A successful FTT bedroom tax appeal in Birkenhead has raised some new questions over ‘room use’ as an argument. The decision notice is here (HT Speyejoe).
The appellant had moved into the ‘3 bedroom’ property on marriage. He and his wife had lived there. A second room was used as a bedroom for her daughters when they stayed over. the third room, 7’8″ by 9’5″, was always considered too small to be a bedroom and used as a storeroom. On the death of his wife, the appellant moved the bed out of the second room. he then later used it as a gym, following developing disability issues. It occasionally contained a blow up bed for visitors.
The FTT found that one of the rooms had never been used as a bedroom and that second had been changed into a gym before the date of the bedroom tax decision.
The FTT went on to say:
The House of Lords Uratemp v Collins [sic] (albeit in a context of different legislation) held that the usage of a room defines what it is and that this depended on the facts at the time the decision was made. The Court also recognised that the housing provisions with which it was concerned in that case, recognised [sic] that circumstances might change during the currency of a tenancy. The Tribunal also relied in arriving at this conclusion on Upper Tribunal decision (Reference CH140/2013) [our report] applied by the First Tier Tribunal in Monmouth (Reference SC922/13/05323) [sic] [our report]. This of course means it is open to the Respondent to make a fresh decision based on a subsequent change of use.
Given this decision, there was no need to deal with the room size argument.
The same argument appears to have been successful in a Liverpool decision
Oh, where to start! While these are undoubtedly good results for the appellant tenants, and seem to broaden the argument on room use, I simply can’t see the reasoning based on Uratemp surviving an Upper Tribunal appeal, or certainly not the Court of Appeal.
Uratemp Ventures Ltd v Collins [2001] UKHL 43 concerned whether a room without cooking facilities could be a ‘dwelling’ for the purposes of Section 1 Housing Act 1988. While the House of Lords did hold that whether a room was a ‘dwelling’ depended on use – specifically whether it was Mr Collins ‘home, where he lived’ (Lord Bingham at 12) – it is not to do with room use.
What Uratemp did not do was decide that the usage of a room decides what it is. The issue was purely and simply whether a room could be a dwelling. A dwelling is a term of legal significance, not least in Housing Act 1988. A dwelling could be one room, or could contain lots of rooms, from bedrooms, studies, morning rooms through to an indoor swimming pool, and still be a dwelling. Uratemp has nothing to say about room use, per se. What is more, the supposed finding of the House of Lords as referred to in these decisions, ‘usage of a room defines what it is’, appears nowhere in Uratemp. Clearly, the FTTs had not read Uratemp, if it was put before them.
So, lovely though it would be to have a good, solid precedent case on room use defining the nature of a room, Uratemp isn’t it, and surely would not survive legal argument in a higher tribunal, or court. Why is this important, given that these appeals were successful and maybe others would be? Because any appeal from the FTT to the UT is on an issue of law. And such a misunderstanding of Uratemp gifts the DWP just such an appealable error of law.
It is also worth recalling that in Uratemp, Lord Bingham, rather uncomfortably for the room size argument, went on to say:
If a room were so small and cramped as to be unable to accommodate a bed, I should be inclined to doubt whether it would qualify to be called a dwelling-house because, although sleeping in premises may not be enough to make them a dwelling-house, premises will not ordinarily be a dwelling-house unless the tenant sleeps there. But in my view the courts should be very wary of laying down inflexible rules which come to be mistaken for rules of law even though they are very largely conclusions of fact based on particular cases.
I have already discussed my doubts about the Monmouth decision interpretation of the Bolton Upper Tribunal decision, so I’m not going to revisit that. The links to my reports are above.
“What Uratemp did not do was decide that the usage of a room decides what it is. The issue was purely and simply whether a room could be a dwelling”
Uratemp went into huge detail on the nature of the term “dwelling” and what a dwelling is. And it should be noted that the SI3040 which enacts the bedroom tax uses the term dwelling rather then the term ‘property’ which is more than semantic as a property can contain more than one dwelling and not just in HMO terms.
So it is not just about whether a room can be a dwelling, which it can, it is about the entire nature of dwelling and can be used as a good benchmark for that.
Uratemp also DOES say that room usage is significant as it does here at paragraph 11: –
“The time at which it has to be judged whether premises are entitled to protection is when action is brought: Baker v Turner [1950] AC 401 at 415, 419-420. At that stage it is necessary to consider the terms of the letting, the premises let and, in my opinion, THE USE MADE OF THEM BY THE TENANT: see section 1(1)(b) of the 1988 Act, which recognises that circumstances may change during the currency of a tenancy.”
