Upper Tribunal on bedrooms

There has been some excited talk about an Upper Tribunal decision on a Local Housing Allowance  appeal which apparently offered a definition of ‘bedroom’.  Obviously, as an Upper Tribunal decision, this would be binding on First Tier Tribunals, even though addressing LHA rather than the bedroom tax. The passage that has been widely quoted, and seen as supporting arguments on room use in relation to the bedroom tax, is:

19. The word “bedroom” is not defined in the legislation. It is an ordinary English word and should be construed as such. According to the dictionary definition in the Shorter Oxford English Dictionary a bedroom is

“a room containing a bed”,

whilst in the Collins Dictionary it is

“a room furnished with beds or used for sleeping”.

In the Merriam Webster Dictionary it is

“a room used for sleeping”

I now have seen a copy of the full UT decision, CH/140/2013 or Bolton Metropolitan Borough Council v BF (HB) [2014] UKUT 48 (AAC). And yes, it does indeed contain that passage. But it is not quite that straightforward.

As background, the appeal concerned a ‘two bedroom’ property occupied by the claimant and his wife. It appears that both were receiving DLA, though this is not certain. The claimant had been discharged from hospital, suffering from pneumonia and chronic obstructive pulmonary disease. he had apparently been advised to sleep in a separate downstairs bedroom on a raised bed.

The couple’s daughter stayed at the property 3 or 4 nights a week to look after their needs. After the claimant was discharged from hospital and was sleeping in the other downstairs bedroom, the daughter would sleep on a camp bed in the living room.

The issue was that the claimant had been assessed for LHA on a one bed rate – that he and his wife could share a room. The Council argued that while the claimant (and indeed his wife) might be entitled to an extra bedroom for an overnight carer, under the Burnip amendments to the regulations, in fact the carer was not occupying a bedroom, so the claimant was not entitled to the two bedroom rate of LHA.

The UT was not particularly impressed, pointing out that the effect would be to penalise the claimant for occupying a separate bedroom on medical advice, simply because the carer stayed in the living room.

Then the UT turns to the question of whether the living room could be a bedroom for the purposes of the Regulations.

18. In my judgment, on the facts of this case the claimant’s daughter was provided with the use of a bedroom additional to those used by the persons who occupy the dwelling as their home. The fact that the room which she used was also the lounge of the house does not preclude it from being a bedroom. It was the room in which she had a portable bed and the room in which she slept when she was caring for her father, staying over, as the appeal tribunal found, three or four nights a week and helping him at night to get to the bathroom and with his nebuliser when he needed it. The legislation does not require that the “bedroom” must be a room primarily intended for sleeping in, such that a lounge or other living room is necessarily precluded from being a bedroom because it can be used for another purpose when it is not being used to be slept in.

Then follows the passage at 19. quoted above, and the conclusion:

19. The word “bedroom” is not defined in the legislation. It is an ordinary English word and should be construed as such. According to the dictionary definition in the Shorter Oxford English Dictionary a bedroom is

“a room containing a bed”, whilst in the Collins Dictionary it is

“a room furnished with beds or used for sleeping”. In the Merriam Webster Dictionary it is

“a room used for sleeping”

and in Webster’s Dictionary it is

“a room furnished with beds and used for sleeping”.

(There is no essential or material difference between the room being furnished with one bed or more than one bed.) On any of those definitions it seems to me that the claimant’s daughter had the use of a bedroom; the fact that the bed may have been folded up or put away in the course of the day when the room was being used as a lounge or living room does not mean that it was not a bedroom within the meaning of the regulations when she slept in it at night. It is sufficient if the room in question, of which the overnight carer has use, is furnished with a bed or is used for sleeping in. It would therefore make no difference if the claimant’s daughter had, for example, slept on the sofa, or in a sleeping bag on cushions on the floor, as opposed to sleeping on a portable bed.

The Upper Tribunal upheld the FTT decision that “the person who is the claimant’s overnight carer has the use of a bedroom whilst she is caring for him”.

Reference was made to MG v Carmarthenshire County Council [2013] UKUT 0363 (AAC) (CH/1940/2012) in which a room used as an office, with a table and chair but no sleeping facilities was found not to be a bedroom.  In that case the UT stated:

The argument on behalf of the claimant put forward by the company (which is effectively the appellant in this case) requires the word ‘bedroom’ in the amendment to the 2006 Regulations to be read as extending to any room occupied by a carer providing night time care to a recipient of housing benefit, or the partner of such a person, whether or not the room contains a bed or is used for sleeping in.  Such a departure from the plain and ordinary meaning of the word ‘bedroom’, if it were ever permissible, could only be justified if it was necessary to give effect to legislation implementing a provision of EU law, or to achieve compatibility with a right conferred by the European Convention on Human Rights.

The present UT saw no contradiction between these cases.

What we can take from this?

In this case, the UT’s approach resulted in there actually being 3 bedrooms in the property, at least for whatever period that the daughter was using the living room to sleep in. The claimant got the two bed rate of LHA, but was still technically a bedroom over.

The UT was prepared to consider the room a bedroom solely on the basis that someone slept in the room on a few nights a week.

So, the UT is prepared to accept actual, current, use of a room as the deciding factor for the room to be classed as a bedroom.

