This is a rather unusual bedroom tax First Tier Tribunal decision from Islington. (Decision notice. Also on the FTT decisions page.)
There was one additional room, classed as a bedroom by the landlord, Islington Council. The tenant appealed on the basis that the condition of the room through disrepair (or rather, I understand through condensation damp and mould) meant that it was not suited to use as a bedroom.
Remarkably, and despite parallel disrepair proceedings, the room remained in this state and there was expert evidence before the adjourned FTT hearing.
The FTT concluded that, at the time of the HB decision, “the state of the disputed room was so poor that it was not reasonable to expect it to be used as a bedroom”.
Now, as someone who does a fair bit of disrepair work, this does raise a question or two or three. For example, does the state of the room have to be something that the landlord is liable for? (So, damp penetration, yes. Condensation damp and mould no, except in an EPA prosecution perhaps.) Clearly it can’t be something for which the tenant is responsible (which may be an issue in some condensation situations and may actually be an issue for expert evidence!).
And when does this state have to be in being? This appeal suggests at the time of the HB/bedroom tax decision, which is appropriate for such an appeal. But what if the room is returned to a reasonable state afterwards, even soon afterwards. Can the Benefit Authority make a fresh decision as soon as the room is in a condition where ‘it would be reasonable to expect it to be used as a bedroom’? Can there be rooms slipping in and out of suitability to be used as a bedroom, as this would imply?
Yes they can: the Tribunal’s decision is final only up to the point where grounds arise for a further decision, known as a “superseding” decision. The Council would say there had been a relevant change of circumstance since the original decison in that the claimant’s second bedroom has been brought back into a usable condition.
If there were to be some other change of circumstance – a change in the claimant’s financial situation say – grounds for a superseding decision would also arise, but the Council could not use that as an excuse to revisit something previously decided by a Tribunal in respect of which there would not otherwise be grounds for a new decision: see the 2003 case of Neil Wood v Sec of State for Work and Pensions. So the Council should not say “The good news is we have updated your income to reflect the cut in hours you have just had; the bad news is we still think that second room is a bedroom whatever the Tribunal says about it, so this superseding decision includes a bedroom tax deduction”.
Any superseding decision of course carries fresh appeal rights, but it would be an abuse of process for the Council to make someone go through that in the circumstances described above and the Tribunal’s decision would probably include a ticking off of the Council for wasting everyone’s time.
However, a change in the condition of the room is clearly relevant to the bedroom tax and so a superseding decision could legitimately be made – with new appeal rights.
We operate mould and damp businesses in both the UK and Australia and our experience is that landlords are responsible for the conditions of any rented dwelling and are obliged to provide a safe and healthy environment for the tenants. If the condition of the dwelling is causing the condensation or mould (a lack of ventilation or leaking water pipes being the two most common causes) then the landlord is obliged to rectify the issues. Australian experience demonstrates that, if the landlord or estate agent ignores the issue, tenants can be rehoused at the landlords or agent’s expense and costs can be awarded to the tenant for property damage and for inconvenience caused by the moisture issues. Many agents and landlords blame the tenants for condensation and mould issues and whilst this can sometimes be the case, our experience suggests that in the vast majority of cases, the issue is due to the dwelling and not the inhabitants.
Hi John, I’ve removed the link to your firm. Partly out of kindness, because you’ve got the English law wrong. Leaking water pipes are disrepair. But condensation mould if caused by inadequate ventilation is not something for which the landlord is liable, unless it is so severe as to be a statutory nuisance. The landlord is not obliged to rectify the issue unless it is that severe. And no, there is no rehousing at landlord’s expense. Or claiming for property damage (unless it is actually disrepair).
Also, please don’t try to promote yourself by sticking comments on any posts mentioning mould. We don’t allow advertising.
Are there any progress regarding damp and mould? Does Fitness for Human Habitation Act 2018 helped to pass the damp problem onto landloards?
Yes it has. But not with regard to the bedroom tax.