, even tho he didnt use my health and safety argument and i thanked the judge at the end, which he was surprised at for some reason.
    ruth i would be very interested in your argument letter in light of the fife ruling. i may have to go to upper tribunal and argue some more if the saga continues.

  29. Still drafting it, Debbie! I could put it in PDF but it is in Word anyway, which I would have thought would be easier. Ruth

  30. Yes, Giles, I was hesitant about doing it, and it may be that this is not the right forum in any case, but if I did draft it it would not be as a “model” but as a draft open for criticism and improvement. Ruth

  31. I could send it to individuals by email, but I think a better approach might be for me to outline the arguments I think should be put forward in a submission, and for others to comment on it. This is a new area for everyone and I don’t want to set what I write up as any kind of definitive version. Ruth

    • Doing it in word would be fine.
      And, yes, if it’s ‘open’ to ‘being tweaked’.
      Then, suggestions could be made.

      If Giles, won’t allow it on here. (And, I understand his reasons).
      How about sending it to Joe Halewood, for his input??
      And, also, maybe Reclaim. (Juliet Edgar)

      Then, it could be shared.

      Which would be really useful, Ruth.

      Doing a submission for Tribunal, is very daunting for most of us.

      But, since FIFE. It’s even more so.

      We have always referred to won Tribunals, on the same grounds.

      But, I think, Giles, has said?? That’s no longer an option??

  32. Hi, I think Debbie is right, it might be better to put my draft submission on Joe’s website. However, here is a kind of summary as to what I think the legal issues are.
    (a) They have ruled out the “reading across” of the 1985 Housing Act (1987 Scotland). In this specific case I can see the arguments for not applying it (differences in use of living room, ages of children etc) but I don’t think they apply to the Housing Act 2004 (don’t know the date for Scotland) which is to do with H and S hazards in residential accommodation. I also don’t think that there is a general ability for regulations in one Act never to bind other legislation. For instance nothing in the bedroom tax regulations mentions unsealed gas appliances, but I doubt any LA or tribunal would ignore the 1998 Gas Safety regulations and call a room containing these a bedroom. The Housing Act 2004 gives LAs the duty and the right to investigate hazards in residential properties. Hazard 11 is crowding and space. If asked to investigate, they must do a risk assessment according to the HHSRS scoring system and the Operating Guidance on this. Although the assessment of hazard is complex and does involve judgement calls, it is not random. The 2009 LACORS document provides a detailed guidance on assessing this hazard, and makes it clear that a bedroom under 6.5 metres will (almost) certainly be a hazard. Now I am not expert enough to say how high they would score, so they might only be considered a Category 2 hazard, which allows but does not require the LA to take action. But even so, there is no doubt that they would be identified as being a hazard because of crowding issues. It is not really up to the Local Authority or the Tribunal to take small rooms as a nice little challenge and produce a layout of furniture or suggest ways of making beds suitable for living on a barge. The definition of a hazard may be complex but it is not subjective. The point of the bedroom tax is to mitigate overcrowding. It would therefore be perverse to interpret the regulations in such a way that a room is identified as a bedroom if, once it is used as a bedroom would trigger overcrowding. My point is that the HHSRS, if it is not binding, is certainly compelling.

    The Upper Tribunal also more or less dismissed various reports starting with the Tudor Walters recommendations. Of course they are not law. However they must have a bearing on the everyday interpretation of the word. I would argue that if every report since 1918 recommends a minimum size for bedrooms in the region of 6.5 to 8 square metres (which they do effectively) then a reasonable person understands that this is not too generous a standard to expect for a bedroom for a social housing tenant in 2015.

    In any case, the Upper Tribunal does concede “warning bells” on size. It also refers to other issues such as privacy, storage of clothes, somewhere to put a glass of water (and what about dentures, alarm clocks, make up?) I think in practice we will be doing lots of plans, showing lots of furniture arrangements. etc. so as to establish that because a room is too small it cannot afford the amount of privacy, storage etc necessary.

    On another issue, the Upper Tribunal said it was not “self-evident” that Reg B 13 presupposes a room large enough for two teenage children. I think it is self-evident. If a couple with two teenage daughters are in a house with three upstairs rooms then they are considered to be under-occupying. This is because the couple can occupy one room and the teenagers the other. This therefore presupposes that one room is large enough for a couple and another is large enough for teenagers to occupy. This must therefore assume SOME minimum size. What is it?