Can this simply be taken to apply in reverse, so that actual current room use would be the deciding factor in classing a room as ‘not a bedroom’? Perhaps. But it is not so clear cut.

The UT accepts that ‘bedroom’ is an ‘ordinary english word and to be construed as such’. In this case, the UT refers to four dictionary definitions (although the Merriam-Webster definition is actually:  a room furnished with a bed and intended primarily for sleeping ). However, what the UT is not doing is setting these dictionary definitions as the only criteria for what is a bedroom.

This is clear because the UT’s finding that the room would be a bedroom if someone was using it to sleep on the sofa or the floor contradicts two of the definitions, which require a bed. (In fact three of the definitions, if I’m right about the Merriam-Webster definition above). Only the Collins and the UT’s version of Merriam-Webster would allow ‘used for sleeping’ in the absence of a bed.

So, what the UT is surely doing is using the dictionary definitions as examples of common meanings of ‘bedroom’. This is the only approach that would allow the UT to find that using a room to sleep in was sufficient to make it a bedroom, even in the absence of a bed.

Further, the UT holds that “The legislation does not require that the “bedroom” must be a room primarily intended for sleeping in”, but at least one dictionary definition – the Merriam-Webster one I found above, not mentioned by the UT – requires just that, ‘intended primarily for sleeping’.

But, if the definitions are not exhaustive, and are just examples of ordinary English usage of ‘bedroom’, then it remains open for other ways of construing the word to also be found to be valid.

For example, I live in a two bed flat. One bedroom is used as a study and has no bed in it It was described by the agent and in the agreement as a two bedroom flat when I took it. If describing the flat to others, do I say it is a two bed, but I use one as a study, or do I say it is a one bed flat, with study? The question I’m posing isn’t which way of describing the flat would be ‘right’, but whether one of these would not be an ordinary English usage. I would struggle to say that either way would not be ordinary usage, though perhaps ‘two bed but I use one as X’ might be the more common. But that usage acknowledges that a room can be a bedroom even when used for other things.

The detail of the decision also opens up problems in using it as a clear marker of what is a bedroom. For example, does ‘used for sleeping’ as in the Collins and the UT’s version of Merriam-Webster, necessarily mean at the present moment? Would a bedroom stop being a bedroom when someone stops sleeping in it? (Children leave home, etc.). The UT seems to think it might without deciding the point, in this case of the daughter sleeping in the living room. But even in this case, the room was not slept in 3 or 4 nights a week. Unless the room flickered in and out of being a bedroom across the week, which would make HB entitlement very complicated, it can only be that it was because the room was available for use as a bedroom and was so used some of the time.

So, at what point does a bedroom cease to be a bedroom after it has been used as one? Is it sufficient for a room to continue to be available for use as a bedroom to make it a bedroom?  And if so, would an alternative use have to be such as to make the room unavailable for use as a bedroom? What kind of use might that be?

It is worth recalling that one of the Fife FTT decisions suggested (but did not confirm) criteria for alternative use:

(a) that there be well established alternative use of the room, and (b) that that alternative use is in reality not a matter of choice for the occupant but reasonably required for their continued occupation of the property as their home.

And, as this UT decision makes clear, the absence of a bed does not stop a room from potentially being a bedroom.

Tentative conclusions

All in all, then, I think that this UT decision is potentially helpful for ‘room use’ arguments over the bedroom tax, but not unproblematically so.

It makes clear that the UT adopts an approach based upon construing ‘an ordinary English word’ and therefore that FTTs should similarly take that approach. It further makes clear that the UT is open to considering room use as a relevant factor. This is an important development. (Although it may be easier to identify when use makes a room a bedroom than when use makes a room not a bedroom).

However, what this decision does not do is provide a closed definition of bedroom. The use of the dictionary definitions can only be as examples of usage of an ‘ordinary English word’, for the reasons I’ve explored above. This decision does not say that a bedroom must have a bed in it. It does not say that a bedroom must be used for sleeping in.

The decision also makes clear that a room may be used for other purposes, here as a living room, yet also be a bedroom.

I think that the strongest that can be said is that this decision would offer support to a clear, evidenced case that a room can’t be used as a bedroom. Whether it would assist a case that a room simply isn’t used as a bedroom I am less certain.

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 assured-tenancy, Benefits, Housing law - All, secure-tenancy and tagged .

55 Comments

  1. I don’t disagree with any of the arguments and discussion above. I only disagree and how this will be perceived and how this decision will bolster many appeals on room usage and how it presents many significant opportunities for tenant and landlord to challenge the policy by way of JR.

    New 2014/15 decisions made by LAs will need to have regard to the Bolton UT ruling yet just how the hell can LAs know what uses are made of alleged bedrooms?

    If, as I strongly suspect, LAs continue to simply choose to take the landlords word as to bedroom number, and how else could they do this without inspecting all disputed cases, then that decision and decision making process is ripe for JR challenges.

    There is certainly more validity in that line than the appearance of the hawkish legal brethren seeking to take compensation claims for the wrongly imposed pre 1996 cases which have started to appear on social media sites (eg http://www.stephensons.co.uk/site/news_and_events/blogpost/housing_benefit_loophole#.UuUyM2xFDoY)

    I can see many more such touts for business coming along thick and fast in the very near future.

