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)  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.
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.