The use made of them by the tenant clearly was seen as significant in Uratemp by Lord Bingham and as one of three heads – usage, the premises themselves and the letting terms.
The Fife case of AHG combined all 3 of these heads when it said a room was not intended as a bedroom, was never used as a bedroom (a kitchen prep area / dining room) and as is typical of Scottish agreements the number of bedrooms was not stipulated on the TA
In another Liverpool case (unreported) the number of bedrooms was NOT stated on the tenancy agreement and so what use a room is put is a matter of debate and dispute. In that case the room had never been used as a bedroom and had alternate reasonable uses and again was ruled out as being a bedroom on use and historic usage and the judgment concludes that usage is determinative.
Uratemp is used as a very healthy benchmark which does support the Bolton UT argument on usage and Uratemp is not just about whether a room needs to have cooking facilities to be a dwelling and not about whether a single room can be a dwelling as that was determined and upheld well before Uratemp
And as always the judgments above do not state the whole story and merely give the narrow and shortest overview of why the judge ruled in a particular case and each case is very fact specific which the judgments do not reveal. I have seen the submission in both these cases and it is very simplistic to criticise the significance of Uratemp as is done here and judges are increasingly using nuanced aspects to prevent all room use ‘wins’ from appearing to look the same too.
The UT if entered (and that is up for much debate) will have a copy of the judges notes and the written submissions and to say that these cases present a gift horse is hugely simplistic and highly speculative.
Joe, ‘dwelling’ doesn’t equal room, though a room may be a dwelling. The significant use in Uratemp is occupying as a home, pure and simple. That home may be one room, or a mansion. It is the nature of the occupation of the dwelling, not the nature of the room that is important.
Uratemp is not a benchmark on room use defining the room. In as much as the FTTs said that Uratemp held that ‘usage of a room defines what it is’, they are wrong, pure and simple. It is a phrase I have seen on your site, but it is nowhere in the judgment, or in any other higher court judgments that refer to it.
It is a gift to any half decent lawyer for the DWP, because it makes it appear that the FTT’s reasoning is based on an error of law, that they got Uratemp wrong. And so they did.
I don’t know why Uratemp has suddenly entered this debate as it seems to me to have only tangential relevance to bedroom tax appeals.
As I see it Uratemp can be summarised like this. The 1988 Act says that to be an assured tenant you must have a separately let dwelling which you occupy as your only or principal home. Whether Mr Collins had such a dwelling, and whether it was so occupied, were inseparable as each was proved by the other. In Uratemp the landlord’s position could be summed up as “I don’t care whether he lives in the room, it isn’t a dwelling because there is no cooker”; and the court’s reply was “the fact that he lives there is what makes it a dwelling, and you can live somewhere without a cooker”. For the purpose of the 1988 Act, the dwelling must be used as someone’s home otherwise there is no assured tenancy. There is no equivalent statutory requirement in HB that a bedroom must be someone’s sleeping quarters. Indeed the whole point of the bedroom tax is to penalise people who have rooms they do not need to use as bedrooms themselves. It just seems to me to be a completely different statutory context.
That’s “dwelling” in the 1988 Act context. Lets take another context: local taxation. The LGFA 1992 defines “dwelling” as a rateable hereditament and provides for Council Tax to be payable by the owner of the dwelling if there is no-one resident in it. So if it is legitimate to do a find-and-replace job substituting the word “bedroom” for “dwelling” in a non-HB context and then import the resulting text into bedroom tax decision making, who is to say that the Housing Act 1988 context is to be preferred to the local taxation context?
I think it has no relevance for bedroom tax appeals. It is not just a distinct statutory context, it is a wholly distinct issue. Hence my concern that importing a seriously mangled version of Uratemp as a basis for the rationale of the appeal/decision makes the decisions eminently appealable.
Perhaps the FTT don’t really care whether Uratemp is relevant or not. If it gives them a fig-leaf to decide in favour of tenants and as LLs therefore get all their rent paid, the only loser is the Govt who brought in the bedroom tax in the first place.
It seems the DWP are wary of appealing these decisions. It’s cheaper to allow 100s of FTT decisions go against them than lose and have a binding precedent on the bedroom tax which would cost £ millions.
they refuse me on my boxroom being 44.5sq ft. saying A4/2012 AND IT IS A 3 BEDROOM what to do now please
Who has refused? If it is the council, then the only option is to appeal the Tribunal.
yes the housing department have said we still have to pay for the box room i have email them and told them i wish to appeal and go to a tribunral i will also be putting this in writing and taking it to the housing office in the morning and tyvm for your help mr and mrs rowlands