    Yet how LAs determine what is a bedroom and how many, the two central issues in the bedroom tax now has a UT definition of bedroom making any new decisions very amenable to JR challenges which I strongly suspect will happen come March as 2014/15 bedroom tax decisions land on tenant mats.

    These JRs along with the hawkish ‘compo’ claims and maladministration cases all spell bad press after bad press for this woeful and ill-considered policy and that is the real significance of having a definition of ‘bedroom.’

    Doubtless the cost to public purse of increased appeals or pre-1996 revisions, of defending compensation claims. and the rest of the public purse costs will see the beginning of the end of the policy and that is the real significance of the definition and however ‘difficult’ in a legal sense it will be to use this definition

    • Joe, a few points.

      Stephensons aren’t looking to bring compensation claims. They are offering help in getting back the HB for exempt people.

      A JR would not be a suitable route for a challenge on ‘failing to inspect’. JR not suitable when there is another route available, here the FTT.

      So I’m afraid no JRs on the grounds you suggest and, so far, no compensation claims (and I have very real doubts about whether any such claim could succeed).

      Where I do agree is that it makes the DWP’s insistence on reliance on the landlord’s description much, much more difficult.

    • I see the JR not on failure to inspect but on HOW councils decide what a bedroom is. If they take the we believe the landlord option for expediency then a JR challenge is on how they decided what is a bedroom and in light of the definition we now have.

      Being overly simplistic but how does LA KNOW a bedroom is used or furnished as a bedroom? They can suspect or assume but how do they know? The landlord who they choose to believe also does not KNOW and to rely on their word is also now called into question due to the definition (and the number of FtT appeal wins too)

      The sham of the decision making process becomes the issue for a JR and this is something FtTs have not looked at as they are not concerned with HOW the decision came about but what decision was made – they are two very distinct issues

    • They are, but the question is ‘is there another route to seek a remedy’. In this situation, yes, there is an appeal to the FTT, which can deal with the ‘is it a bedroom’ issue. So I doubt a JR would get permission. And in any event, whether the bedroom is furnished and/or used as a bedroom is only one factor, not enough in itself.

    • On the latter point it has to be enough of an issue for me – HOW a council decides what a bedroom is. That is the core of the whole policy as the deduction can only be made on a bedroom not a room and the definition now adds to para 12 of the A4/2012. When it says there is no definition there now is.

      I dont see FtTs as a route to this key issue either as they focus on the decision made and not on the admin process they took to get there.

      The problem lies with HOW the LAs got there for me and their view and ‘consideration’ of what constitutes a bedroom must now change because of UT case.

      Every LA stated we dont have to define what a bedroom is in order to make the bedroom tax decision in the pre UT judgment era or to the 2013/4 decisions; now they do have to determine what a bedroom is for the 2014/15 decisions and must logically do so as part of and before coming to a decision. I dont see FtTs dealing with and being a route for this issue but JR undoubtedly is and so I would argue JR is amenable here and there is not an alternative route

    • No, there isn’t a definition. What there is is the UT saying ‘bedroom’ is to be construed as an ordinary English word.

      My view, the LA will have to consider whether it is a bedroom if the tenant raises an issue. If they confirm their first decision, it is a matter for the FTT for a remedy. Any JR would fail on the grounds that the claimant has an alternative way to obtain a remedy. Further, even if JR was possible, then given that there is no process or procedure prescribed for investigation of bedrooms, the only ground for challenge would be irrationality in the course the LA has adopted. Given that there is no definition of bedroom, how can you show that the means the LA has adopted to decide what is a bedroom are irrational?

    • ‘Bedroom’ to be construed in its ordinary meaning IS a definition.

      Rationality or its absence arguable in so many ways. How can you decide if somebody has too many rambutans if you don’t know an define what a rambutan is?
      How can you determine a claimant has too many of anything if you refuse to define what anything is?

      Also no LA is going to come out to inspect due to cost considerations so their ‘review’ is a sham and an irrational route to follow hence needing a JR determination of procedure

      There are so many arguments to be made as to why the process is a sham and now why a JR is needed as the alleged alternate route is not effective and will not look at procedure taken.

      The FTT route presupposes the tenant is guilty of having too many bedrooms in the councils sham process and the onus is on the tenant to prove their innocence via the FTT route. That is a sorry state of affairs that a deduction of benefit is taken with all the consequences of that in affordability and based on an untenable assumption that a 3 bedroomed property has 3 bedrooms just because a landlord, who has a vested interest here, says so.

      How much more irrational can this sham of a decision making process be?

      Thats off the top of my head and I can see many counter arguments to the alternate remedy position and the rationality position and I’m pretty sure better minds than mine can see many more

    • Joe. it is not a definition. And even the dictionary definitions are incompatible.

      Whether the LA has to come out and inspect is another issue. Why on earth would they have to inspect? Say tenant says ‘the room is used as a storeroom and there isn’t a bed in it’. Unless the LA wants to say that isn’t true, why would they need to see it? Whether that example is enough to stop it being a bedroom is a different matter.

      And none of what you say amounts to Wednesbury irrationality. It might certainly be bad behaviour, but it isn’t irrational.

