Another First Tier Tribunal bedroom tax appeal decision, this time from Aberystwyth. The Decision Notice is here (and on the FTT decisions page). No statement of reasons yet, but the decision notice gives an outline.
The Claimant lived in what was classed as a 3 bedroom property. He lived there with his wife. A two bedroom reduction had been applied.
On appeal to the Aberystwyth FTT one ‘bedroom’ was described by the Tribunal as follows:
The landlord may have referred to the room measuring 7′ 1″ x 9′ 6″ as a third bedroom but at 63.3 sq metres [sic. Must be feet] approximately it is too small to be occupied by an adult as a bedroom on a full time basis. It has not been used by Mr and Mrs X as a bedroom but rather as an office. It is an office.
So, a combination of room size and room use, though no reference to the basis on which 63.3 sq feet was taken as ‘too small for an adult’. (I am told, though haven’t checked, that this is smaller than the minimum bedroom size specified in the Welsh Government’s new build Development Quality Requirements (DQR)).
This left the other two bedrooms.
Article 1, Protocol 1, European Convention of Human Rights provides a right not be deprived of possessions, and Housing Benefit is a possession for these purposes. Article 14 ECHR provides a right not be discriminated against in the application of Maximum Rent Social Sector (MRSS). MRSS fails to treat some Housing Benefit Claimants who for various reasons need an additional bedroom on account of various disabilities differently from those who do not need an additional bedroom. This cannot be justified and is a breach of Article14 ECHR.
Furthermore, by reason of Mr X severe disabilities he and his wife cannot share a bedroom. Not to read Section 3( 1) of the Human Rights Act 1998 and Regulation B13(5)(a) as such would be incompatible with Mr X rights under Article 14, read with Article 1 of the First Protocol of the European Convention of Human Rights.
So an Article 14 discrimination finding on the basis of Mr X’s disabilities meaning that he could not share a bedroom with Mrs X.
As this is just a decision notice, the reasons are not given any further detail. For example the nature and extent of Mr X’s disabilities are not clear, but were clearly enough for the FTT to be satisfied as to their effect. The room size and room use decision would benefit from clarification, on the basis of the room size assessment (HA 1985 overcrowding criteria? History of room use?). But this is another decision showing what are becoming quite familiar approaches from the FTT. Clearly, faced with individual circumstances, the FTTs are quite happy to interpret ‘bedroom’ and the regulations in response.
There is also the Welsh Housing Quality Standard to factor in here. In the appendices it give dimensions for a bedroom and bedroom furniture and space needed around he bed and space for distance from walls too.
It says that a bedroom must be able to include a bed, wardrobe, dressing table an chest of drawers and hence the bedroom to be described as such needs to be big enough to accommodate these usual bedroom furnishings.
Depending on layout of the room I looked at this a few months back and worked out that a (single) ‘bedroom’ could be anything from 68 square feet up to 87 square feet as the positioning of the door and shape were factors to be considered.
Those calculations did not include items such as radiators as you cant place a wardrobe for example in front of a radiator as this negates its use.
Interesting though this is (apparently) yet another example of “room size AND room usage” being combined as one reason rather than size and usage being two separate and distinct grounds. In doing this judges are not only seeking to stop UT challenges and risk of overturning on size issue alone but stating that the decision made on usage as well suggest strongly the decision was made on individual merit of the case – a big hint to those appealing or taking appeals on behalf of tenants!
Well, there is no indication at all that the Quality Standard was considered. And it is not something that has any statutory bearing at all. Also won’t apply retrospectively, it being for new build.
I tried to use the Welsh Housing quality standard and linked it with the Health regs but the Benefit Office would not take that seriously as it was not statutory – just guidance. However, RSLs HAD to build new properties according to the standard, and exiating properties were expected to conform by 2012, or we could expect a reduction in funding. We built all our properties according to Pattern Book styles which included room sizes, but it doesn’t seem to work for us now with regard to under-occupation, and the tenants are paying the price for us building according to our instructions from The Welsh Office, Tai Cymru, The Welsh Assembly and now Welsh Government. I wish someone would use this argument in a tribunal in Wales, but I don’t know of anyone who has.
