Here is an interesting First Tier Tribunal bedroom tax appeal decision from Bexleyheath. [Decision notice]. It is a decision made after the Fife Upper Tribunal decision, but upholds the tenant’s appeal on the basis, in part, that the room is inadequately sized to be a bedroom, as well as being just too damn hot. Thanks to Joe Halewood for the copy of the decision.

The given reasons for the decision seem to me to both entirely in accord with the Fife decision and, as findings of fact, virtually unappealable. As such, it may mark the way that the Fife UT decision will play out in the First Tier Tribunals, and gives an indication of the kind of factors that may come into play in whether a room can be reasonably considered to be a bedroom.

The property was a ‘three bedroom’ house. Two bedrooms occupied by the tenant and her adult son. The third room was, the tribunal found, of about 6.31 meters square, and was just about large enough to accommodate a single bed and a chest of drawers. But the ceiling sloped down to about chest height on one side of the room. The shape of the room also meant that a door to a cupboard housing an immersion heater opened directly in front of the door from the room to the landing, which reduced useable floor space. Moreover, the presence of the immersion heater tank in the room, as well as a boiler, meant that the room was always hot. Though the window could be opened, this did not adequately reduce the heat generated by the tank and the boiler. The heat meant that the room could not be slept in. The tenant’s evidence was that when her four children were all at home, the youngest would sometimes try to sleep in the room, but couldn’t because it was too hot.

The Tribunal accepted this evidence and followed SSWP v Nelson and Fife Council [2014] UKUT 0525 (AAC) in finding that “the room had various physical features and drawbacks which prevented it from being used as a bedroom”, so it should not be counted under Reg B13.

What this decision suggests, as raised in my report on the Fife UT decision, is that if specific factors are raised by the tenant as going against the landlord’s statement of the number of bedrooms, then the benefit authority will have to consider those factors and give reasons for their decision. If they do not, or if there is no contrary factual evidence, then the FTT may well accept the tenant’s evidence (assuming it is adequate). And a decision on such facts is frankly unappealable by the benefit authority or DWP. The UT has established the legal framework, factual decisions made within that framework are not realistically appealable.

If there are physical  reasons why a room is not useable as a bedroom, tenants should raise them with the benefit authority straight away. The benefit authority will have to deal with them, and cannot just rely on what the landlord told them if the tenant raises objections. As I predicted, the benefit authorities and DWP will not be happy with the effects of Fife UT decision.