  2. Just throwing this in. I live on a modern, mixed tenure estate of 400+ properties. Many (non SRS) houses are 3 storeys and routinely described as 3/4 bedrooms; typically with 2 ‘traditional bedrooms’ on the 2nd floor and one bedroom and a living room on the first floor. The ground floor consists of a large kitchen/diner/family room, a w.c. and a further room which is approx 12×16 feet. This is used by different households according to their needs. It can be a 4th bedroom, a study, a family room, a dining room.

    There are also many ex-LA properties locally – now SRS – which were built with a separate dining room, and others with small (though habitable) box rooms intended for storage.

    So, English is a living language and what we have nowadays is a situation where any room is what it is used for. Many ‘bedrooms’ are actually used as studies or family rooms.

    Is my ground floor room a ‘traditional’ bedroom? No. Could it be used as one one? Yes. Could I use my first floor living room as a bedroom and my ground floor room as a living room? Easily.

    There’s an argument in there somewhere…….

    • My suspicion is that this effectively leaves the situation to be determined on the facts of each case. We really are in ‘you’ll know it when you see it’ territory. Which is ridiculous.

  3. This is a statement from this blog: ‘intended primarily for sleeping’.

    Surely the only person who can have intentions over the use of a room in a house is the householder? Is it for the government, the council, the landlord or the court to have intentions over the usage of a room? Or is that exclusively the householder? My point of view is obviously that it is only a matter for the householder since they are in control of the property and the user of the property. In the case of your own flat (in again in my uneducated opinion) you rented a property with two empty rooms. ‘Bedroom’ is a word bandied about with abandon by estate agents to describe empty rooms but it has no legal force, surely? Millions, literally, like you, have rented or bought properties advertised with x ‘bedrooms’ without any intention of using them as bedrooms. ‘Bedrooms’ seems to me to be just a shorthand, almost slang, for empty rooms which buyers/renters often have no intention of using to sleep in. It seems to me to follow that these empty rooms are not bedrooms at all until somebody furnishes or uses them as such. The only properties that can be said to have ‘bedrooms’ at the point of letting are furnished properties.

    Another quote from the blog: “Does ‘used for sleeping’ as in the Collins and the UT’s version of Merriam-Webster, necessarily mean at the present moment? Would a bedroom stop being a bedroom when someone stops sleeping in it?”

    Surely the actual definition is “is used for sleeping” which would put the definition in the present tense and mean that a bedroom is only a bedroom if it is currently used as a bedroom? In my town there are solicitors’ offices in what once were ordinary dwellings. Are the offices in those houses still bedrooms because they were once used as such? It is also the case that the under-occupancy legislation is written in and refers only to the present tense. How can councils claim that it applies to rooms which were bedrooms in the past when the SI requires bedrooms in the present tense? And at no point does the SI give the council scope to include rooms which ‘could be’ bedrooms, referring only to rooms which ‘are’ bedrooms, otherwise it would also encompass dining rooms and the like.

    • Andrew

      You are looking for a precise definition of ‘bedroom’. The point about this UT decision is that there is no such definition. ‘Ordinary’ covers a lot of ground. The dictionary definitions can’t be read as legal definitions for that very reason (and of course they are mutually contradictory).

      It is a mess. It is exactly the mess that many of us predicted when the DWP decided the Regs would not define ‘bedroom’.

    • At my tribunal I will ask the council representative for their definition of a bedroom. I do not see how they can apply a penalty to a bedroom without defining ‘bedroom’ any more than the state could charge someone with murder without defining murder.

      I doubt if the council will be able to do it; I doubt if anybody could fashion such a definition so that it applies to rooms which are not used or furnished as bedrooms.

    • I’m afraid I think it is possible. For example, the intention of the landlord when building or adapting the property and in its subsequent lettings policy; The description in the tenancy agreement or an HB claim; past use (by the tenant or previous tenant). I’m not saying that any of these things are determinative. But I very, very much doubt that it will be approached simply as a matter of current use.

    • So if there are two different social housing landlords in a given council’s area and they have different definitions of a bedroom or different ways of determining what is and what is not a bedroom (say on size), we could have different statutory decisions being made by the same council? That dog don’t hunt. I can’t see how they can get away without defining a bedroom themselves as a body implementing national legislation.

    • They don’t define a bedroom because it is impossible in practical terms to do so and because any definition would have immediately been challenged. The practical thing that the DWP should have done was decide on an overall room allowance and tackle it that way.

      But yes, of course there will be differences between landlord’s definitions. Some councils (as landlords) have decided not to include ‘less than 50sq ft’ rooms, but the RSLs in the same area haven’t followed suit. This might be unjust and unfair, but that in itself doesn’t stop it being lawful.

  4. I’m looking at this issue as I would if I were representing at a tribunal. I would argue very simply using the two decisions.

    CH/1940/2012 where, as you quote, the decision states

    “The argument on behalf of the claimant put forward by the company (which is effectively the appellant in this case) requires the word ‘bedroom’ in the amendment to the 2006 Regulations to be read as extending to any room occupied by a carer providing night time care to a recipient of housing benefit, or the partner of such a person, whether or not the room contains a bed or is used for sleeping in. Such a departure from the plain and ordinary meaning of the word ‘bedroom’, if it were ever permissible, could only be justified if it was necessary to give effect to legislation implementing a provision of EU law, or to achieve compatibility with a right conferred by the European Convention on Human Rights.”

