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Here is an interesting FTT bedroom tax decision from Runcorn, received via RAISE who are clearly doing good work in supporting such appeals.

The detailed statement of reasons is here (and on the FTT decisions page). The appellant is the tenant of what was classed as a 3 bedroom property by the landlord, LHT. The tenant lived there with her daughter. One additional bedroom had been found for bedroom tax purposes.

The appellant’s daughter suffered from severe physical and learning disabilities. She also had Smith Lemi Opitz Suyndrome, visual impairment and skin prone to burns and blistering through photosensitivity. She is unable to walk and is incontinent. (Her Occupational Therapist gave evidence to her conditions).

The property was a disability adapted bungalow. Since the 1990s, only the appellant and her daughter had lived there, though the third too had previously been a bedroom for another person.

The third room had been adapted to be a ‘sensory room’ for the appellant’s daughter. There was a TV, and a ball pit filled most of the floor. The room was painted black with fairy lights on the ceiling. LHA had, on the recommendation of the Occupational Therapist some 7 or 8 years before, carried out adaptions to the room, moving lactic sockets to half way up the wall, covering radiators and putting dark film over the windows (because of the daughter’s photosensitivity).

The Occupational Therapist described the room as a “sensory room, a safe environment that [the daughter] can relax and play in” and that “we consider that the sensory room makes an essential contribution to supporting [the daughter’s] safety, comfort and well being in the home”.

The tribunal found:

There is no definition of what constitutes a bedroom with the regulations. I this case there was undoubtedly a third bedroom at the outset of the tenancy and for some years thereafter. However, that does not mean that it will always be a bedroom. Rooms can change use. The Tribunal accepted [the appellant’s] evidence, which was straightforward and clear, about the current use of the room. This was supported by the Occupational Therapist’s letter. The room has not been used as a bedroom, in the sense of a place where someone sleeps, for many years, probably for over 10 years. This was not a tenptoary change in use. The room has not lain empty but has been transformed into a sensory room which evidently has a vital role to play in [the daughter’s] life. This has been known to the landlord which has carried out several adaptations at the property, including some in the sensory room itself, over the years since the sensory room was created. The tribunal concluded that what had been the third bedroom was no longer such and could not be regarded as having been such for many years.

Accordingly the room was not a bedroom under the regulations.

This is both one of the best supported examples of a room use appeal and one of the better reasoned tribunal decisions. There are a number of factors at play, each of which advisors should carefully consider for future appeals.

There is the landlord’s involvement in the alteration of the room for another purpose, giving rise to the suggestion that the landlord knew of the change of use, had endorsed it and should not now be stating that this was a bedroom.

There is the occupational therapist’s evidence on the importance of the room use for the daughter’s quality of life in the home.

There is the physicality of the change of use, over a period of years, so that this is not ‘a transient’ change.

But the finding that a room that had been used as a bedroom within the tenancy, was now not a bedroom is significant. it is not binding in any way, and the clarity of the factors indicating a permanent change of use which the landlord knew of is key, but nonetheless, there will be other cases arguable on this basis.

My view is that while this case may be appealed, it is a very strong case and one that the Council or DWP may well lose on appeal. If there is a poster case for room use arguments to go the the Upper Tribunal, this is probably it.

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.


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