Here are couple of new First Tier Tribunal decisions (also on the FTT decisions page).
A room use decision from St Helens – a room which had been used since the start of the tenancy as a dressing room/home office, and where a sewing machine was kept and used, was not a bedroom.
From Liverpool, an Article 14 discrimination case. Couple unable to share a bedroom by reason of disabilities. Room size argument dismissed as a) was being use as a bedroom and b) tenant had agreed on tenancy agreement it was a two bedroom property. On article 14, neither bedroom was big enough to hold two separate beds, even if this would have been suitable for the couple’s needs. While similar to Carmichael case on the facts (and thus part of MA & Ors in the Court of Appeal), the tribunal distinguished between a judicial review concerned with the policy issues behind the regulations, an a statutory appeal on the merits, to be approached and determined on its own facts. The facts here were as with Burnip/Gorry, save that these were adults not children, and Gorry had found unlawful discrimination. While there was a clear logic (in MA & Ors) in maintaining that children had a greater need for protection than adults, this simply meant that Gorry could not be automatically applied to adult cases. It did not mean that the principle in Gorry could never be applied to adults. The appellant did suffer discrimination and it could not be objectively and reasonably justified.
The room use decision is a bare ‘tenant use’ finding. There is no indication that the use of the room was reasonably required by the tenant. There are now two clear lines of approach by the FTTs to room use and I suspect that the Upper Tribunal will have to deal with this issue shortly.
The Article 14 case is interesting. The Tribunal accepts an argument on the distinction between the function and purpose of Judicial review and Tribunal proceedings, similar to that argued in the Carmichael FTT, but curiously, there is no reference to the position on DHP at all. It is not even mentioned whether the appellant was in receipt of DHP. That is not so much side-stepping MA & Ors as ignoring it altogether (despite the repeated references to it throughout). If DHP was not in payment, which may be the case, it would make the FTT’s finding of unjustified discrimination clearer (and less abrupt).
I understand that the Scottish Upper Tribunal on the Nelson case (room size, primarily) did indeed go ahead on 18 September. The judgment is eagerly awaited….