    A little later in the decision the room is further defined; “The room itself was described by the support worker as an ‘office’ and is occupied by a support worker who carries out duties which are needed for the running of the home”

    From this decision I draw the conclusion that the Judge has determined that ‘a room, originally a bedroom, can no longer be described as that when its function has changed and it is no longer used as a bedroom’.

    Moving on to CH/140/2013:

    “The word “bedroom” is not defined in the legislation. It is an ordinary English word and should be construed as such”

    Putting to one side any quibbling about the definitions quoted, which are not exhaustive of course, then we have what I’ve called the Gertrude Stein approach, that a bedroom is a bedroom is a bedroom. Even more bluntly; If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.

    That gives me my second conclusion; that if the Judge determined that a room used for the purposes of a bedroom is a bedroom then, conversely, a room not so used isn’t one. That matches precisely the earlier decision.

    We are left with the result that, in the Judges’ opinion, a room’s purpose can change and that, in turn, changes the description of the room.

    If the man on the Clapham omnibus was brought into a home and asked ‘is that a bedroom?’ may be the best test that we now have. I’d go further and say that that seems to me to be Wednesbury reasonable and that, not making such a determination where a challenge is made may be unreasonable. I think that answers your question about the study.

    I’ll agree with Joe that that moves the duty on local authorities to be much more focussed on individual circumstances when determining the presence and number of bedrooms in each property. I won’t follow his arguments about the broader challenges to the regulations.

    There are some interesting repercussions from this approach, which may be used as counter arguments by some. Is a property which would be described as over-occupied, magically no longer so because the number of bedrooms is increased by the utilisation of rooms which would otherwise not be so described? I don’t think that this would have any benefit impact in either social or private sectors.

    • Gareth, the room in CH/1940/2012 was never used as a bedroom. It did not stop being one, it never was.

      I don’t think there is enough in these two decisions to simply draw the conclusion that room use is completely determinative. I do think it makes room use a significant factor. And I do think that it makes individual circumstances relevant to a decision by the LA.

      I don’t understand what you mean by ‘Wednesbury reasonable’. There is no such test or criteria that I’m aware of.

      The statutory overcrowding provisions in HA 1985 are already predicated on any available room potentially functioning as a bedroom, save where the presence of gas fires, etc. makes that use unsuitable. The statutory overcrowding assessment recognises no difference between a bedroom and a dining room, for example.

    • Giles,

      I understood that the room had been previously used so. As the papers note, “There is no bed in the office as we do not have support workers sleeping at the property anymore”.

      Lifting from Wikipaedia:

      “Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223[1] is an English law case which set down the standard of unreasonableness of public body decisions which render them liable to be quashed on judicial review. This special sense is accordingly known as Wednesbury unreasonableness.

      The court stated three conditions on which it would intervene to correct a bad administrative decision, including on grounds of its unreasonableness in the special sense later articulated in Council of Civil Service Unions v Minister for the Civil Service[2] by Lord Diplock:
      “ So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. ”

      I think that refusing to consider the actual use of a room could be considered unreasonable.

      Thanks for the HA1985 note. Not my area I’m afraid; I weas thinking more about the situation where someone managed to overcrowd a socially rented property.

    • No, it was never a bedroom. I can only presume there was another room previously used by sleeping support workers.

      Wednesbury unreasonableness is a test. There is no public law test of ‘reasonableness’. What you would have to show was that the proposed course of action was irrational, not just that there would be another course of action that would be reasonable. So, it would not be unreasonable NOT to consider actual room use, if the proposed course of action were itself not irrational. Though failing to take into account a relevant consideration would be another ground of challenge.

      And yes, the statutory overcrowding provisions apply to social housing.

    • I can’t see anywhere in the decision which says that the room has ‘never been a bedroom’. Iwon’t argue that it was built as a bedroom, I don’t know, but it would seem that it was probably used as one when there was a support worker sleeping at the property, if the other bedrooms were used by residents.

      I’d argue that a refusal to consider use was Wednesbury unreasonable in itself following these decisions. A general policy now of using landlords’ descriptions would be fettering anyway surely?
      My point on the overcrowding issue is a little more confused. By way of an example; a couple with 4 children ‘fill’ a 3 bedroom property, under benefit regulations, and then have another baby. They put the baby to sleep in the living room. Does that room become a bedroom, for benefit purposes, because of this? Are they now resident in a four bedroom property?

    • Sorry, I misssed off the last paragraph.

      if the family had had only 3 children and had chosen to put the baby in the living room rather than sharing with another child then they would they now be still entitled to a 3 bedroom house but, because, of their usage, be subject to the bedroom tax because they are in a ‘four’ bedroom house now?

    • Oh I see! Now I understand. Well, there is the downside of the room use argument – as I tried to point out in the post. Rooms can go either way.

    • On the overcrowding point – It wouldn’t work with a baby – expected to share parent’s room, but following the general application, I’d say yes, but makes no odds as rent would be covered anyway for social housing.

      A refusal to use a particular approach just can’t be Wednesbury unreasonable in itself. It is the approach actually adopted which has to be unreasonable. It may be that not addressing something vital would help lead to that finding. That said, I’d be tempted to agree on the fettering of discretion line.

