On folding beds and sleeping bags

A new bedroom tax First Tier Tribunal decision from Monmouthshire raises some issues on the FTTs’ approach to room use. The decision notice with summary reasons is here (and also on the FTT decisions page).

The Claimant lived in the property with his wife and adult son. The property was classed as a 4 bedroom property by the landlord and a 25% bedroom tax deduction levied. The tenancy agreement stated the property was suitable for 6 people.

Two of the rooms were below 70 sq ft. These rooms were argued to be ‘box rooms’, one used as office for a computer and storage, the other used as a room for painting and artwork. The smallest of the two had a seat which could be pulled down and slept on if necessary. It was occasionally used by the claimant’s daughter if she stayed over and sometimes, rarely, by the claimant when his wife was restless due to her disability.

The FTT decided:

‘Bedroom’ is not defined by the legislation.  This has most recently been pointed out in the Upper Tribunal decision 2014 UKUT 48 AAC.  A(t) paragraph 19 of that decision the Tribunal helpfully refer to various definitions of a bedroom.

 

The Tribunal finds that neither of the two smallest rooms are bedrooms. They do not contain beds, they are not used for sleeping, they can only be occupied by a child under 10, a half person according to the overcrowding regulations. That on rare occasions the seat is pulled out so that it can be slept on does not make the room a bedroom and more that [sic. ‘Any more than’?] putting a sleeping bag on the floor of the living room would make that room a bedroom. The Appellant would not be able, due to the size of the room, to let the room to a lodger to assist with the reduction in Housing Benefit because it is not big enough. The property would in any event become overcrowded.

So, the two smaller bedrooms weren’t bedrooms and there should be no bedroom tax deduction.

What can we take from this? It is, of course, a non-binding FTT decision.

First, the room size argument seems to have been generally and widely accepted by the FTTs. The 70 sq ft cut off point, imported from the statutory overcrowding provisions in Housing Act 1985, is being routinely accepted. This argument is due to go before the Upper Tribunal in one of the Fife decisions being appealed by DWP, but in the interim, before a binding decision is reached, the FTTs appear very happy to find on the room size basis.

Room use also makes a brief appearance here, in conjunction with a reference to the Upper Tribunal decision in  Bolton Metropolitan Borough Council v BF (HB) [2014] UKUT 48 (AAC) [our report here]. The line ‘they do not contain beds, they are not used for sleeping’, is a direct reference to the UT decision.

However, the FTT has got itself thoroughly confused about the Bolton UT decision. Where it goes on to say “That on rare occasions the seat is pulled out so that it can be slept on does not make the room a bedroom and more that putting a sleeping bag on the floor of the living room would make that room a bedroom”, that is the exact opposite of what the UT decided.

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.

And

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 FTT is therefore simply wrong to say that putting a sleeping bag on the floor of the living room would not make it a bedroom. The UT has decided that it could. I can only presume it was a very hasty reading of the Bolton UT decision on the part of the FTT.

So, while this does appear to be partly a decision on room use, it is just not a very good one in that regard, at least in terms of the approach to the UT Bolton decision.

It will be interesting to see how the UT decision does play out when properly considered by an FTT on the bedroom tax. But sadly, this FTT decision is so flawed in its reading of that decision that it doesn’t advance the room use argument much at all.

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 .

26 Comments

  1. Surely the difference between this case and the UT case is that here the chair was ‘pulled out’ and used for sleeping on ‘rare’ occasions whilst in the Bolton case the daughter was sleeping in the lounge 3/4 night a week?

    • It is a difference. I’m not saying the FTT should have found it was a bedroom based on that occasional use, but that the FTT’s comments show it did not understand the UT case.

  2. The Bolton UT decision, and the earlier Carmarthenshire one that it cites, differ from bedroom tax cases in one crucial respect: they are concerned with private tenants seeking an extra room in their LHA because they have overnight care. Such cases turn on current use – unless the room is currently used as a bedroom the claimant cannot get the larger LHA. That is why the discussion in those cases focusses so much on current use. The working definition of bedroom has to be seen in that context. Until the UT pronounces on some bedroom tax appeals we do not know how easily the Bolton and Carmarthenshire cases will transfer across. I think current use is a relevant and important fact in bedroom tax cases, but not the only one: I think it is also relevant to take into account whether another household with more children, say, would use the room as a bedroom. The way this FtT has relied on the Bolton case seems dangerously close to saying a room is a bedroom when it suits the claimant that it should be, in which case a temporary bed will swing it, and not a bedroom when it suits the claimant that it should not be, in which case a temporary bed doesn’t change anything.
    When we we finally do get some UT case law handed down on bedroom tax it is important to note that it will not have retrospective effect on other “look-alike” cases because of the “anti-test case” rule that exists in benefits. So people who win FtT appeals before that time will at least avoid the bedroom tax up to the date of any UT decision. And if the UT appeals go the claimant’s way, people who come forward after that date will not be entitled to arrears before the date of the UT decision. So the message is still the same – keep on appealing and airing those innovative arguments, and do it now.

