On disappearing bedrooms

This is a rather speculative post, but things have become interesting on the bedroom tax.

We reported on one Fife First Tier Tribunal here. There have been another four decisions by the same Tribunal, of which three apparently also resulted in findings that rooms designated by the landlord, Fife Council, as bedrooms, were not capable of being such for the purposes of the ‘removal of the spare room subsidy’ regulations.

I have not seen the Tribunal decisions, though I hope to very soon, and will do a post on them once I have. However, from Joe Halewood and Paul Lewis‘ posts on the decisions, it is clear that the FTT accepted that the statutory overcrowding provisions were relevant in deciding what amounted to a bedroom, accepted that a ‘well established alternative use’ of a room could prevent it being a bedroom, and, as we have seen, that historic use could also mean that a room could not be a bedroom.

These are, of course, FTT decisions and non-binding, even on other FTTs. However, it is at this point hard to see how the FTT could not take this power upon itself to decide what isn’t a bedroom, given the absence of any definition in law.

According to Inside Housing, the DWP is ‘considering guidance’ in the light of the Fife decisions.

I have some quick thoughts about the position of the DWP. And then of social landlords.

Assuming that the DWP wishes to stop or restrict the FTT from taking upon itself the role of deciding what isn’t a bedroom, the only options open to it that I can see are as follows:

i) The DWP itself defines what is a bedroom. This seems unlikely. The whole thrust of the legislation was to avoid doing so, leaving it to the social landlord, clearly in the expectation that (under threat from Lord Freud) any re-evaluation of ‘bedroom’ numbers would be accompanied by a reduction in rent and HB charged. Any definition of ‘bedroom’ by the DWP would be likely to face immediate public law challenge as being wrong, based on irrelevant or inaccurate information, potentially discriminatory and indeed unreasonable. And I would put the chances of success of such challenges as high.

ii) The DWP decides that the landlord’s definition of numbers of bedrooms should be determinative (as it currently isn’t – just information on which the Benefit Authority is entitled to rely). In this scenario, both the DWP and the landlords face a host of public law challenges. The DWP for handing over the definition of an element of benefit entitlement to those with a vested interest in maximising their own revenue. The landlords for failing to take into account the kind of factors that we have seen set out in the Fife FTT.

So, either way, things get very messy for the DWP and landlords, very quickly.

Alternatively, the DWP may intend to be sensible, and incorporate the kind of ‘not bedroom’ criteria that the FTT has put into its decisions into guidance. Two problems here. First, it would of course require the Benefit Authority to inspect and apply those criteria when the tenant disputes the landlord’s assessment of the number of bedrooms. Second, it leaves the entire policy and day to day decision making at the mercy of developing decisions from the FTT and of course UT (and higher courts) on the criteria that stop a room being reasonably considered a bedroom. This process in the Tribunals and Courts has only just started. Given the sulky DWP response to Gorry and Burnip, it is hard to see how this approach is likely.

Now, while I foresaw various grounds of challenge based on what could reasonably be considered to be a bedroom, including, of course, the statutory overcrowding provisions, I confess that I did not properly consider the potential role of the FTT in bringing the non-definition of ‘bedroom’ issue to a head. But here we are. The FTT is well on its way to doing just that. Once the UT gets its hands on the issue, we are looking at binding case law.

Social landlords should now be considering their stock (and reported bedroom numbers) very carefully, not least in relation to the tenant’s circumstances, assuming the outlines of the Fife decisions are true.

Benefit Authorities might remain entitled to rely on the landlord’s reported description of the property, but can’t assume that that will be the end of the matter (and may have to be prepared to inspect and somehow come to a decision on undefined and case by case criteria if the tenant challenges).

The DWP faces high risk problems where if it acts to restrict the nibbling away of ‘bedrooms’ by the FTT (and maybe UT and Higher Courts) it looks to face immediate and significant public law challenges to its decisions, but if it simply tries to incorporate FTT decisions into guidance, it faces a long, slow attritional process. The best the DWP can really do is try to lean on social landlords to review their ‘bedrooms’ and revise rents accordingly. But this won’t do away with the case by case challenges.

This is, in hindsight, all eminently predictable. At least for those involved in benefit policy. You would have thought the DWP would have recognised that this is what happens when you introduce a category based restriction without any definition whatsoever of the category. But no….

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Benefits, Housing law - All and tagged .

21 Comments

  1. Pingback: Landlord Law Blog Roundup from 9 September

  2. I must disrespectully disagree with the overall conclusion. While underoccupancy has long been an issue in the private sector and this levels the playing field, they share the same problem. Like a duck a bedroom is easily recognised, except in the limited number of cases when it’s use or arrangment is open to interpretation. The failure in the policy ( yet another example of civil service mud pitting) is how to deal with those situations. The policy cannot be roundly condemned for its shortcomings in dealing with (numerically few) exceptions. It can be criticised on the ability of residents to relocate either out of stock shortages or help to move when less able eg “one department says I’ll have to move, the other ( helping the less able) won’t help me” despite sharing the same office space…….

    • > Like a duck a bedroom is easily recognised,

      By one who is looking at it, yes. Litigation, however, does not involve tribunal judges making site visits.