      But this is pretty academic. Given that the individual claimants have a route of remedy from a bad, uninspected decision on ‘bedroom’ through the FTT, a JR is very unlikely to get permission.

  5. Just a word on the size argument. I am coming round to thinking that the 2004 Housing Act, and the assessment of when overcrowding becomes a hazard, is more useful than the 1985 Act

    • I have to disagree on that, Ruth. There are no room sizes specified in the 2004 Act in relation to the HHSRS. And none in the LACORS Guidance. There are proposed space standards attached to the LACORS guidance but these have no statutory value whatsoever, even as Guidance.

  6. There’s another problem – how do you define a “room” This from the Liverpool Echo in Mar 2013,

    “A disabled woman from Liverpool who had a special lift shaft built through the floor of her spare room has been told she must still pay hundreds of pounds in “bedroom tax”.

    But even though housing bosses built the £8,000 lift and shaft through the floor of her spare bedroom and took walls and the door out, they have now told her she will have to find up to £600 a year to cover the reduction in her housing benefit.”

    Note especially that bit about taking out walls and a door. The presence of a through-the-floor lift makes anything except a double room unusable as a room for putting even a single bed in it, so the room would not have been a “sleeping room” even if the walls were still there, but the housing association have adopted the “once a bedroom, always a bedroom” stance.

    There have also been comments about what makes a bed, but one issue has not been raised. The estate agent described our house as having “5 bedrooms”, but you could not fit a standard adult single bed into that room. What we have established is that an inflatable airbed can be put in there (just), but only for the small child for whom it was chosen. The bed is too small for a 5-year old and there isn’t enough room for anything much bigger.

    So, does “has enough space for a carry cot and a baby monitor” turn a box room or an office into a bedroom?

    Incidentally, the ability of the sitting room to double as a carer’s bedroom might also be defined by the type of carer. A family member might be prepared to sleep on the sofa or even on a airbed in the sitting room. A paid carer might easily insist on a bedroom that no one was going to mistake for a sitting room, with somewhere to put clothes.

    Perhaps the term “carer” needs to be defined as well.

    Good job that some of us were raised on the phrase, “It all depends on what you by …”

  7. Well all this determining what is and what is not a bedroom is only relevant in a small number of cases. Everyone is aware in most cases how many bedrooms a property had before April 2013. How it was offered; what the sleeping arrangements were when the tenancy was originally taken. All of the arguments presume that the ‘bedroom tax’ is unfair. I say that in principle it is not unfair. What has been unfair for a long time is that the taxpayer should pay for social tenants to live in houses too large for them when there are thousands living in overcrowded and inhabitable conditions, mainly in the under-regulated private sector. Once again, the unfair arguments seem to emanate from London-centrics where the effects of the legislation may lead to more extreme cases; London prices for everything are over-inflated and as has been argued by some on here before, should not form the basis of legislation affecting the whole country. It is time London had its own laws on most aspects of life leaving the rest of us to live with common sense!

    • As the legislation is written you are incorrect on all counts. The legislation refers only to the present and does not allow councils to count rooms as bedrooms just because they were used as bedrooms in the past. Tenancy agreements and previous usage are, in the terms of the SI, irrelevant. The bedroom tax is inherently unfair and this is agreed by all those who know what they are talking about. The housing shortage has been caused by governments not by social housing tenants and the only solution to it is to build more houses.

    • Chris,

      Regardless of any discussion of ‘principle’, the practical situation is that current social housing stock does not and cannot match the presumed room needs of the tenants. There is a huge national shortfall in one and two bed properties, and conversely, many social landlords are now finding it impossible to find occupiers for larger 4 bed properties. Any suggestion that the bedroom tax was imposed with the intention of righting the position as regards occupancy fails at the first hurdle. The DWP was well aware that the stock required was not available and, significantly, its estimated savings figure was based on the assumption that no-one would move and would instead, somehow, pay the shortfall.

      If you wish to argue principle, that is one thing, but to completely ignore the practical disaster that was and is the current practical consequence, and of which the DWP was repeatedly informed before imposing the bedroom tax, is a ridiculous posture.

      And I don’t know what London prices have to do with it. You appear to be confusing this with the benefit cap.

    • I’m not confusing it with the bedroom cap at all. 14% or 25% reduction in HB on rent of £100 per week is a very small compared with rents in the South-East in general and London in particular. And as I have said before the reduction does not go far enough, exempting the biggest numbers of under-occupiers, the elderly. But then given the increasing size of the ‘grey constituency’ Governments will have one eye on the ballot box. So I agree that the legislation misses the point if not the principle; it is likely to have a disproportionate effect on those who cannot downsize rather than those who can easily do so but refuse. I haven’t seen the figures nationwide (if they exist) but in Gloucestershire there are (and have been for several years) a significant number of empty flats in elderly persons dwellings (Sheltered Housing) and a significant under-occupancy amongst the elderly still living in the rest of the social housing sector.

    • Still not seeing how you get from private sector prices in London to ‘London-centric’ unfairness of the bedroom tax. No connection. And the areas with the biggest bedroom tax problems are in the North. I also don’t see how extending the policy to pension age would actually help with the shortfall in smaller properties. It would simply make it worse.

