An interesting First Tier Tribunal decision from Sunderland (Statement of Reasons).

The claimants/appellants were joint tenants of what had been a three bedroom property. One of the joint tenants suffers from severe and degenerating muscular dystrophy, and had been reliant on a wheelchair for the last 14 years. In about 2006, the property had been adapted in view of the tenant’s disability. Two bedrooms were knocked into one large one and the existing stair lift was replaced by a vertical lift from the living room into what had been the third bedroom.

Despite this, the property was assessed by the council as having two bedrooms (originally they found three bedrooms, but this was revised) and a 14% HB deduction levied.

On appeal to the FTT, it appears that arguments around Art 14 discrimination and about room size and use were put to the Tribunal. However, these were not the FTT’s prime concern. The main argument by the appellants that was considered was whether a room giving access to the lift could be considered a bedroom.

The Council argued that a bed could be fitted in the room, so it was a bedroom.

The FTT insisted on a site visit, carrying out detailed measurements, as evidence on the size of the room and the way in which the room was used for access to the lift was not supplied.

The FTT found that a single bed could be fitted into the room. However, the meaning of a ‘bedroom’ is a matter of  ordinary usage and hence a matter of fact for the Tribunal. Any appeal would have to be on the basis that the findings of fact of the Tribunal were so unreasonable that no reasonable Tribunal could have come to that conclusion.

Findings of other Tribunals were not binding, and were only on the facts of those cases.  In addition the facts considered were only at the date of the decision and could well change in the future. The tribunal had been pointed at legislative provisions on ‘bedrooms’ (presumably HA 1985 and HA 2004) but “the definition in other legislation is nothing more than informative” regardless of what other Tribunals might have found on the facts.

This tribunal found that, although a bed could be fired into the room, constant access to the room was required for using the lift, including sometimes at night.  A bedroom connotes a “degree of personal space and privacy”. It is not “just a place where you sleep”. Therefore the room was not a bedroom as “it lacks that degree of personal space and privacy integral to the definition of a bedroom.

Comment
This is a tribunal that is very carefully appeal-proofing its decision. While it might have found on Article 14 grounds, or even, just perhaps, on room size grounds, both of those options are expressly discarded. The Tribunal is at pains to establish that it has four wholly on the facts, as at the date of decision, and not on any issue of law. It sets out its view – correctly, I think – that the tribunal’s decision on facts is not subject to appeal unless completely unreasonable, and goes on to establish that what is a bedroom is an issue of act. Having inspected, measured and assessed the use of the room, the Tribunal’s findings of fact are pretty much unassailable. So, unless there is an appeal on whether the ordinary usage of ‘bedroom’ does not connote ‘a degree of personal space and privacy’, (which would be an interesting, not to say barking, appeal), this decision looks watertight.

As such, advisers to tenants might want to consider this decision and the approach it takes. An argument on the facts, on the ordinary usage of bedroom, might well  be one the tribunal would prefer over an appealable confrontation on Article 14 grounds, or an issue of law over the relevance of the Housing Act 1985 room size descriptors.