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….