      Sorry Chris, this is just not coherent.

    • Vicki – the Liverpool case you refer to was that of Janet Bell and I solved that problem before the bedroom tax came in by gettign the landlord to state and the council to agree that the property was a 3 bedroomED property yet had 2 functional bedrooms.

      The landlord preferring this option to a deed of variation with a sunset clause

      There was initial grandstanding by the landlord but given the vertical lift took away one of the walls of the former third bedroom it became a mere space and not even a room and the landlord very quickly saw this and the whole issue was resolved within 72 hours. A room needs to be enclosed by walls and in this case it wasn’t: hence if it cant be a room it cant be a bed-room!

    • I am not and never have been a Conservative; I am a socialist; Indeed I was part of a group who argued for establishing the Tax Credits system (which now has become far too generous), but I don’t believe in universality which leads to everyone getting something for nothing, including the rich and well-off; targeting and means-testing is the only way to make sure that the ‘have-nots’ can benefit whilst those who are well-off stand on their own two feet. And before you say it, the Health Service is the exception to my aforementioned opinion on universality; but I don’t believe that those who choose to use private healthcare should be able to have both.

  8. I had a First Tier Tribunal hearing last week and the judges decision was …. “Whether a room is a ‘bedroom’ is a matter of fact to be determined by me (judge), and just because a room is not used as a bedroom does not mean that it cannot be such. Although I accept the Mr.******* uses his 2 additional rooms as claimed (storage of work related equipment and computers) I do not find that this use is necessary to enable him to continue to live in the dwelling”. Appeal refused.
    I am asking for the reasons for the decision before I challenge it.

    • Seems like an emminently sensible and correct decision by the Judge.

    • It is not by any means an ’eminently sensible’ or ‘correct’ decision. The judge is effectively saying the rooms (and they are rooms, not bedrooms) ‘could be’ bedrooms. The under-occupancy SI nowhere gives councils the latitude to count rooms which ‘could be’ bedrooms, only rooms which ‘are’ bedrooms.

    • I think the judge is right in saying that he can determine whether the room is a bedroom.

      I think that he’s wrong in introducing a test of ‘necessity’ about the use of rooms.

    • He is. There is no clause relating to ‘necessity’ or to the potentiality of rooms in the under-occupancy SI.

    • You can’t just insist that the regs define something when it suits you. Either ‘bedroom’ is an ordinary term, or the meaning has to be specified in the regulations. It is open to a tribunal to decide that a room intended by the landlord to be a bedroom remains one unless it has to be used otherwise. I’m not saying it is necessarily right to reach that conclusion, but it is clearly open to a tribunal to decide that that would be part of the ordinary meaning of bedroom. Whether the Regs contain reference to necessity is neither here nor there.

      This is the point I keep making about the ‘ordinary word’ approach. It can cut both ways.

    • A necessity argument can also work both ways surely? If a rooms definition is determined by the need for its use then that must apply to bedrooms too. If it’s needed as a bedroom then it’s a bedroom… but if it’s not needed…

    • No, I don’t think it does. The necessity question derives from the tenant’s occupation of the property. Is it necessary for the tenant’s continued enjoyment to the property to use the room in the (non-bedroom) way? But a room can easily be a bedroom even if it is not needed as such for the tenant to occupy the property.

    • The 1996 Loophole.
      Sometimes when we have such complex issues to unravel we forget about the basics. For example the inquisitorial responsibility of a tribunal. We should be exploiting this function.
      It seems to me that the DWP has instructed LAs to fend off claims because the tenant has not or cannot prove s/he has been in receipt of HB throughout the relevant period. For some years now a claimant can ask to be sworn in and/or tribunals can ask the claimant to be sworn in. The sworn statement from the claimant then becomes evidence in chief and the tribunal can make a decision based on the oral evidence of the claimant alone.
      The statement as far as I am concerned will be the only direct evidence the tribunal can consider. The DWP and/or the LA have already admitted they do not have any evidence therefore they have no proof that the claimant has not been in receipt of HB since 1996.
      My opinion is that written statements should be prepared and submitted to the tribunal in advance of the hearing. This works well in employment tribunals because the tribunal is adversarial. The statement also prepares the appellants for hearings.
      The tribunal also has the power to consider all evidence including circumstantial Also affidavits could be used. As I am a member of Unite the Unions Community Branch in Liverpool. We have the Union solicitors on-hand to assists with affidavits; experienced welfare rights workers and volunteers to help claimants..

    • To unravel this, first, the Tribunal does not have an inquisitorial responsibility.

      Second, the Tribunal can consider various kinds of evidence, regardless of your opinion about statements.

      All that aside, the Tribunal does decide on the civil proof standard – balance of probabilities – so if the tenant can produce decent evidence that would lead one to believe it was more likely there had been a continuous claim since 1996, that should succeed over a Local Authority saying ‘we haven’t got the records left to show that they did, so we don’t believe it’.

    • “No, I don’t think it does. The necessity question derives from the tenant’s occupation of the property. Is it necessary for the tenant’s continued enjoyment to the property to use the room in the (non-bedroom) way? But a room can easily be a bedroom even if it is not needed as such for the tenant to occupy the property.”