I’m confused, Viv. If you are from the landlord – building to the Pattern Book – then why isn’t it just a matter of Landlord’s classification of bedrooms?
The Pattern book allows 2 different versions of 3 bed houses – a 3 bed 5 person and a 3 bed 4 person. The sizes of the beds in the 3 bed 4s are small and could not take 2 beds -partly also due to layout of the rooms. But there is no reason to re-classify and call them 2 bedroom houses because the family does have the advantage of their children having a bedroom each
I’m lost now. Are you saying that if you hadn’t built to the pattern book standards, there would be a realistic chance of de-classifying smaller rooms as not bedrooms?
Correct.thats why we had to call them 3 beds.but they could only be big enough for 1 person.
But if they were built to those standards, the room sizes would be big enough not to fall under the HA 1985 overcrowding room size limits that the FTTs are adopting?
The point I am making is that we were told to build houses with bedrooms of a certain size and describe them as 3 bed 4 person houses – i.e. a double and 2 singles which on the design brief showed only 1 bed in them. However the rules of the bedroom tax says that we should fit 2 children in each room (as half a person each) and due to the layout the tenant cannot put bunk beds in those rooms die to either a window or a door. We are still correct in calling them 3 bedroom houses, so should not have to re-classify. A family with 2 children (who may also be adults) can fit comfortably, but we are told that bedroom tax will be charged on one of those rooms if the 2 children are of the age to share one of the bedrooms.
I have a boxroom too under 70 sq ft asra housing officer finally rang the other day and confirmed she worked it out to be under 70 sq ft yippee floor size with out the skirting included 3/4 inch and where door opens into room taken of. Do not think they have taken into account about radiator
but said HB will not back date to April from when they re classify property to 2 bed from 3
pre 1996 was moved due to medical and domestic violence
Sounds like it is worth an appeal – if not a bedroom when reclassified, was not a bedroom from April 2013.
Obviously we will know more if and when there is a statement of reasons. However, I think a statutory link can be made to the Welsh Housing Quality Standard (and to the English equivalent which is the Housing Quality Indicator System). The 2004 Housing Act lays a statutory duty on local authorities to assess safety in line with the Housing Health and Safety Rating System. The HHSRS Operating Guidance explains how to assess Hazard 11 in this (crowding and space) in line with the HHSRS. It refers LS to the Housing Quality Indicator System and to the Metric Handbook for guidance on space needed for rooms. Although these two documents are intended for newbuild and sometimes have to be used with qualifications they are still the authority on which to rely. There is a LACORS document 2009 – guidance to Local Authorities – which explains this in further detail, LACORS, although not statutotory, can be relied on – there is for instance, case law in which its guidance on fire safety is accepted.
I am feeling more and more strongly that there is a strong legal case arising out of the 2004 Act and I would welcome further comments on this, particularly from people with experience of housing legislation, as opposed to, or as well as, benefits legislation. Ruth Knox
Ruth, I looked closely at this when I was arguing with Joe. Housing Act 2004 does not set a room size. The HHSRS standards do not set a room size. The LACORS Guidance itself (which is only guidance) does not set room sizes, but refers to some ‘proposed recommendations’ on room size standards. At the best, these are supporting materials on a room size argument, but there is nothing that can be relied upon as an authority.
But the Tai Cymru followed by the Welsh Assembly Pattern book does stipulate sizes, and in the Welsh Housing Quality Standards there is a table giving the room sizes for different sizes of family dwellings, complete with drawings showing sopace for wardrobes drawers etc
“Article 1, Protocol 1, European Convention of Human Rights provides a right not be deprived of possessions, and Housing Benefit is a possession for these purposes.”
If what this judge says is true, then how is this protocol not applicable to every victim of the bedroom tax?
No. HB can be set at whatever level the Government decides, without any necessary A1 P1 interference. There is no ‘right’ to HB per se. However, there is an A1 P1 right not to be unlawfully deprived of that which you would otherwise be entitled to. Which is why the A1 P1 right is a necessary first step for an Art 14 discrimination ground. The disabled person is being indirectly discriminated against by, to put it in shorthand, being treated in a manner which takes no account of their needs arising from their disability, which results in a discriminatory reduction in the HB they would otherwise be entitled to.