    • Peter, I agree on the difficulty of mapping the Bolton UT decision onto a bedroom tax case. I said as much in my note on the case. I also agree that in deciding what isn’t a bedroom, other factors that those used to decide what is being used as a bedroom may come into play.The most I’d be prepared to state with confidence at this point is that the Bolton UT decision means that current use is a factor.

  3. ” I think it is also relevant to take into account whether another household with more children, say, would use the room as a bedroom.”

    Why do you think that? Where in the under-occupancy SI does it refer to how a room ‘could be’ used’? Where in the SI does it refer to how rooms were used in the past? The SI refers only to ‘bedrooms’ and in the present tense and, to an untrained eye like mine, means what it says: it requires ‘bedrooms’ and bedrooms in the here and now. Nowhere does the Monmouthshire (?) decision refer to how rooms may have been used in the past or how they could be in the future, probably because the regulations as they stand do not allow councils those latitudes.

    Let’s hope so anyway.

    • I think that because current use is the only relevant factor in an overnight care case, which is the context in which those UT decisions were made. In other contexts the meaning of bedroom may depend on other things. For example if a builder is marketing a new-build house they describe it as having a certain number of bedrooms even though no-one is using them at all for anything yet. In that context, bedroom means a room that a prospective buyer would probably want to use as a bedroom. It’s a mistake to read the comments in the overnight care decisions as if they provide a statutory definition of bedroom for all purposes. But as I said earlier, current use is obviously an important factor and perhaps the first thing a Council should consider.

  4. I would never understand how the marketing practices of builders or estate agents could have any legal force. Any number of people obtain homes with more ‘bedrooms’ than they need because they have other intended uses in mind. QED they are not ‘bedrooms’ till someone furnishes them as a bedroom. The only area where this would not apply is a furnished house with rooms sets up as bedrooms. Otherwise they are just ‘rooms’; and the SI does not apply to rooms, only bedrooms.

    • It isn’t about ‘marketing practices’. It is about what can be considered to be ‘ordinary usage’ of ‘bedroom’. As I keep pointing out, even the dictionary definitions cited by the UT are mutually contradictory. And as the UT found, it is not necessary for a room to be furnished as a bedroom for it to be one, so your Q is not ED’d.

    • I referred to ‘marketing practices’ because I was replying to a post in which ‘marketing’ was used as an argument.

      I agree that the definitions of a bedroom are mildly contradictory, but without exception they require that a room be furnished as a bedroom or used as a bedroom to be called a bedroom. In a case where neither of these requirements is the case, how would an FtT be able to apply them to, say, an office or library?

      I also note from this judgment the paragraph from MG v.
      Carmarthenshire CC and the Secretary of State for Work and Pensions [2013] UKUT 363 (AAC):-

      “8. 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.”

      Does this not effectively say that a room that is not furnished with a bed and which is not used for sleeping can only be regarded as a bedroom if it needs to be to satisfy EU law or the ECHR? Does the last sentence not mean that a departure from the ordinary meaning of the word bedroom can only be considered to meet the requirements of EU directives or the ECHR? That is, at least, how I read it.

    • Because the dictionary definitions of bedroom are not the be all and end all of ‘ordinary meaning’. Obviously. I keep saying this. So do others. And no, the Carmarthenshire decision does not say what you think it does. It says a room that was not a bedroom, had not been used as a bedroom and was not currently being used as a bedroom, was not a bedroom just because it was a room used by a carer overnight.

      Just pause for a moment and think of the problems with the room use argument you are insisting on. In the Bolton case, it would mean that the room was a bedroom 3 days a week and not a bedroom the other 4 days. This is not what the UT found, it said the living room was a bedroom all week. So it is entirely possible for a room to be a bedroom even when it isn’t being used as a bedroom or furnished as a bedroom. The UT has said so. Anything else is arguing over periods.

      Once you start arguing over how often a room has to be slept in to count as a bedroom, you are already well away from the dictionary definitions. But that is where the Bolton UT went.

      There is no simple, categorical definition, no matter how much you want there to be one.

  5. If new builds advert a 2,3 or 4 bedroom property then each ‘bedrom’ should be able to have bedroom furniture in it ie standard d/wardrobe, chest of drawers, bedside cabinets,dressing table and a bed. This is what is advertised as bedroom furniture and one which people buy for the use of. The area of 70 does not accommodate that, but people use a room for IT or storage as new houses do not give that unless above 3 b/rooms place, and computer stuff cannot be accommodated in living rooms as Lifestyles need people to keep paperwork on personal reasons with use of computers for daily lifestyle also. Things have changed from the 60’s when those houses were bigger and over the years houses built have become smaller,which furniture has become smaller to fit in.

