A couple of new bedroom tax FTT decisions (also on the FTT decisions page)

The first, from Liverpool [reasons here], is a fairly standard room size decision on a room measuring 44 square feet. However the room had a bunk bed in it, used by the tenant’s grandchildren occasionally when they stayed.

However, the Tribunal’s reason for deciding that the room was not a bedroom for the purposes of the regulations, strikes me as one of the best, and least assailable set of reasons yet given.

The Tribunal was aware of the stipulations of the Housing Acts [1098 and 2004], as well as the Housing Health and Safety Operating Guidance and the LACORS guidance included in the submissions as to size – but although the tribunal was mindful of these standards, none of them is binding for the purposes of the legislation now being applied. However, the Tribunal considered closely the plan and photographs of the room which were supplied and the issues raised at the hearing. The room is of regular shape,and has a level ceiling – but its size of 44 square feet is particularly minimal to constitute sufficient bedroom space and the Tribunal’s view was that the room was too small to permit reasonable occupation as a bedroom […] The Tribunal was aware that relevant guidance suggest the possibility of commercial use by individuals such as a lodger or boarder, and found that a room of these dimensions would be plainly inadequate as an area for living, moving and relaxing, where there was otherwise no communal space available in the house – but even as a bedroom for a family member it was insufficient. […] [Re the grandchildren] People may sleep in many places if there is no alternative – but that is not enough for those places to reasonably designated bedrooms.

For me, the points to note here were that that Tribunal did not rely on the Housing Act 1985 Part X room size criteria, or those vaguely set out via Housing Act 2004, the HHSRS, LACORS Guidance draft appendix. Indeed the Tribunal fund these were not binding on it. This is exactly right. The Housing Acts provisions, such as they are, cannot be asserted to be binding on the FTT in the context of the bedroom tax regulations, whatever persuasive value they might be considered to have. So any FTT that bases its decision on the HA 1985 or worse HA 2004 is open to being reversed on appeal.

However, given that ‘bedroom’ is to be construed in its ordinary usage, it is open to the FTT, as it does here, to find that a room is not capable of being construed as a bedroom given its size and potential usage – and the reference to the DWP guidance on taking in a lodger is apposite. The phrase ‘plainly inadequate as an area for living, movie and relaxing’, where, as here, there is no communal space, is particularly useful.

The second case is from Rochdale [Statement of reasons here]. Brought by the tenant in person, it features a room size decision on one of two ‘additional’ bedrooms, but is notable for the rejection of arguments on the second ‘spare’ bedroom. An article 8 and 14 ‘separated family’ argument, based on the tenant’s daughters visiting and staying about two weekends a month and sometimes during holidays, was rejected. The daughters “could not be said to have two homes”, unlike  SC068/13/12820 (not a decision we have). The appeal had been stayed for a while pending any decision in the Liberty ‘family life’ JR but was re-instated after MA & Ors in the Court of Appeal.

I make no finding on the principle that a male lone parent’s right to family life is breached by the implementation of the under-occupancy charge or whether he is indirectly discriminated against. I do not have jurisdiction to do so. I cannot pre-judge the decision of the High Court judicial review claim but even if it is successful section 3(2) of the HRA makes it clear that primary legislation remains valid and secondary legislation continues to operate even where a declaration of incompatibility is made.

This passage strikes me as wrong. Not necessarily wrong on the facts of the case – there is not enough of the evidence mentioned here to even consider that – but that the Tribunal’s understanding of the HRA and its obligations to read legislation compatibly with the Convention rights. While it is indeed true that the FTT cannot make a declaration of incompatibility, it certainly can consider whether there are discriminatory breaches of convention rights in the specific decision under appeal, and if the legislation can be read in a manner that is compatible with Convention rights, to consider the decision via that interpretation.

I have raised concerns over various FTT’s approach to remedy once having found discrimination. But I think this FTT falls into error in the other direction.

The FTT also addresses what was raised before it as ‘the Bolton case”, meaning Bolton MBC v BF (HB) [2014] 48. The Claimant had argued that ‘the Bolton case’ meant that the rooms should not be bedrooms because they were not used as such. Having summarised the decision in BF, the FTT states, bluntly:

This case is not relevant to the issues in the case before me.

While there may be argument about exactly how correct that statement is, as the Bolton UT decision does, at the least, make clear that room use is potentially a relevant consideration in deciding whether a room is a bedroom, this does show that the overly simple argument that ‘no bed = no bedroom’ that some saw as following from the Bolton decision is unlikely to actually work.