    On the issue of Reg B13 (6) I think we need to look at reasonableness again. There seems to be a suggestion that a very small room might be suitable for an overnight carer (I assume a foster child would not be considered to need less space than any other child). Is the purpose of the legislation therefore to move out someone with a very small ” extra” room, in the hope that a disabled person who needs a carer comes along to occupy it? Or to move in someone with a child under 1 who will need larger accommodation after the child’s first birthday. This would create a lot more turbulence in social lettings, and make allocations even more difficult for Housing Associations than they are already.
    So anyway despite the Scottish Upper Tribunal decison I think there is still a lot on size to be fought on.

    • Hi Ruth.
      It is a very complex issue. And the difficulty is that each case is different to another.
      And so, it becomes a mine field for anyone going to Tribunal.
      There surely are other issues that come in as well. Like discrimination. Particularly for the Disabled.

      Also, Mental Health. Which IS made worse by dealing with the stress and distress of having to go to a tribunal.

      We have referred to Lacors, in the past.
      I have just recently heard of a Tribunal win. Because the ‘small room’ contained the gas boiler and was too hot to sleep in. Room size, was ignored.
      I think, that MAY be the first on those grounds??
      I haven’t seen the SOR or Judges notes, as yet.

    • Yes, I know about MA & Others. I still think there could be ‘other issues’ still to explore.
      And we have the Care Act. 2014 to consider, perhaps.
      YES, it may be a Tenants ‘choice’ to go to Tribunal.
      But, is it really a choice if you simply can’t pay. So, you have mounting arrears. And a choice between eat and heat.
      What sort of ‘choice’ is that??
      And, most definitely, affects Mental AND Physical health.

    • Disability discrimination now all depends on MA & Ors in the Supreme Court, possibly apart from cases where DHP is not in payment – where I think there is still an argument following the Rutherford case in the High Court.

      Of course the bedroom tax and appealing affects mental and physical health – not arguing with that! But that is not a ground of appeal, in any way shape or form, I’m afraid.

    • Ruth

      The Housing Act 2004 will be of very limited use. It would rule out, for example, rooms with open gas fires or un-sealed boilers from being bedrooms. But the HA 2004 overcrowding provisions can’t apply to an unoccupied room. And the Fife decision has made clear that there cannot be a presumption that the ‘bedroom’ must be occupied by an adult, or even occupied full time.

      The 2009 LACORs document does not say that a room under 6.5 meters is likely to be a hazard. It is, in any event, a draft of guidance. It has no statutory force whatsoever. The same is true of Tudor Walters etc. And the simple fact is that there are lots of bedrooms, including rooms actually used as bedrooms, which are smaller than those recommendations.

      I have to disagree on the ‘self-evident’ presumption of Reg B13 – the regulation simply requires that the room potentially be a bedroom for a child.

      I agree on the reg B13(6) reasonableness issue, but it isn;y going anywhere yet. I agree that the Fife decision was nonsense on this. But there it is, pending appeal.

      There certainly are room size and use issues, but they are going to be very specific to the individual circumstances. This is why I’m not sure about a guidance document that goes much beyond a list of possible specific factors to raise.

    • Hi Giles. I’ve just sent you the details on the tribunal win on the room being to hot to sleep in. Contains boiler and airing cupboard.
      It is also a strange shape with a sloping ceiling. Also, size issue/floor space.

      Decision made after and using Fife.

  33. all this talk of hazard makes me think of my situation that i am so restricted in swapping. i do not think i will ever be able to swap as i have a very dangerous hazardous garden. i cant swap with anyone with children or disabled or old. it has steps and walls with drops and slippery parts. the whole garden is just a steep slope. i have nearly fallen a number of times and actually fallen twice. i could end up seriously injured or dead but the HA dont care. ive told them i or my son will sue them if it happens. but the HA are unbelievable. all they do is mess about, make smoke screens and fuss act like nothings wrong. pick on silly things and will not fix the issue. really it needs digging up and leveling and some work done on the walls but the cowboys they brought in only made the steps much more dangerous than before and caused loads of havoc just to do that so never again. i just hope i can win my court case to get my old place back.

  34. success!! hip hip hooray.

    i went on and on and on. i emailed loads of people, i made a huge pest of myself, i said i would go to small claims court with both the HA to force reclassification, to the council for not honouring my win. i did this several times to various people. i reiterated about the size and the dangers and all the rest of it, no space to utilize as a bedroom or to access storage and it has finally worked!!!!.
    they have given in. it has taken since getting the win notice on the 26th nov 2014 to today but i won.
    the council have decided to not seek to take me to the upper tribunal and have honoured my win, refunded my money and i am no longer liable for the bedroom tax!!.

    so yes persistence and bombarding them does work.
    it has been a long hard road and i felt often i would not win but this makes it all worth it.
    a nice little cheque for £931 plus a letter saying my housing benefit has been increased to the full amount.
    altho they do warn at the end of the letter that even tho they have decided to take it no further the DWP might so i am prepared for that but for now just happy and enjoying this bit.

    my advise would be to keep at them and be a pain in their side that is what did it for me.
    i kept emailing my mp and the head of the council as well as other people in the council. i went on and on and on till theyve paid me to go away.
    so on that happy note i will end with a huge smile on my face. :)

    • That is brilliant news Alison.
      Well done for persevering.
      You can breathe a huge sigh of relief!!