    • I agree and disagree :) My experience of the old RAC and LVT and now FTT *( first one next week) is that site visits are a must ( though the UT requires we should ignore any evidence we might trip over if not in the case)……however

      I would have to disagree as except in limited circumstances the challenge to “is it a duck?” are unlikely to arise. While a visit is not required, a description or images on the basis of the case(s) should in most cases be capable of being determined. I then agree that there is a shortcoming, once again by the Civil Service dunderheads, in allowing for defintions or an inspection to clarify the few exceptional cases.

  3. @ AM

    Why bother politely disagreeing with the conclusion when you clearly have no humanity? Just show your true colour. Oh, you have.

    If under -occupancy was the real problem, under-occupying social housing tenants, who are paying their rent themselves, out wages, pensions and salaries would also be told to pay more rent. Or that going to be the next true blue wheeze?

    As ever, you and your kind manufacture cruelty.

    • K, I don’t think AM deserved that, not least as AM’s comment did deal with problems in the implementation of the policy. And we try to keep discussions civil here. At least unless I’m being rude to someone.

    • Butif they are paying rent then how does it affect benefits they are not claiming?

  4. Pingback: The bedroom tax: what Raquel Rolnik really said – and why | Alrich Blog

  5. Any thoughts on:
    (1) whether a decision that say a ‘3 bed home’ is really a one or two bed home as far as B Tax is concerned effectively reclassifies it automatically?
    and
    (2) whether (either by default as above or through landlord reclassification) such re-designation has implications for the landlord in terms of having a loan, or a contract with a local Authority, on the basis of a development having homes with a certain number of bedrooms?
    Or anything else?

    • Reclassifies automatically? Not sure what you mean. It does as far as the benefit authority goes. Obviously presents an issue for the landlord in terms of classification and indeed rent level, but not binding on them.

      The answer to the second question would, I presume, follow from the first.

    • Thanks Giles- yes, answers the first question, ie just because in terms of HB it’s now a ‘2 bed’ doesn’t mean it has to be considered a ‘2 bed’ in terms of the tenancy.
      But re 2nd question, say a landlord DOES re-designate (either before or after a tribunal decision), obviously they ought to charge less rent, but do you think the landlord couldalso be seen to be in breach of any agreement to have developed 3 bed houses in terms of either a contract with a local authority who’s asked them to build a 3 bed development, or with a finance provider who’s provided a loan or grant on the basis of 3 bed development ?

  6. I posted on the same subject over the weekend and came to a different conclusion altogether. That local councils could and should determine that a bedroom has to be 70 square feet (and landlords should lobby them to do so.)

    Local councils are asked to decide whether a claimant has too many ‘bedrooms’ however defined for their housing need. As the housing need element is largely uncontested then the decision to apply the bedroom tax deductions all comes down to (a) what is a bedroom and (b) how many does each property have….in the local councils view and final say.

    The same local councils determine daily what is ‘sheltered housing’ and have done for decades yet their is no legal definition of ‘sheltered’ housing. The decision of what is and what is not is made by local councils. There is no difference in principle between a council deciding what is ‘sheltered’ and what is a ‘bedroom’ and so councils should rule that a bedroom has to be a minimum of 70 square feet.

    This will NOT result in a reduction of HB payable to the landlords – a significant point – as the rent level will not be ‘unreasonably’ high for a now 2.5 bed that was a 3 bed.

    So landlords and councils and tenants benefit significantly from a council determining that under their working definition of a bedroom the minimum 70 square feet floor area and I see nothing legally to prevent this. (anyone?) Hence up to 25% could be taken out of the bedroom tax giving more problems for DWP!

    • Local Councils could do it, possibly should do it. But, and it keeps coming back to this, there is no requirement on them to do so. All they have to do is reach a decision, and entitled to use info provided by landlord in reaching that decision.

      If decent evidence on room size/use/history etc. is presented on a review request, then potentially Council should determine on the disputed designation. This may or may not involve a visit, depending.

      And I don’t get the partial bedroom thing. It only makes sense in statutory overcrowding provisions, not in property designation.

    • There are no partial rooms in the space standard, as far as I can see, only partial persons. ‘Half a bedroom’ and so on seems to be a misquotation of this.

      I do think there is a reasonable argument along the following lines:-

      The addition of a 65 square foot bedroom to a home allows only the addition of one child under 10 to the household. Since a ‘bedroom’ for the purposes of the bedroom tax is expected to bear the burden of accommodating up to two adults who are a couple, or two children under 16, such a room is not a bedroom as imagined in the bedroom tax regulations. Although there is no explicit definition of ‘bedroom’, the high expectations placed on any room so designated go some way towards defining what is meant by the term.

      How much wider success people will have with this is anyone’s guess.

    • I’m also intrigued, from Paul Lewis’s blog, as to how a blind claimant was found to be ‘exempt’ – through a route that apparently needed an appeal to establish it.

    • I am holding fire on the other Fife decisions until I have seen transcripts. I have seen some very interesting quotes from them, but, being a lawyer and all, I always want to see full decisions.

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