The appellant had moved into the ‘3 bedroom’ property on marriage. He and his wife had lived there. A second room was used as a bedroom for her daughters when they stayed over. the third room, 7’8″ by 9’5″, was always considered too small to be a bedroom and used as a storeroom. On the death of his wife, the appellant moved the bed out of the second room. he then later used it as a gym, following developing disability issues. It occasionally contained a blow up bed for visitors.
The FTT found that one of the rooms had never been used as a bedroom and that second had been changed into a gym before the date of the bedroom tax decision.
The FTT went on to say:
The House of Lords Uratemp v Collins [sic] (albeit in a context of different legislation) held that the usage of a room defines what it is and that this depended on the facts at the time the decision was made. The Court also recognised that the housing provisions with which it was concerned in that case, recognised [sic] that circumstances might change during the currency of a tenancy. The Tribunal also relied in arriving at this conclusion on Upper Tribunal decision (Reference CH140/2013) [our report] applied by the First Tier Tribunal in Monmouth (Reference SC922/13/05323) [sic] [our report]. This of course means it is open to the Respondent to make a fresh decision based on a subsequent change of use.
Given this decision, there was no need to deal with the room size argument.
The same argument appears to have been successful in a Liverpool decision
Oh, where to start! While these are undoubtedly good results for the appellant tenants, and seem to broaden the argument on room use, I simply can’t see the reasoning based on Uratemp surviving an Upper Tribunal appeal, or certainly not the Court of Appeal.
Uratemp Ventures Ltd v Collins  UKHL 43 concerned whether a room without cooking facilities could be a ‘dwelling’ for the purposes of Section 1 Housing Act 1988. While the House of Lords did hold that whether a room was a ‘dwelling’ depended on use – specifically whether it was Mr Collins ‘home, where he lived’ (Lord Bingham at 12) – it is not to do with room use.
What Uratemp did not do was decide that the usage of a room decides what it is. The issue was purely and simply whether a room could be a dwelling. A dwelling is a term of legal significance, not least in Housing Act 1988. A dwelling could be one room, or could contain lots of rooms, from bedrooms, studies, morning rooms through to an indoor swimming pool, and still be a dwelling. Uratemp has nothing to say about room use, per se. What is more, the supposed finding of the House of Lords as referred to in these decisions, ‘usage of a room defines what it is’, appears nowhere in Uratemp. Clearly, the FTTs had not read Uratemp, if it was put before them.
So, lovely though it would be to have a good, solid precedent case on room use defining the nature of a room, Uratemp isn’t it, and surely would not survive legal argument in a higher tribunal, or court. Why is this important, given that these appeals were successful and maybe others would be? Because any appeal from the FTT to the UT is on an issue of law. And such a misunderstanding of Uratemp gifts the DWP just such an appealable error of law.
It is also worth recalling that in Uratemp, Lord Bingham, rather uncomfortably for the room size argument, went on to say:
If a room were so small and cramped as to be unable to accommodate a bed, I should be inclined to doubt whether it would qualify to be called a dwelling-house because, although sleeping in premises may not be enough to make them a dwelling-house, premises will not ordinarily be a dwelling-house unless the tenant sleeps there. But in my view the courts should be very wary of laying down inflexible rules which come to be mistaken for rules of law even though they are very largely conclusions of fact based on particular cases.
I have already discussed my doubts about the Monmouth decision interpretation of the Bolton Upper Tribunal decision, so I’m not going to revisit that. The links to my reports are above.