      Hopefully, the DWP will leave you alone.

      Now you can deal with your garden issues!!
      You will probably have to go to your Local Housing Ombudsman.
      If it’s not resolved via a formal complaint.

  35. thanks both. i feel very fortunate. i needed the respite badly from it. i know theres people who have won long before did that have had their cases stayed on the wirral UT case and they have not had any money refunded and are still accruing arrears,so i do feel very lucky to have had the council cave in like this and did not expect it at all.

    • There will be a shed load of new appeals, once the new HB awards arrive in about 7 weeks time.

  36. Hi Giles.
    Do you have any idea what is happening with the Carmichaels case??
    Isn’t that on discrimination?

    And do you have any idea about the decision of the Judicial Review against Sandwell Council. Using DLA as income??

    There are so MANY disabled people being refused a DHP.
    Because, their councils are using their DLA.
    It’s seems to be a postcode lottery.
    It is disgusting. It is supposed to be for your care and mobility.
    Not, for paying rent!
    The consequences are people are losing their mobility cars and can’t afford to pay for their carers
    And yet, this government have stood up in Parliament, on several occasions and said the Disabled are exempt.

  37. they keep saying it is saving a million pounds a day which is just blatant lying as it costs, not saves. i still am aghast at how it has carried on wrecking lives for so long when the only reason they could use parliamentary financial privilege to get it through against the will of the house of lords was if it was envisaged to save money. it doesnt, they keep lying it does and keep getting away with it.

  38. Just to pick up on some of the arguments Giles. On t I think the LACORS guidance was actually issued so has stronger status than draft. Whilst not statutory, think it is reliable because issued by LGA so that members would feel secure in their judgements against legal action by private landlords. The HHSRS Operating Guidance which LACORS is a guide to, is statutory. There is case law somewhere about similar LACORS guidance being admissible in relation to fire regulations.

    On the 2004 Act and actual overcrowding – by definition in bedroom tax cases there will pretty much never (Joe’s case was unusual) be actual overcrowding – because there is a “spare room”. So the argument will never be that there is a hazard. I will always have to be that were this room to be occupied by anyone (except possibly a child under 1) it would then become a hazard, and that it would be perverse for a LA to make a decision that a room should be used as sleeping accommodation when, if it actually were so used, a hazard would be identified by the same LA.

    On the “self evident” presumption of B13 that a bedroom should accommodate 2 people we could probably go round and round on this, but my way of looking at it is:
    If there were a couple and two children under 16 in a three bedroom house, they would be classed as underoccupying by one room – in other words the presumption in the legislation must be that at least two of the bedrooms are capable of accommodating two people. If there were a couple and four children in a four bedroom house, they would again be “under-occupying” because the presumption would be that three bedrooms were all capable of accommodating two people. These cases don’t arise that often – because they would require that particular combination of adult partners or siblings of the same sex, but it seems to me that if they did arise the LA would have to classify the dwelling as being as under-occupied and if they are classified as under-occupied then that can only be the case because all rooms less one that are classed as a bedroom are deemed to be capable of accommodating two people. .. And there is no qualifying part in B13 to distinguish between double and single bedrooms when it calculates maximum possible occupiers. Anyway it doesn’t look as if this argument will be much practical used to us in the near future – in practice we rely on showing the difficulties of the remaining room in the specific case.

    • Ruth. The very rare case apart, it will never be overcrowding if a ‘vacant’ room is occupied, HHSRS or no.

      And on the B13 ‘presumption’, the Fife decision is very clear. I’m not saying that it is the right decision but it is clear. As a result, your argument won’t run in the FTTs, as the UT has pronounced on the issue.

  39. From the way I read the decisions on Rutherford etc it seemed to me that in cases where the DHPs were refused you are actually in a much stronger situation in appealing. The only ” justification” for the discrimination was based on the DHPs being in place. So if your clients are in this situation Debbie, it might not all be bad news. Ruth

  40. I was on DHP for 52 week i should have been protected. but my land lord was still deducting my bedroom tax, i lost my home through this i have had a refund. the landlord thinks because they gave me a refund that is the end of it but if it was not for there error i would not have lost my home, i would not except there apologie and is now going to the Housing Ombudsman, i want compensation IE another property and my removal cost payed, i had to down size to a 1 bed in kent from a 2 bed in CHRISTCHURCH DORSET. i am also trying to challenge the size of the smallest bedroom in my previous property because i strongly believe i should have been exempt from the bedroom tax when my HB was awarded i took the case to the tribunal but they said it was not a tribunal matter. any ideas . lisa willcocks

    • Hi Lisa, I would say you have a strong case when you go to the Ombudsman.
      Given that you had been awarded the DHP. and yet your Landlord was still charging you the BT. Was this a Council or HA Landlord?

