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The elephant in the bedroom


Finally, the long awaited Upper Tribunal decision on room size and the bedroom tax has been released. A copy of the decision can be downloaded here.

SSWP v David Nelson and Fife Council, SSWP v James Nelson and Fife Council [2014] UKUT 0525 (AAC)

And the upshot? Well, frankly a bit of a mess.

The appeals were by the DWP of two Fife FTT decisions that rooms of 64 square feet and 66.3 square feet were too small to be classed as bedrooms. As the UT put it, both the FTT decisions found that:

i) under occupancy can be seen as the flip side of overcrowding, [Referring to Housing (Scotland) Act 1987, which are the mirror provisions to Housing Act 1985 Part X]
ii) having regard to Circular A4/2012, that paragraph B13(5) generally presupposes that to be classified as a bedroom a room should be large enough to be appropriate for use as a bedroom by an adult – or by two children, and
iii) had Parliament intended that these long-standing statutory minimum standards should be disregarded by the Tribunal, the FtT would have expected that to have been clearly stated in the legislation.

This was the UT’s summation, though it noted that the reasons for the FTT decision were ‘hard to follow’ such that it had failed to adequately explain its conclusions (perhaps a little tu quoque, as we shall see, though the appeal was allowed on that ground).

The DWP’s appeal was as follows:

It was argued by the Secretary of State (and through the opinion obtained by it) Fife Council that the FtT erred by treating the Housing (Scotland) Act 1987 as being in pari materia with the Amended Housing Benefit Regulations. We acknowledge that if taken in isolation, the conclusions that:
i) under occupancy can be seen as the flip side of overcrowding (paragraph 24), and
ii) had Parliament intended that these long-standing statutory minimum standards should be disregarded by the Tribunal, the FtT would have expected that to have been clearly stated in the legislation, and it has not been (paragraph 29),
indicate that the FtT was, or may well have been, treating the two pieces of legislation as being in pari materia.

But the UT found that this was by the by. It was probably the case that the FTT had not done this, but in any event the FTT’s conclusions (as summarised above) were wrong in law.

Under-occupancy was not the flip side of over crowding (and thus the Housing Act 1985 or Housing (Scotland) 1987 overcrowding provisions) because:

i) the legislative intent behind the relevant part of the 1987 Act (Part VII) to create a criminal offence if property is overcrowded is very different to that relating to the Regulation B13 of the Amended Housing Benefit Regulations,
ii) Part VII of the 1987 Act operates very differently to Regulation B13 in that Part VII treats living rooms as rooms available for sleeping, disregards children under the age of 1, expects adults of the same sex to share a bedroom and in Table II (which is the table that refers to floor areas) an aggregate for all the rooms defines the permitted number of persons who can sleep in a house,
iii) the significant differences in approach between the two statutory regimes and their underlying purposes mean that it would be wrong to transport only some elements of the 1987 Act regime into the application of Regulation B13, and
iv) the 1987 Act (a) does not have the consequence that of itself use of a room below the size referred to by a person (e.g. by an adult of a room less than 70 square feet) is an offence, and (b) it leaves a room having a floor area of 50 square feet or less out of account for its purposes.

The expectation that Parliament should have expressly ruled out the relevance of the overcrowding provisions was wrong in law because

i) the well established approach known to Parliament that when it enacts a statutory test that uses familiar and ordinary English words, and does not define them, the court construes and applies the test in the way set out in paragraph 19 above, and
ii) in these cases the statement made by Lord Freud to the Grand Committee of the House of Lords on 15 October 2012 (summarised in paragraph 12 of Circular A4/2012) and set out in the written submissions on behalf of the Secretary of State as follows:

— after discussions [ with various interested entities] we have concluded that most welcome the flexibility that comes with not including in the regulations a definition of what constitutes a bedroom. Some landlords made it clear that defining this in legislation would introduce a system that might involve them having to measure every room. So we are leaving it to landlords to specify the size of property, as they are best placed to do that. We expect the information that they provide to be reflected in the level of rent charged and to match what is agreed in the tenancy agreement.

We also agree with the Secretary of State that the choice by Parliament of a test using an undefined familiar or ordinary English word supports the view that Parliament intended to allow decision makers to take account of all relevant circumstances on a case by case basis.

So, the HA 1985 overcrowding provisions should not be read into the bedroom tax regulations – thus ruling out any challenge brought purely and simply on the basis of room size (50 sq ft or 70 sq ft) and yes, ‘bedroom’ is an ordinary English word and not defined in statute.

