More Bedroom Tax FTT cases.

A couple more FTT appeal decisions, also added to the FTT decision page.

Liverpool – room size decision [Decision notice], 52 sq ft too small to be a bedroom, supported by photos. Also notably decides that HHSRS standards apply to social housing as well as HMOs. (This is a bit confused, because of course the HHSRS standards apply. There is no suggestion that HHSRS only applies to HMOs (though they can’t be enforced against Council landlords) There is also no room size standard in the HHSRS via Housing Act 2004, so what is actually meant here is less than clear, despite saying that a room size of 6.5 square meters was necessary to avoid category 1 overcrowding).

Southwark – [Decision notice] Couple unable to share bedroom by reason of disability, argued as Art 14 discrimination.

Joe Halewood also has a decision from another Tribunal (unknown and full decision not provided), which was apparently based on room size (less than 50 sq meters). The decision states that “Nothing in the legislation makes the landlord’s definition definitive“. This is clearly the basis of every single FTT decision that has gone against the tenancy agreement or landlord’s stated number of rooms, but it can’t hurt to have it expressly stated, given DWP guidance.

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 .

5 Comments

  1. Another win post High Court Appeal that’s on the same lines apparently as ours that caused a stir 3 weeks ago . The one in SOUTHWARK, just downloaded the decision notice. With all of these cases winning both before and after High Court Appeal defeat I hope we manage to get our own case to the supreme court.

  2. Although there is no room size standard as such in the Housing Act 2004, it seems to me in practice that this is a distinction without a difference. When you read the HHSRS Operating Guidance and link it up to the LACORS guidance (which although not statutory can be taken to be authoritative) then in reality a situation in which an adult is expected to occupy a bedroom of less than 70 square feet would be identified as at least a Category 2 hazard. If the same room was a bedroom for a 9 month old baby then it wouldn’t be identified be considered too small. But outside specific circumstances like these, given that the rating system has to take into account the size of bedrooms in assessing overcrowding, there must be a tipping point at which size definitely becomes a hazard, and this size is – unless there are very exceptional circumstances – 70 square ft/ 110 square ft . So it is totally reasonable for the judge to refer to HHSRS standards, even though they may not explicitly state a minimum room size. (On the issue of HHSRS being only applicable to HMOs, I seem to remember someone incorrectly raised this objection – I assume the Local Authority – or the judge would not have felt compelled to answer it). Although the HHSRS standards on overcrowding are not very different from those in the 1985 Housing Act, I feel it is an encouraging step forward for their relevance to be accepted by a First Tier Tribunal as they do reinforce and strengthen the 1985 standards.

    • Ruth, the LACORS guidance makes no statements on room size. It does refer to a set of draft initial proposals for room size criteria. The LACORS guidance is itself just guidance. So, you are trying to say that an expressly draft proposal referred to in a non-binding guidance counts as a standard.

      Of course it is reasonable to refer to HHSRS, but without the room size criteria, it doesn’t get very far (though is helpful on requirements for natural light, windows, not having gas appliances in bedrooms etc.)

  3. I am not sure what Giles Peaker is arguing. Of course LACORS and HHSRS do not specify a minimum bedroom size, let alone the 2004 Act. However, dozens of local authorities take 6.5sqm as the minmum in advice they may offer HMO landlords, and the Southwark Property Tribunal decision upheld prohibition orders on a landlord on this basis. The judge was quite careful in her decision it seems to me, and while it is not a precedent, she has presumably some authority. Ruth is right: many LAs argue that the minimum applies to HMOs only – and my own council, Wirral, is amongst those. Wirral has no similar policy or procedure for private or social rented accommodation, so the general applicability of HHSRS has to be made explicit in submissions and then argued. Having both won this Liverpool tribunal on these arguments, and lost one on the Wirral on the same arguments and on the same day, one wonders at the legal profession. Having said that, the decision reasons and proceeding reports for the lost case could make interesting reading.

    • Yes, but HMO room size specifications are something different again, founded on HMO needs (where the ‘bedroom’ is also living space) and vary by Council, if the council has actually set any. There are very strong arguments why HMO specified room sizes are not directly mappable onto ordinary bedrooms, and it is certainly not as strong as the ‘undercrowding is the flip side of overcrowding’ argument for the applicability of the 1985 Act room sizes.

      Arguing the HHSRS is weak on room size, in my view, but stronger on other physical features of rooms (Lack of windows etc.). Of course HHSRS is relevant to non-HMO housing. That was my point, I have no idea where this idea that HHSRS only applied to HMOs came from. It is simply wrong.

      As for the different decisions, well, that is the way of First Tier Tribunals where there is no established binding precedent case law or directly relevant statute. You are asking the Tribunal to invent its decision, of course that will vary.

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