      I’m not clear on the full circumstances when you say you lost your home, yet, downsized to a 1 bed??

      You can only take a Bedroom Tax Appeal, to Tribunal.

  41. i had to down size because i could not afford my BT i was on DHP i should have been protected but my H/A was sill deducting my BT i realized after i moved, i lost my husband then i lost my home. like i say i strongly believe that the smallest bedroom in the property was under size for the BT when my husband died i was awarded HB the short fall was my BT If the bedroom is under sized surely i would not have had to pay my short fall ie BT, I could not manage financial thats when i was advised to claim DHP and i was awarded but like i say my BT was still being deducted i still could not manage financialy thats when i had to down size to then realize i had not been protected by my DHP . lisa

    • Lisa…… Surely, you should also have been protected by the 1 year protection clause??

    • that would only apply if the person who died was using the room that the BT was payable on. from what i can gather lisa didnt get HB when her husband was alive but got it after he died but the BT was deducted from it. she then got DHP. i dont know if DHP is paid direct to the HB dept of the council or to the claimant but again from what i can gather from lisas posts the DHP wasnt being applied to cover the shortfall in HB so arrears kept accuring. this caused her to move which she now regrets. the council have given her £800 back but she wants her old tenancy back or an equal tenancy and removal costs paid. all this could be won via a money claim (small claims) court but you need proof. i am doing that exact thing at present. the appeal or tribunal on room size could only have been done when you, lisa were living there and you got the decision notice. it cant be started now on a property youve left but if you get that or another 2 bedroomed place you could appeal then if BT is still around in that time in that scenario.

    • The Court, small claims or otherwise, will not be able to order the old tenancy back, or another tenancy. Neither can the Ombudsman.

      I’m afraid that there is no way of making the council give you (or Lisa) a tenancy of an equivalent sized property. And as you both have tenancies of other properties, there is no real basis for a damages claim for having to move, either, apart from just possibly the removal costs.

  42. i dont understand your situation at all lisa but if the council did make an error which resulted in you losing your home and losing out financially, and you can prove this, you can take them to small claims court. you take out a money claim online, if you are on certain benefits and dont have savings over a certain amount you dont pay the court fees. i am doing this with my ex council. i am claiming for 5 thousand for their errors which resulted in my losses. i might even be offered my old tenancy back, not sure if i want it or not, seeing as they handled my swap and other problems at the old property unlawfully.

    • I can’t see any way you could be offered your old tenancy back…. And, surely, someone else lives there now?? Or, is the property empty??

  43. yes i should have been protected but my BT my BT was £20 98p per week they was still deducting that while i was on DHP this is what i did not pick up on till after i moved and nor did my H/A they apologized for the errors and gave me a refund and i would not except the apologie , so now i will take the matter to the Housing Ombudsman because i want compensation ie another property and my removal cost payed. because if it was not for there error i would have had an exstra year to think about my options finacialy . i lost my husband then i lost my home if i dont get no joy from the ombudsman i will take the matter to the small claims court . thank you for your advise . lisa

  44. i dont understand. you said you got DHP. it can either be paid to the claimant or into the rent account. if it was paid to you then you would have/should have paid the HB shortfall using the DHP money. if it was paid into your rent account the HA would have known about it. so i am not sure what has happened there, why there was arrears and why the refund of £800 was given. unless you are saying the council gave you a letter saying you had been awarded DHP but then never gave it to you. if that is the case then your case would be against the council. the HA might not have even known you had been awarded DHP unless you showed them the award letter.

  45. my case is different giles. it involves a lot of issues including 1000s of pounds worth of goods left behind and i have been told that atm they are planning on having a hearing in my new county cumbria. the old tenancy was in bedfordshire and the swap permission should never have been granted due to a number of broken rules by the council.

    • I’m lost. If you moved, your responsibility to move the belongings left behind. And if you sought to swap, it can’t realistically be an argument on your part that the Council shouldn’t have let you, so it shouldn’t have happened.