      That’ s a Catch 22 then!

      From your basis of argument, you seem to have to assume that the room is a bedroom in the first place.

      But, what is a bedroom?

      In fact, rather than Catch 22, I think that I’ll try and work on the scansion of ‘there’s a bedroom in my property, dear Lisa, dear Lisa…’

  9. Yet another as clear as mud issue with the bedroom tax.

    “You can’t just insist that the regs define something when it suits you. Either ‘bedroom’ is an ordinary term, or the meaning has to be specified in the regulations. It is open to a tribunal to decide ”

    It would appear ok for councils to chose to believe the word of a landlord on a blanket basis, the word of a vested interest who according to guidance (para 20 A4/2012) is not obligated to give the LA any data whatsoever, and nowhere in regulation does it say landlords provides data to LA.

    So the LA can choose to operate guidance in doing that yet also choose to ignore guidance in the same paragraph 20 which says they should believe the claimant!

    In choosing to dip in and out of guidance and regulation when it suits the LA imposes the bedroom tax based on assumption and not on fact, and especially when it has not inspected the property. (Note Fife press release 2 days before decissions when judge said the councils HAD NOT EVEN been out to inspect these disputed properties!)

    In doing all the above the LA makes the claimant prove his innocence rather than base a decision of fact and so in order to get a decision based on fact and not asseumption or LA expediency, the claimant is compelled to go to the tribunal.

    Farce just doesnt cut it and especially when this hugely irrational process is said not to be irrational.

    How can the courts rightly say the decision depends on the individual facts of each individual case yet it is permissible for LAs to operate a blanket decision making strategy!

    • Joe, you are muddling matters. And there is and can be no obligation on the council to inspect the property on every decision. Even if all the arguments are room use were right. It is entirely rational for a Council to operate on the basis that information provided by the landlord, or on the HB claim forms, or stated in the tenancy agreement is correct. If that information is challenged, or disputed, that is a different matter. I would agree that, depending on the issues raised in a challenge or dispute, it would be reasonable for the council to inspect.

    • Giles, we are subtle nuances apart again.

      There is nothing I agree in regulation that says a council must inspect. Yet any ‘reasonable’ dispute as to size or usage strongly suggests they do need to inspect I agree.

      However, they will not go out to inspect due to cost considerations and that does mean that the only way for a tenant to get a correct decision is to appeal.

      I wont bring rationality into that as there is rhyme or reason in LAs not inspecting and none in making life changing decisions based on assumption and the word of a vested interest who has no obligation to give any data to the LA

      Time for LAs to lobby government to bring back the rent officer service for social housing properties and with a remit to include a detailed and (as the guidance says for landlords) an accurate description of the property – said descriptions the courts are finding landlords have not given yet LAs swallow hook line and sinker out of expediency and not rationality…and most definitely not out of fact

    • It is not irrational for LAs to base the decision on information provided to them. The vested interest argument just doesn’t stand up, as it is the landlords facing the arrears.

      Of course, what the DWP should have done in the first place, if they wanted Regs that actually worked, is base the Regs on a ‘size of property/number of rooms’ basis, not get caught up in the ‘bedroom’ farce.

  10. If the LA is the Landlord it does have a vested interest and thus cannot be impartial:

    The principle of impartiality is structurally weakened in administrative procedures because the
    administration is party and judge in the procedure. Therefore it is necessary to establish legal measures to
    re-establish the equilibrium between the parties or at least to reduce the likelihood of unfairness. A
    minimum of impartiality should be guaranteed. Therefore the withdrawal from the procedure of those
    officials who have a personal interest (typical conflict of interest situation) in the outcome of the procedure should be mandatory. Otherwise the administration would incur into abuse of power. Another requirement
    for impartiality is that any party in the procedure should be entitled to recuse any intervening official
    suspect of having an interest in the outcome of the procedure or having qualified friendship or enmity or
    kinship relationships with any of the parties.

    HB adminstered by council: council is landlord rgo Landlord is not impartial, thus breaches impartiality legislation.

    • I’m afraid not. The Council as benefit authority is carrying out decisions based on regulations made by government. You can’t make an accusation of bias based on a council carrying out its statutory duties.

      Also, I would have thought that the council’s interest as landlord would coincide with the tenant’s – getting the rent paid.

  11. Judge at CH/140/2013 upper tribunal is incorrect re bedroom definition IMO. His logic dictates that any room in which you can sleep can be considered a bedroom purely because you can sleep on the floor. A 1bed flat with separate kitchen, living room bathroom and hallway could be considered a 4 bed property, preposterous. The main use of the room must be considered.

  12. Hello,
    not sure if you can offer me any advice but here goes, its not relating to bedroom tax but still related the “bedrooms”
    i have a daughter who is almost 12 and in a bedroom 10ft x 8ft
    and myself, hubby and almost 4 year old son in a 13ft x 13ft bedroom, The council say i am not over croweded as our living room can be used as a sleeping area.

    can you offer any advice on how i can get them to move me to a 3 bed

    • Hi, I’m afraid we can’t offer advice. But while you might not be ‘statutorily overcrowded’, you should check your council’s allocation policy (it will be on their website) for what they class as overcrowded. Try to get advice from a local law centre or CAB if possible.

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