The tribunals tend to work differently from other courts and the overt reliance on other authorities is not always there and is not always needed.
For example the Redcar, Glasgow and Hereford cases all widened the “housing need” element to give a need for a bedroom each for a disabled couple (in prescribed circumstances which the tribunals decided themselves.)
The same ‘discretion’ or greater fluidity of the tribunals is evident in interpretation of what a ‘bedroom’ constitutes, be that room size, usage, fit for purpose and much more besides.
The tribunal judge tends to see the correct decision firstly (the overriding objective or just decision) and THEN finds a way to widen the interpretation of the regulations to fit. That for me is a radical difference to the civil or criminal courts looking to case law or other authority first and then making a decision based on that.
The central issue is ‘bedroom.’ What constitutes a bedroom and how many bedrooms each property has. So while it may hold that HA2004 or HA1985 may not read across or may not be authorities, they are significant to the tribunals and DO hold sway along with room usage and other grounds of appeal.
The intention of ‘guidance’ (LACORS) or of standards (WQHS etc) is open not just for interpretation it can become as others have pointed out the man on the Clapham omnibus position and have influence.
As I think all have agreed the absence and dogmatism in failing to define ‘bedroom’ from the outset which is the heart of the problem also allows greater interpretation and greater weight to be given to guidance and standards and other matters which would not be an ‘authority’ in another court.
This is why the Bolton UT case will wreak havoc. The ordinary language definition of ‘bedroom’ is given as a room used for or furnished as a bedroom. Just how the hell can any council know that without having to inspect? They can’t know. They also can’t ask the landlord either as how the hell does the landlord know.
Now that we have a definition (of sorts) the bedroom tax decisions are impossible to make for local councils and are ripe for challenge at every turn and I suspect will be. The Bolton UT case moves the debate on from councils stating that if a room could be used as a bedroom then it is (the current or pre Bolton position that has always been a fiction) to a case of proof that a room is a bedroom and that is impossible unless councils inspect which they will not do due to cost.
If you thought the bedroom tax was a pigs ear before Bolton…..!!
I agree that the room size argument is persuasive at FTT level. (And hopefully at the UT). But if it is to survive appeal to the UT or beyond, then a degree of authority will be needed.
And the Bolton UT did not give an ordinary language definition of bedroom as ‘a room used for or furnished as a bedroom’. This will also be important on appeals to the UT. Assuming that is what the UT said is a dangerous position to take. It did acknowledge dictionary definitions which suggested this, as examples of usage, and this is helpful. But it is dangerous to assume that it is a closed definition.
The Bolton UT case gave a dictionary definition and regardless of which one is used they for me all mean used as or furnished as…. and there is no dictionary definition of ‘bedroom’ as far as I am aware which says ” whatever the landlord tells the LA to which the LA choose to agree with out of expediency” …or similar.
Even if this is not a closed definition and I agree mostly with that, there is so little scope for it to move away from ‘used as’ or ‘furnished as’ and I can see UT (or higher) agreeing with that as it is not a term of art.
The issue is how do councils KNOW it is a bedroom rather than suspect or assume or p*ss in the wind and hope the wind doesn’t change direction and they are bombarded with requests for reconsiderations and appeals?
The room usage issue will be so much bigger than room size this year for me and will wreak havoc with the coalition thankful the election is nigh as the bedroom tax has political disaster written all over it
The UT case gave 4 dictionary definitions, some of which are mutually contradictory. The dictionary definitions were not offered up or used as *the* definitive definition of bedroom. And this was in a case where the UT was trying to decide whether a ‘non-bedroom’ could be considered as a bedroom, rather than the other way round. The scope for moving away from ‘used or furnished’ is unknown. We will have to see.
I agree that councils will have to deal with investigating rooms when objections are raised.
Sad to say, I doubt that the bedroom tax will be a significant electoral issue. The main work will be to ensure Labour doesn’t renege on repealing it. The main electorate for the other parties is unlikely to give a damn.