  46. its way too complicated to go into and involves a lot of issues, i have stacks and stacks of evidence. it included fleeing a dangerous situation, being forced to move before being ready, money being extorted, the council bending and breaking rules to treat the swap like a cheap eviction, tort of interference of goods act (tenants belongings removed and disposed of by landlord without consulting the owner of the goods) but it is a valid case and winnable. this is evidenced by the council trying to have it struck out but i have such good proof emails, pictures, comments that they have said it will most likely be an oral hearing held at a court near me rather than a paper hearing.

    • thanks giles. if you trawled through the whole case youd see what i mean. i still cant believe now that the council treated me like they did. i can only assume they must have thought i was insane and incapable and that there was no evidence. so far they have just lied and denied everything even tho my evidence proves over and over their lies.

  47. Thank you for your help and advice, if i get no joy from the Housing Ombudsman then i will take the matter to the small claims court . lisa

  48. you have to make sure you have a case 1st lisa and who is it against the HA or the council. a vexatious claim without trying to settle 1st can involve costs against you.

  49. Sorry forgot to tell you that we was on HB when my husband died he was an OAP so we did not have BT i had to apply as a new claim when my husband died .

  50. have you been down shelter or CAB lisa. if you saw an advisor from one of those or spoke to one on the phone they should be able to help.

  51. i went to cab and they sent me down the wrong road they said it was a tribunal matter but it turned out it is not. i have contacted shelter and they put me in touch with the complaints department so that is were the stage three comes from IE the Housing Ombudsman , i have all the paper work to back my case.

  52. if the HA made an error in administering your rent account and didnt apply the DHP, negating the HB shortfall, the BT, then hopefully they owe you more than the refund they have given you, seeing as you moved because of it.
    but obviously i dont know.
    i hope you will get a good outcome from it.

  53. thank you , yes i did have to move because of it, plus they new they had done wrong, because they apologized and admitted there ERROR

    • Who? Your landlord or the Council? I’m still not getting it. Were you actually paid the DHP? Paid to you, or your landlord?

      And again, I have to say that sadly you will not get your tenancy back, or a tenancy of the same sized place. Neither the court nor the Ombudsman can order that.

  54. seems the whole system is corrupt and against the non rich person since the tories saw to that with their many policies and cuts/reforms. legal aid is now only available in exceptional circumstances and CAB are underfunded and over used as are the other services trying to cope with the demands.

    i have been royally stitched up. i was not even told when the hearing was and given no chance to file any particulars of claim nor to refute the downright lies and allegations of the council. the case was struck out and now i am expected to file statement of case and serve on the council and court by the 4th feb.

    it seems email filing isnt good enough as they have ignored all this. i will go to CAB and see if i can sort it but everything is stacked against you if you arent rich.

    i had a very good case under the Torts (Interference with Goods) Act 1977. i lost many thousands of pounds worth of goods along with my tenancy but because i am not rich i can be discriminated against and stolen from and all the rest of it. .

    so sorry lisa, i agree with giles now we might as just give up. they have all the advantages and we have none.

    this was legalised illegal behaviour by a huge corporation against an individual and they have wrecked everything i had and gotten away with it.

    • Alison, don’t get too wound up! This sounds like straightforward procedural stuff. Talk to the CAB about procedure for bringing a claim. You should have filed and served particulars with the claim form. It doesn’t sound like the case was struck out of you were ordered to file and serve particulars by 4 Feb. You can usually file with the court by email, if it has an filing address (but need to pay any fees!) but whether the council will accept service by email depends on them, you can’t just assume it. So serve paper copies by post.

  55. no it was struck out. they based the claim only on the very sparse initial claim form which i did file mts ago. they had the hearing without telling me they were having it.

    at the paper hearing the judge looked at the councils defense from their in house solicitor which was just all lies and denial and based his judgement on those two things.

    i had sent emails detailing things but these were not entered into evidence. like for instance the council accused me of not trying to sort it with them 1st before taking it to court. all of my proof of emails sent to the council before going to court were just not entered into evidence. a stitch up.

    my claim was based on Torts (Interference with Goods) Act 1977 but i was not given any chance to send in any particulars of claim. i did do this on the 14th jan but they had already had the hearing on the 30th dec 2014 without even telling me they were having it or giving me a chance to file my particulars of claim.

    if you were interested i could send you my particulars of claims emails which i had sent them on the 14th jan, too late. but would have to be privately as it has loads of personal details and things i wouldnt want seen publically. then you could give an informed opinion on all the facts.

    anyway hopefully the CAB might let me email them those and help me with this. i will go in today and see what they say.

    • Alison, I can’t comment or advise on your case, I’m afraid.

      If you weren’t informed of the hearing, you may be able to apply to set aside the order, but you suggest it was a hearing on the papers? In which case you wouldn’t be given a date.