But this does not mean that size is irrelevant. Indeed decisions makers and the FTT can take the HA 1985/Housing (Scotland) 1987 Act provisions into account:

However, the differences in the legislative regimes means that the only effective relevance of this, and for example the Tudor Waters Report (which relates to the building of houses for soldiers returning from the First World War, and was referred to by the Fife Law Centre in its further submissions), is that the floor areas referred to in them provide cross checks that indicate that (or warning bells that) the room may be too small and thus the need to provide reasons why, in the particular case, either it is or is not too small.


It follows in our view that the floor areas relied on by the FtT cannot lawfully be treated as determinative of or effectively the decisive factor in reaching the conclusion whether or not a room is a bedroom for the purposes of Regulation B13 and that, as this is what the FtT did, it erred in law.

But size is a factor. In fact the UT offered up other factors that would need to be considered in addressing whether a room was capable of being a bedroom. In doing so, arguments made by the DWP took a complete pasting.

So, for example, in so giving effect to the statutory language, in our view the argument advanced by the Secretary of State before us that any room will be a bedroom for the purposes of the regulation if its floor space is big enough to accommodate a single bed (size not mentioned) even if all the sides of that bed would touch a wall or an outward opening door is absurd. The absence of any reference to the height of the room, its ventilation, its natural and electric lighting or whether it has a window is fatal to that argument. But assuming that when they are factored in they do not rule out the conclusion that such a room is a bedroom the consequence of the argument, namely that a person would have to get ready for bed and then jump from a passage through an outward opening door to get into bed, would have nowhere to put clothes or say a glass of water (other than under the bed where it abuts the door) shows that that description of a bedroom does not fit with its ordinary or familiar meaning.

What the UT is groping towards here is an idea of a bedroom as a room which is capable of being reasonably used as a bedroom. But this is a room that could be reasonably used by anyone under Reg B13 (5):

a. a couple (within the meaning of Part 7 of the Act);
b. a person who is not a child;
ba. a child who cannot share a bedroom;
c. two children of the same sex;
d. two children who are less than 10 years old;
e. a child.

Or indeed, the UT appears to suggest, an overnight carer under B13(6)

As already indicated under the heading “The application of this approach to Regulation B13” we do not agree that the language or purposes of the regulation supports the conclusion that under it a bedroom must generally be reasonably fit for full-time occupation of this nature, as opposed to short-term or irregular occupation as a visitor or overnight guest. Rather, as we have said, we consider that the language and purposes of the regulation point firmly in favour of the view that each room should be assessed by reference to occupation by any of the persons referred to in sub-paragraphs (5) and (6) of Regulation B13.

This seems to suggest that a room that would be capable of being used as a bedroom by an overnight carer (for non-full time use, etc.) would be a bedroom for the purposes of Reg B13, whether or not there was any need for an overnight carer. I’ll come back to this in my comments.

So for the rooms at issue in this appeal:

i) it can accommodate a single bed in a way that enables access to the built in cupboard and free floor space,
ii) it is of a normal height,
iii) it has a window,
iv) it is heated and ventilated in a similar way to the other rooms used as bedrooms and living rooms, and
v) albeit that it is a small room (8 ft by 8 ft) it does not have any physical features or drawbacks that prevent it being used as a bedroom for a child, an overnight carer or indeed an adult (on a full or part time basis).

On that basis, they were bedrooms and the DWP appeals allowed.

Would the UT offer up a definition, or guidelines on bedrooms and size? No. No it wouldn’t. The UT didn’t have to do so on this appeal, and as it was not a determinative issue, any findings would arguably have been obiter in any event. But that said, the UT went some distance out of its way to emphasise that ‘bedroom’ was in fact undefinable.

19. When an ordinary or familiar English word such as “bedroom” is used in a statutory test and is not defined in the legislation:
i) the test should not be re-written or paraphrased, and
ii) the ordinary or familiar word should be construed and applied in its context having regard to the underlying purposes of the legislation.

The decision of the House of Lords in Utratemp Ventures Ltd v Collins [2002] 1 AC 301 which was relied on by the Secretary of State is an example of this well established approach.