    • Sorry Brenda, you are heading into the territory of making up your own criteria. And as shown by the Upper Tribunal Bolton decision, absolutely none of that is necessary for a room to be considered a bedroom.

  6. Can I, an interested non-specialist, join in?

    The question of overnight care is not a clear-cut either/or. We do not often need overnight care, but when we need it, it is because it would be essential.

    As for marketing and how many bedrooms, we are privileged owner-occupiers, so fortunately not losing sleep over this issue. We have a large house which would quite sensible be marketed as 6 bedrooms. Only two of them are regularly USED as bedrooms. Disability brings complications and forms of usage that surely should be taken seriously..

    • There are limited exceptions that are disability related. But the FTTs have taken the question of need through disability seriously and there have been a number of decisions finding the bedroom tax deduction to be discrimination under Article 14 of the Convention on Human Rights.

      There are criteria relating to the overnight care exemption – where the care is for the claimant or their partner. They should be in receipt of care component DLA, for example.

  7. hi there quick question re overnight carer. my son needs overnight care often. he needs to move to be nearer to carer. incommunities in bradford refuse to allow him to bid for a 2 bedroom property. how do i force their hands? they have said the only way they will allow this is for housing benefit to write a letter to them saying they will pay for him two bedrooms. hb refuse saying there is no such letter. i know legally disabled people can qualify for an extra room for overnight care because i myself am allowed 2 rooms by hb. what do i do now? thanks x

    • Council doesn’t like it is being very helpful. Obviously they cannot guarantee that a person’s circumstances will be the same in the future as they are now, but they should be able to write a letter in general terms setting out the rules on overnight care and saying that, as it currently stands, this prospective tenant appears to satisfy those rules. There might not be a letter template in their system, but you would think someone might have the courtesy to draft one specially. Is your son currently getting HB from Bradford? Is he getting HB from a different Council? Just trying to think of the best way to get it onto the right desk …

    • If your son is the tenant and HB claimant then he is entitled to HB for an additional room for overnight carer. The difficulty would be getting someone at the Council HB to actually confirm, in general terms, that this would be the case. Might be worth seeking the help of an advice centre of CAB for a request.

  8. In relation to room size and overcrowding legislation, I am beginning to think we should be looking much more at the Housing Act 2006, and the Healthy Homes Safety Rating System rather than the 1985 Housing Act. I would appreciate more guidance from a housing specialist on how the HHSRS actually works , but my reading of the HHSRS and the associated Operation Guidance and LACORS guidance, is that in practice, where a room does not meet the size standards (70 sq m for one, 110 for 2) or cannot accommodate the necessary bedroom furniture, then it would immediately be classified as a hazard (a Class 1 hazard?) if the numbers of occupants meant that it had to be used as sleeping accommodation. There is therefore a very strong argument that a room cannot be classified as a bedroom if, to do so, would mean that it is identified as a “crowding and space ” hazard. Have only had a quick glance at the Carmarthenshire decision but it seems to me the references to Environmental Health are in relation to the the 2006 Act. Ruth

  9. I disagree that the Monmouthshire decision misinterprets the Bolton decision, when each is taken in context. There are two reasons for this: (a) I don’t accept that the definition of a bedroom for the purposes of Regulation 2 (1) is necessarily identical to the definition of a bedroom for the purposes of Regulation 12. (b) In any case there is a question of actual usage. The Bolton case concerns a room which was normally a lounge, but which contained a put up bed regularly used for the carer to sleep in overnight. The standard applied (which we might challenge) is that a bedroom has to either contain a bed or be used for sleeping in. The fact that the carer was regularly sleeping in the room brought it within the definition of Regulation 2 (1) (definition of a person who requires overnight care). However, this does not mean that it is a bedroom for the purposes of Regulation 12BA as it affects Social Housing tenants. It clearly doesn’t set a precedent that any room in which a put up bed or a sleeping bag could be put, should be considered a bedroom. If so, then practically 100% of Social Housing tenants are subject to the bedroom tax. The Monmouthshire decision is dealing with a room which neither contained a bed nor was used for sleeping in. put up a person overnight in a room, whether by a put-up bed or sleeping bag or otherwise is not enough to define a room as a bedroom for the purposes of 12BA. The point being made in this FTT decision is that it is not enough to argue that because a room is capable on very rare occasions of acting as a bedroom for visitors, then that does not make it a bedroom. Many lounges contain bed-settees and potentially all could have sleeping bags. Most families “put up” visitors from time to time. If this in itself meant that the room they use for this is a bedroom then practically 100% of Social Housing tenants would be subject to the bedroom tax. I feel each decision is perfectly logical in its own context. Ruth

    • Ruth, I largely agree. But the broad point I was making is exactly the one you make, that the Bolton UT decision can’t simply be ported over into bedroom tax cases.