      But I’m afraid it does sound like you have made a bit of a mess of the procedural side. There are things that have to be done at particular times and ways evidence has to be submitted. There are guides to this and being in person doesn’t mean the rules don’t have to be followed.

      Why have you been ordered to file something by 4 Feb?

  56. i will say more once ive been to CAB.
    if i can get CAB to help me with filing and serving on the council and the court a further statement of case by the 4th feb then i still have a chance. if i dont do that then it stands struck out.
    so best get myself off down to CAB.

  57. CAB were useless im afraid. if someone is rich and pays the fees themselves then money claim online is probably good. id say it must be. but for plebs stuck with the paper route id say dont bother. its a load of trouble and youd prob lose anyway, thanks to the legal aid cuts, its now all stacked against you.
    i will try emailing the workington court direct but im ready to give up now and just go to the media with the story instead see if they are interested.
    all it took was the councils solicitor to lie and deny everything on the councils behalf, all my evidence ignored as it was email, so stuff it i will sort it a different way.

    • Alison, I’ve done my best. There are court procedures to follow. You haven’t done so, but you have a second chance. Find help or find a guide to how to bring a claim, there are plenty out there. Stop blaming everyone else.

      Of course the council are going to defend the claim! And of course they will say you are wrong. That is a matter of evidence, which has to be filed in the right way at the right time. You can’t throw stuff at the court willy nilly.

      There hasn’t been legal aid for a case like yours for many years, by the way.

      I’ve tried to help, but you aren’t interested, it seems. So that is that.

  58. actually i have written a further statement of case and hope that will do for now but i only realized that that might do tonite. but without being allowed to email the pictures, emails from the council and all the rest of it it is not the proper case with the evidence

    the CAB werent any good.

    they printed out a 2 page thing saying how to bring a claim which is what you see when you do bring one on money claim online and another 2 page thing about consumer problem.

    the solicitor did lie and deny.

    but again without the emails i sent to the council and all the other proof i dont have the strong case it is.
    anyway we will see.

  59. Following advice from you and a year long delay my friend has finally won his first tier tribunal re the Bedroom Tax loophole, so thank you very much for all your help. I understand though that first tier tribunals are not binding. Are you aware of any cases where a local authority have refused to abide by a tribunal decision? The authority involved has been very obstructive from the beginning so this is a concern. Thanks, Sue.

    • Glad to hear it! And the Tribunal decision is binding on the parties – unless it is appealed – so they will have to abide by it if they don’t appeal. FTTs are not binding on other FTTs – which is why they are described as non-binding decisions.

  60. Hi,
    I appealed against this inhumane tax on the grounds that myself and my wife are both disabled and therefore have separate requirements regarding sleeping arrangements. My appeal was initially granted but Kettering Borough Council launched their own appeal (on, I have to say, some pretty dodgy grounds). This was stayed awaiting the MA & Ors appeal. I would argue that we could distinguish our case from MA on the grounds that we are treated as a couple first and two disabled adults second. Also MA & Ors does not involve two disabled adults occupying the same property (at least, it seems that way from my reading of it).

    I would welcome your opinion on this. I would also be grateful if you could give me some idea of the current state of play. I have heard nothing from the court for over six months now. I’m beginning to feel that I’ll be in my dotage before this is resolved.

    Many thanks,

    John Wilson

  61. Hi John.
    Giles will probably reply on the state of play for MA & Ors.
    As far as I’m aware. There is no change as yet.

    What’s your situation regarding the BT? Are they paying it as your case is stayed? Or, do you have a DHP in place?

    • MA & Ors in Supreme Court in the next month or so. Then judgment could be some months after that. MA does cover two disabled adults in same property.

    • I have a number of UT cases stayed for MA and Others. The UT told me that it will be heard in March 2016. Obviously there are then delays until the decision comes out (and I suppose further delays if it goes to the European court?) Ruth

    • Yes, March 2016, having checked. Then likely to be a few months for the decision. Going to ECtHR would take years, but wouldn’t stay the result of the Supreme Court decision, so no Tribunal would stay pending the ECtHR.

    • Hi Giles,
      Thank you for your reply.
      As far as I read the case, the Rourke family consists of two disabled adults – but they are a father and step-daughter. In my case, we are married and therefore treated, firstly, as a couple. This status overrides our needs as two individuals who both have separate needs resulting from disability. It is simply assumed that, as a couple, we will sleep together.
      I’m no lawyer so I might well have missed something here. However, the original judge agreed with me. Kettering Borough Council did not find an argument against this but nevertheless appealed on other grounds.