20. So a problem for courts and tribunals in giving guidance, and for fact finders in reaching and explaining their conclusions on the application of a test using ordinary or familiar English words that are not defined is that they cannot re-write the test and as Lord UpJohn explains in Customs and Excise Commissioners v Top Ten Promotions [1969] 1 WLR 1163, at 1171 they must adopt the following approach:
It is highly dangerous, if not impossible, to attempt to place an accurate definition upon a word in common use; you can look at examples of its many uses if you want to in the Oxford Dictionary but that does not help on definition; in fact it probably only shows that the word normally defies definition. The task of the court in construing statutory language such as that which is before your Lordships is to look at the mischief at which the Act is directed and then, in that light, to consider whether as a matter of common sense and every day usage the known, proved, admitted or properly inferred facts of the particular case bring the case within the ordinary meaning of the words used by Parliament

21. It follows that the underlying purposes of the relevant test using such language and the context in which the language is used are important and often determinative factors to be taken into account in determining whether on the facts of a given case the relevant test is satisfied.

22. It also follows that in most cases the decision maker’s understanding of the test and approach to its application in a given case is best provided by the reasons given for the decision (e.g. albeit in an obvious case it is a bedroom because it has room for two single beds and storage, good ventilation and either it has been or could be used as room in which two people have slept or could sleep).

23. The approach reflects the old adage that it is difficult to define an “elephant” but we know one when we see one and so we can explain why we think we have seen one by describing what we have seen.

The reference to Uratemp is more than a little ironic, given the (frankly wrong) arguments about room use made in FTTs based on Uratemp [my comment here]. That said, there is a also certain frisson in this decision coming out at the very point that the Supreme Court made an utter mess of Uratemp principles in  ZH and CN, R (on the applications of) v London Boroughs of Newham & Lewisham  [2014] UKSC 62 [our report].

The reference to dictionary definitions may be a side reference to Bolton Metropolitan Borough Council v BF (HB) [2014] UKUT 48 (AAC) (an LHA decision that a living room was a bedroom). But as I said at the time, the Bolton case did not set out the dictionary definitions as closed definitions of ‘bedroom’ – rather they used the dictionary definitions to show that a living room could reasonably be considered a bedroom for the purposes of that appeal.

What this apparently leaves us with is a requirement for the decision maker – the Council benefit decision maker – to give reasons why they have decided that a room is a bedroom. So, in any contested matter – where the tenant has raised objections to a room being considered a bedroom – the decision maker should give their reasons for the decision. Simply relying on the number of bedrooms reported by the landlord will not be enough.

31. When an issue arises as to whether a particular room falls to be treated as a bedroom that could be used by any of the persons listed in Regulation B13 (5) and (6) a number of case sensitive factors will need to be considered including (a) size, configuration and overall dimensions, (b) access, (c) natural and electric lighting, (d) ventilation, and (e) privacy.

Councils will not like this. The DWP will not like this. It is a pure consequence of the regulations.

That said, the UT does not address details outside those raised in the appealed cases.

35. Issues as to whether a room of that size is a bedroom because it could be used as a bedroom for one child under 10, but not a teenager under the age of 16, are outside the ambit of this decision. However we note that paragraph 5 of bulletin U6/2013 and the Secretary of State’s submission to us seem to indicate that his view is that there must be room for a normal single bed and so if there was only room for say one cot or one young child’s bed he would not, or would not generally, regard the room as a bedroom.

A couple of other issues arise, mostly on the weaker arguments raised by some around current use.

27.In our view, when read as a whole Regulation B13 provides that in determining whether there is under occupancy that triggers a reduction in housing benefit:
i) the use or potential use of the relevant room or rooms can be by any of the people listed in sub-paragraphs (5) and (6),
ii) the impact of this is that it has to be considered whether the relevant room or rooms could be used by any of the listed people, and
iii) designation or choices made by the family as to who should occupy rooms as bedrooms or how rooms should be used is unlikely to have an impact on the application of the regulation.
(We have not expressed point (iii) in absolute terms because it was not the focus of argument in this case and without such focused argument we do not consider that it would be appropriate to say that such designation or choice can never be relevant and the qualification made in paragraph 29 below is relevant.)

28. As to the points made in paragraph 27(ii) and (iii). It is in our view clear:
i) that the underlying purpose of Regulation B13 would be undermined if this was not the case, and
ii) that purpose and that interpretation of the regulation shows that the test is focused on the availability of rooms that could be used as bedrooms by any of the listed people and thus essentially the assessment of a property when vacant; rather than how it is actually being used from time to time. It seems to us that this is so because a part of the underlying purpose must be to free up homes that are being under occupied so that they can be used by others with an entitlement to the number of bedrooms in the property or to encourage the existing occupiers to make under occupied bedrooms available to others.