      However, I don’t think they can be separated that easily either, such that you can simply say this is a bedroom for the purposes of an overnight carer, but not a bedroom for the purposes of the bedroom tax.

      Given that the UT said, very definitely and very clearly, that the living room would have been a bedroom if the carer had slept in a sleeping bag on the floor, and the FTT in the Monmouthshire case is referring to the UT decision in its remarks, I think there can be no other conclusion than that the FTT read the Bolton decision wrong.

      That does not mean that the FTT should have found the room to be a bedroom because it was occasionally slept in, obviously there are arguments about that. But then the issue is how often does a room have to be slept in to be a bedroom, or, indeed, is it simply enough that is available to be slept in, should the need arise.

      What I was aiming at was that seeing the Monmouth FTT as a use of and vindication of the UT decision in the Bolton case is a mistake.

      I’m also not sure about your distinction between the meaning of ‘bedroom’ in the different regs. It is apparently accepted that the meaning of ‘bedroom’ in both reg 2(1) and 12(b) is ‘ordinary english usage’. How do you differentiate between those meanings? I don’t think you can.

      Anything else and you are into a purposive argument, in effect that what the Regs were intended to mean is it is a bedroom when it benefits the tenant and it isn’t a bedroom when it doesn’t. That is not an argument I would want to rely on.

  10. “It clearly doesn’t set a precedent that any room in which a put up bed or a sleeping bag could be put, should be considered a bedroom. If so, then practically 100% of Social Housing tenants are subject to the bedroom tax. ”

    But the determinations in both the Monmouthshire and Bolton tribunals related to rooms which ARE bedrooms, not to rooms which COULD BE bedrooms. There is a whole world of difference between the two. A tribunal would take each case on its merits. A room with a bed set up which was used for visitors, however infrequent, would be a bedroom, whilst a room – say a lounge – in which occasional visitors slept on the floor or settee would not be a bedroom. It isn’t any more complicated than that.

    Speaking as someone without legal training I cannot see how the Monmouthshire judge misinterpreted the Bolton case. The Bolton judge stated “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.” That seems to me to be a reasonable assessment or determination of what is a bedroom. It happens to mirror precisely what I said to my council in May of last year, and also the OED. The Monmouthshire FtT judge applied this determination to his case: “they do not contain beds, they are not used for sleeping”. I’m not sure what he got wrong?

    • Well no, the Bolton UT decision was about whether a living room could be a bedroom, and it said it could be even if someone was sleeping in a sleeping bag on the floor.

      The Monmouth FTT said a room in which some slept in a sleeping bag on the floor could not be a bedroom.

      Can you really not see the difference? And the implications of that?

  11. The two cases are different inasmuch as the Bolton case revolved around a daughter who slept frequently and regularly in the lounge while the Monmouthshire tenant had a pull out bed which was occasionally used for sleeping. A room occasionally used for sleeping would not constitute a bedroom while a room used three or four nights a week for sleeping would be in a different category. I see no contradiction in the two cases. In the Bolton case the room was deemed a bedroom while in the Monmouthshire case it was deemed not to be a bedroom. Both adhered to the determination that a room is a bedroom if it is used for sleeping (regularly) or set aside for sleeping by virtue of having a bed, and they are, imho, consistent with each other.

    • Now you are adding in words – ‘frequently’ or ‘regularly’. That is a whole other question. Nobody, FTT or UT has dealt with that question at all.

      I’m not saying there is a contradiction between the two cases. I am saying that the Monmouth FTT clearly read the Bolton decision wrongly. Because it doesn’t say what the FTT says it said.

  12. Not one person has thought of the health and safety regulations regarding the implications of a gas fired appliance in a living room where the UTT says if you can place cushions on the floor or use a fold up bed it can be classed as a bedroom. The first thing is that if the living room is not room sealed it cannot have a gas fired appliance in it. Yet most properties have gas fires in them. If the gas fired appliance is pre 1998 it doesn’t matter if the room is sealed or not it cannot be classed as a bedroom under health and safety regulations. One last point and this is the kicker if the room above the living room or even the loft space above a bedroom contains an hot water cylinder it cannot be used as a bedroom due to recent deaths occurring due to hot water over heating and transgressing through the ceilings. The UTT DECIDION IN THE BOLTON CASE as put peoples lives in danger and must be look at quickly. I’ve just had my appeal and explained the HSE reasons why my living room cannot be a bedroom waiting for the decision.

    Alan

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