    • Hi Giles,
      Please forgive me if I sound like a complete idiot but the Carmichael case involved a disabled partner whose husband was her carer. As far as I can see, there is no mention of Jason Carmichael having a disability and, as he is his wife’s full-time carer, I don’t see how he could do this if he was himself disabled. The case seems to revolve around the fact that his wife needs a special bed and there is no room for a second bed.
      In our case, both myself and my wife have arthritic conditions which keeps both of us awake at night (but not often at the same time!). Each of us has separate needs – one of which is having our own bedroom so that we don’t disturb each other. The legislation though states that we are first and foremost a couple. I argued that ‘couples’ cannot suffer the affects of disability. We suffer as individuals, not as a couple. Our status as a ‘couple’ overrides our individual needs and this, I would suggest, contravenes our human rights.

    • Couples requiring an extra room by reason of disability of ‘one or both of them’ addressed in Court of Appeal decision – para 76. http://www.bailii.org/ew/cases/EWCA/Civ/2014/13.html

      The issue in the Carmichael element of MA is precisely discrimination against adult disabled couples, as opposed to children (Burnip). Whether the additional room is required by the disability of one or both of the couple I’m afraid I can’t see as making any difference to the legal issue.

    • Dear Giles,
      When I first became involved in this I was fighting a case against the bedroom tax. Shortly afterwards, I realised that there was (to my mind) a more important legal principle involved. Whether it pertains to the bedroom tax or any other issue, the question is simple: Why should we, as individuals with disability issues, be treated as a couple? It’s not really about rooms or government handouts. It’s about our rights as individuals who are misfortunate enough to suffer from a disabling medical condition. Our needs are individual ones and there seems to be a major logical flaw in the system if the law can assume that couples can suffer a disability.

      I cannot afford legal advice but I’m hoping that you can point me in the right direction. How do I get out of this bedroom tax mess and fight the case I believe deserves to be fought? As I see it, my only chance is to request that the case be distinguished from MA – but I have no idea how to go about this or whether I could get the tribunal to remove the stay on the case and get things moving in the right direction.

    • John

      I’m afraid that I can’t see a way to distinguish MA & Ors or to remove the stay. And I’m not sure that treating you as a couple is discriminatory per se, as all partners are treated as ‘a couple’ for HB purposes and it is hard to see why disability should make a difference to that. We can only hope that the Supreme Court will bring some sanity.

      If you are not getting DHP payments, though, you might want to consider this case – http://nearlylegal.co.uk/2014/05/an-obligatory-discretion/

    • Dear Giles,
      Surely the fact that only individuals suffer from a disability is self-evident? If I were disabled, and my wife fit and healthy, then my needs as a disabled individual would be taken into account. Or would we both be treated as fit and able because we are a ‘couple’?
      The status of ‘couple’ is simply taken as read and seems to have been pasted into the HB legislation without regard to individual needs resulting from disability. It is this that I want to change.

    • If you were disabled and your wife able, you would be treated the same way as a couple who were both disabled under the bedroom tax regulations. In each case, the need for an extra bedroom is ignored under the regulations.

      If your argument is that a couple should be treated as two individuals, then every couple, whether anyone was disabled or not, should be entitled to a bedroom each under the regulations (any any HB entitlement assessment).

    • My point exactly – but especially so when either one or both partners have additional needs due to disability. Therefore discrimination?

    • No, or rather no differently to treating a couple with one or more disabled persons the same as a non-disabled couple. Which is what MA & Others concerns.

      This is the point in the end, your argument about ‘individuals’ adds nothing to the discrimination issue and actually makes it harder to argue by saying that ‘everybody’ should have a separate bedroom entitlement, regards of disability.

    • Dear Giles,
      The Welfare Reform Act refers back to the Social Security Contributions and Benefits Act 1992 for the definition of a ‘couple’. It’s a definition which has been criticised in the past as being largely inadequate. We could of course go back to Hyde v. Hyde and define a couple as two people who have embarked upon “…. an honourable institution entered into for life to the exclusion of all others.” In this day and age, this hardly seems to be dealing with reality. The definition in the 1992 Act is wishy-washy to say the least. So what, exactly, is a couple?
      The current definition takes no account of the individual needs created by disability. There is also the argument that we are owed a duty of care by both central government and the local council. If our status as a couple allows this duty to be overridden then the law, quite simply, is wrong and needs to be corrected.

    • There is no ‘duty of care’ in that general sense in law.

      I’m sorry, but I cannot see why your argument about the individual is in any way an improvement on the arguments around discrimination in the current regulations against one (or both) of a couple who is or are both disabled. It stands or falls in exactly the same way on the discrimination point, but adds the politically and practically hopeless assertion that all couples, disabled or not, should be entitled to a bedroom each.