29. However, this does not mean that issues concerning the designation of rooms as between living room(s), kitchen,bathroom, lavatory, storeroom and bedroom do not arise. For example, issues could arise (a) as to what should be designated as the living /dining areas of a property, and (b) the impact of a conversion of room to a bathroom or wet room (which could normally only be done lawfully with the consent of the landlord).

So, change of use with physical alteration, particularly with landlord’s consent or participation, is likely to be a significant factor. This could, perhaps, be read in the same terms as put by some FTTs – a change of use required for the tenant’s occupation of the property. But the tenant having simply decided to use the room in a different way? That isn’t going anywhere.


This is not a well reasoned decision – or at the very least, the reasoning is poorly expressed. But that said, some elements of the decision seem clear, and probably hard to appeal further to the court of appeal.

The most obvious point is that any appeal based solely on the Housing Act 1985 Part X room size figures will not succeed. As far as this UT decision goes, there is no basis to appeal a bedroom tax decision on the basis of a room size of below 50 sq ft, let alone 70 sq ft, alone. The reasons the UT gives for this decision are not a surprise. I have pointed to them before as being the clear counter-argument to any argument based on HA 1985 Part X (or indeed any other guidance or regulation that mentions room size).

Size is relevant though, as one of a number of factors that may indicate that a room is not capable of use as a bedroom (along with lighting, window, ventilation, height). The suggestion is that a floor space of less than 50 sq ft might require the decision maker to give reasons as to why it was taken to be a bedroom. I’ll come back to this below.

Current use of a room is, by and large, not determinative of whether a room is a bedroom or not. The question being whether the room is capable of use as a bedroom. However, current use where it has involved adaptation or conversion of the room, and/or may be considered to be necessary for the tenant’s household’s continued occupation of the property, will be relevant and will affect whether a room is capable of being a bedroom.

While the UT discards any suggestion that a room must be capable of being used as a bedroom by an adult or two children, its own view is confused. It is arguably reasonable to say that a room is a bedroom if capable of use by any of those on the B13(5) list (which actually boils down to a minimum of (e) A child ). The UT declines to consider whether there are age related size requirements for children under 10 and then children under 16. But there is a limit of an adult single bed – not a cot or child’s bed – which the UT draws from DWP Guidance in bulletin U6/2013.

Issues as to whether a room of that size is a bedroom because it could be used as a bedroom for one child under 10, but not a teenager under the age of 16, are outside the ambit of this decision. However we note that paragraph 5 of bulletin U6/2013 and the Secretary of State’s submission to us seem to indicate that his view is that there must be room for a normal single bed and so if there was only room for say one cot or one young child’s bed he would not, or would not generally, regard the room as a bedroom.

However, the UT makes a whole fresh mess when it adds in B13(6):

i) the use or potential use of the relevant room or rooms can be by any of the people listed in sub-paragraphs (5) and (6),

ii) the impact of this is that it has to be considered whether the relevant room or rooms could be used by any of the listed people, […]

What I think the UT meant by this was whether a room was suitable for occupation by an overnight carer, being someone not staying every night, or permanently. At para 60, the UT says

we do not agree that the language or purposes of the regulation supports the conclusion that under it a bedroom must generally be reasonably fit for full-time occupation of this nature, as opposed to short-term or irregular occupation as a visitor or overnight guest.

But B13(6) doesn’t give a list of persons like B13(5), instead it gives a short list of people who require an additional bedroom because they require overnight care. It doesn’t actually mention overnight carers at all. Even if we take the sense that I presume the UT intended, that ‘an overnight carer’ should be added to the B13(5) list when considering whether a room is suitable for occupation by any of the persons mentioned in Reg B13, does this mean in any situation and for households that don’t require any overnight care? It would seem so, but B13(6) wouldn’t support such a conclusion.

Further, as the UT decision in Bolton MBC v BF makes clear, any room is capable of being a bedroom if an overnight carer uses it temporarily to sleep in (in that instance, the living room).  The UT in this case hopelessly muddies the waters by including B13(6) in the way that it does. It is also wholly unclear what difference the UT might perceive between a room ‘reasonably fit for full time occupation’ and one fit for ‘short-term or irregular occupation’ and how this would translate into physical characteristics of the room, This is a mess and one that the UT has necessarily created.

But the judgment presents plenty of problems for benefit authorities and the DWP as well as tenants.

The UT acknowledges that the Benefit Authority can start with the number of bedrooms described by the landlord on letting:

a starting point for determining how the property could be used and thus the number of bedrooms it contains is its description by the original and later landlords when letting it.

