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.