    • Dear Giles,
      I really must thank you for your advice. I needed to talk to a legal expert and I found your points both helpful and thought-provoking.
      I’ll continue to fight this case as I think there is a fundamental problem between the 2010 Equality Act (which pertains to give equal rights to the disabled) and the Welfare Reform Act (which seeks to take these rights away).
      Over the years of fighting this case, I have found every judge I sat before both tolerant, intelligent and prepared to listen to a complete amateur. Even if I lose, I will continue to believe that our legal system is the only thing protecting the common man.

    • John – thanks. One last point – when the disability discrimination challenges were brought in MA & Ors,they were not brought for ‘a couple’, but for the disabled individuals affected by the regulations. The challenges were on behalf of individuals as such.

    • Hi Debbie,
      We applied for DHP but were refused that our DLA and mobility payments were considered sufficient to meet our needs.
      We have been living with the reduction in housing benefit from the start. I can’t blame the council for this as they seem to be acting under direct instruction from the DWP.

  62. Hi John,
    Did you ask for a DHP reconsideration? I would ask your council for a copy of their DHP policy, for one thing.
    There is also, nothing to stop you from putting in a new application.
    DLA is awarded for care and mobility needs. NOT for paying rent!!
    And, since the Sandwell/Hardy UT judgement. It should not be taken into consideration as income.
    If, your council are ‘being directed by the DWP’. Then, I would suggest they have got it wrong!!
    Apparently, DHP’s are meant to help the disabled, more than most!!

    If, you believe your council are not ‘acting appropriately’ there is the route of putting in a formal complaint. Which, can progress to the appropriate Ombudsman.

    I presume you will have received a new HB award for this year. You could also, put in a new appeal.
    Form GL24. Based on this years decision.

    Have you been in touch with CAB and/or Shelter? There are also some solicitors that will work pro bono. You may be able to get some legal advise that way.

  63. The bed room tax is a case of extortion which is a criminal offence and should be tried in a criminal court of law. The maximum penalty is usually a maximum of 14 years imprisonment. No one is above the Law in this country even those in Government. Therefore a winning case in a criminal court of Law (Not a tribunal) a Judge can warrant the arrest of those ministers involved of this cruel policy (As DWP Ian Duncan Smith said to one of his department employees “No not Cruel to be kind but Cruel to be Cruel”) like those MP’s charged with fiddling expenses and receiving custodial prison sentences.

    • Sorry, but no – it can’t be a criminal offence, for a number of reasons. Not least because it is legislation approved by Parliament.

  64. Please state your number of reasons? Extortion is unlawful. Members of parliament (MP’s) who tried to get away with fiddling there expenses were given custodial prison sentences.
    A Judge has to carry out Statute Law. As stated no one or body is above the Law. You say “No” Are you a High court Judge? (what specialises in criminal law cases) The controversial bedroom tax is not legislative statue or common law. Its a un thought out bill and unlawful legislation made by an MP or MP’s brought into being which is disguise to be good to cause harm on the British public.
    Some people are winning there cases against the government due to protective laws.

    • Because it is statute. Secondary legislation, but debated and voted through by Parliament, and so far upheld as lawful in full, even when discriminatory, by High Court and Court of Appeal.

      You will find reasons why some people are winning cases on this site. Also reasons why many sadly aren’t winning their cases.

    • Can you tell me which Law statue book has this controversial and illegal Bedroom Tax printed or written in (British) Common Law? Extortion is illegal (worldwide). Extortion takes precedence over the bedroom tax. And as stated before “The bed room tax is a case of extortion.”
      A Judge has to carry out the Law if extortion is proven in a criminal court of Law. A Judge can sentence or warrant the arrest of those members of parliament (MP’s)

    • Oh, you need to get your woo sorted out. Common law and statute are distinct things. Regulation B13 of the HB regulations, passed as a statutory instrument, is where the bedroom tax is written in law.

  65. Common Law and statutes are inseparable.
    The Law courts in Britain (and worldwide) carry out “Common Law” which are statutes for the Judges to carry out. Example: Theft Act 1968. (Under the statutes of Criminal Law Ref: The Old Bailey Press.)
    The Bedroom tax is not a statute of “Common Law”. Extortion is.
    The Bedroom tax will not be found in any distinguish Law reference book because it’s an un-thought of Act and is unlawful under the Act of Extortion.
    The unlawful Bedroom tax and its regulations of Act of extortion if proven in a criminal court of Law the Bedroom tax would be thrown into the trash bin.

    • The Theft Act is (was) statute, not common law. I’m afraid you haven’t got a clue what you are talking about. Much though I would like to see the end of the bedroom tax, and I really would, this sort of sub-legal bollocks isn’t getting anybody anywhere.

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