There has been a lot of excitement about the Westminster FTT bedroom tax appeal by Mr Surinder Lall (eg Guardian, CAB). As I mentioned in my last post on the FTT bedroom tax decisions, it was hard to tell what had happened by looking at the decision itself and the press reports. Some, like the CAB, have taken the view that it was Mr Lall’s use of the second room to hold and use equipment related to his disability (he is blind) that was the basis of the decision. If so, this would be a ‘current use’ decision and highly significant, in view of the DWP’s position that ‘tenant use’ should not be a factor.
I’ve now spoken to the solicitor who assisted Mr Lall and got some more information about the case and the FTT decision.
The housing association landlord (or rather its predecessor) had bought the property in a dilapidated state. It was arranged that Mr Lall would become the tenant but that various alterations, including structural alterations would be carried out to make the property suitable for Mr Lall’s needs. The landlord consented to and participated in these alterations. Part of the purpose of the alterations was to make one room suitable for Mr Lall’s reading and other equipment required due to his being blind.
Thus, from the start of the tenancy, the obtaining of the property by the landlord, and the alterations made, it was clear that the purpose of one of the rooms was for use in relation to that equipment and it was not intended as a room for (potential) use as a bedroom by the landlord.
The designation as a two bed was an error by the landlord’s agent, which had been corrected by the housing association – so not a ‘redesignation’.
In this context, the decision itself makes sense. The room ‘was never intended to be a bedroom’.
So, this decision is, if anything, closer to the first Fife case, in that historic use is the key factor. The question was had the room either been used or been intended to be used as a bedroom. The landlord in this Westminster case had not intended there to be two rooms to be used as bedrooms in the time since it obtained the property and offered Mr Lall a tenancy.
What I think this is not is a decision based on ‘current use’ by the tenant. It is not based on a finding that this is a room originally a bedroom, or intended to be one, which is now used by a disabled tenant to store necessary equipment. It is perhaps a little irresponsible of Citizens Advice to suggest in their press release that it is that kind of case. An appeal based on tenant’s current use has yet to succeed, and, as the Fife cases showed, would not be easy.
My thanks to Coral Williams of Robinson Wilson solicitors, who assisted Mr Lall.
The SI bringing in the bedroom tax is written in the present tense and relates to rooms as they are now and makes no mention of how they were used in the past or how they might be used in the future, nor does it talk about rooms which ‘could be’ bedrooms. It is perverse of any council to pretend to a court that any room which does not have a bed in it and which is not currently used for sleeping is a ‘bedroom’, and especially when that room palpably has some other use, such as as a study or office or storeroom. The SI requires ‘bedrooms’ for the under-occupancy reductions to apply and an office is not a bedroom, nor is a study, a dark-room or a nursery. Compare this ‘historic use’ argument being used to determine whether or not a room is a bedroom to the tax laws. If Amazon move their London HQ to Dublin for tax purposes, does HMRC insist that they prove that they have historically been headquartered in Dublin before they cease to be subject to UK taxes? Of course not, they accept that Amazon’s headquarters moved the day they say they moved. Why is it that a tenant has to prove that a room has not been a bedroom for a number of years before it ceases to be a bedroom? A room surely ceases to be a bedroom the moment the occupant of the house turns it to some other use.
Andrew
I don’t think that is going to fly as an argument. It is clear that a room does not have to be used as a bedroom to be a bedroom. Simply because the tenant is using it for something else will not do, without more. See the Thomson case here.
Yes, I’d read that case, and the others. Some are mildly contradictory: for instance if the judge in the Thomson case had applied the same argument used by the judge in the Westminster/Lall case and decided to apply the ‘normal English meaning’ of the word ‘bedroom’ he would have found in favour of the appellant. My council is challenging my appeal even though one of my rooms is less than the 70 sq ft standard adopted by Fife FTT on the basis of the 1985(7) Housing Act. I am no lawyer but I think I and any other appellant should be entitled to the law as it is written and this SI requires ‘bedrooms’ in the here and now. Whether that will happen in my case is an open question.
The Judge in the Fife case did, expressly, apply the usual meaning of the term bedroom. The point is whether or not something is a bedroom is not up to whatever use the tenant decides to make of it. And that is the common useage. A three bed house would be sold as a three bed house regardless of whether the current owner used one as a study, would it not?
What was suggested in the Thomson case is that a non-bedroom use by the tenant which is somehow ‘reasonably required’ for the tenant’s continued occupation of the property as their home may amount to a non-bedroom. This is not an argument that has succeeded yet, but one could see it being made in disability related cases, for example.
The 70 sq ft decision in the Fife decisions is being appealed by the DWP. That will be interesting to see!
It strikes me that there’s a potential solution within this judgement.
Could housing providers not bring to an end an individuals tenancy and then ‘re-issue’ a new tenancy agreement on the basis of the clients needs? So, on the re-issue of the tenancy, it is made clear that the room is not intended to be used as a bedroom by the individual.
Does this get around the current use issue Giles?
It would only work in very specific circumstances, I think. It is effectively a re-designation, with the same issues that follow on from that.