(Note, this is the original let, not any later report by the landlord). But this is just a starting point. If there is doubt or dispute over whether a room is properly a bedroom, the decision maker cannot simply rely on the landlord’s report of the number of bedrooms originally let.

But we do not agree that this description is more than a starting point because if, for example, in the application of Regulation B13 that categorisation is disputed and found to be incorrect it should be reclassified for that purpose and, in many cases, for the purposes of setting the rent to be paid under the tenancy agreement.

What is more, the decision maker will have to give reasons for deciding whether a room is a bedroom in all but the must obvious cases.

in most cases the decision maker’s understanding of the test and approach to its application in a given case is best provided by the reasons given for the decision (e.g. albeit in an obvious case it is a bedroom because it has room for two single beds and storage, good ventilation and either it has been or could be used as room in which two people have slept or could sleep).

Does this mean the Benefit Authority would have to investigate any disputed categorisations? I think it does. If the landlord’s description at letting is disputed, the Benefit Authority can’t simply rely on the landlord’s description, but has to come to its own decision. Clearly this has to involve investigating any grounds of dispute, so that the decision maker can give reasons for the decision. Cue HB decision makers with measuring tapes, preparing themselves to describe the elephant.

Would a decision-maker’s failure to give reasons, or adequate reasons, for deciding on a disputed room be a ground of appeal? Quite possibly so.

It will be interesting to see if this case is now appealed further. It would be appealed to a a Scottish Court, not the Court of Appeal, I think, despite the Upper Tribunal being a national court. I am not at all clear on what the significance of a Scottish appeal decision would be for tribunals in England and Wales. This could be a fresh layer of muddle.


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.


  1. Peter Barker

    One way of reading the reference to Reg B13(5) and (6) is that the UT is simply favouring the “vacant possession” approach over the “current use” approach. But as you say, the persons actually “listed” in Reg B13(6) are not the overnight carer and foster child themselves – the “relevant person” named in paragraph (6) is the claimant (or joint tenant) who needs overnight care or who is a foster carer and who therefore will use the putative bedroom full time. So why refer to para (6) at all, since the same people are already “listed” in para (5) as a single person or member of a couple in the normal way? Can the UT really have intended to say something like: “even if this room could not realistically be used as a permanent bedroom by a family with one more member than the claimant’s family, there might be someone out there who could just about use it as a part-time bedroom for an overnight carer, in which case this claimant has too many bedrooms”.

    Actually I think these comments were probably influenced by the particular facts of James Nelson’s case: although his son (the overnight carer) did not use the disputed bedroom, he could have done therefore it was a bedroom. So perhaps the correct way to read para 27(i) of the decision is “the people listed in paragraphs (5) and, where relevant, (6)”. Take the following two hypothetical cases. In both cases there are two undisputed pukka bedrooms and one slightly pokey space, a bit like the one I am sitting in now: six foot square, normal height, normal window and ventilation, normal door, but by-passed by the central heating system.

    Case 1 is a couple with one child. It is doubtful whether this tiny space is suitable for use as someone’s permanent bedroom and so the Council might conclude that it isn’t a bedroom.
    Case 2 is a single person who requires overnight care. The carer uses the second main bedroom, as you would if no-one else needs it. But if there was a child in this household as well, the overnight carer could probably make do with the small room. So the claimant is under-occupying compared with that notional claimant whos has a child and whose circumstances are otherwise identical. It’s the James Nelson scenario. Is that what the UT was trying to say in para 27? Only factopr in para (6) where it applies to the current claimant?

    • Giles Peaker

      That would be an interpretation, and one that would make sense. Alas, it isn’t what the UT said.

  2. Debbie

    Muddled and messy is an understatement!!

    So, we have councils who are going to HAVE to go out and measure rooms and describe the room?? as in, what a bedroom is??

    IF it’s under 50sq feet and only suitable for a cot or young persons bed.
    Will that be exempt??

    Then, we have……………… Room for 2 single beds and storage. 2 people have slept or could sleep???

    28 (ii) Bedrooms available to others?? Could that be a Lodger??
    Would room size factor in, it not being big enough for a Lodger??
    If, you ‘twisted’ that around??

    What about Tenancies that Don’t state the number of bedrooms in a property??
    There are some, that don’t.

    Current use of room……. So, if it is used for storage of disabled equipment. You can’t use that at appeal??

    Only, if say, change of use for, say, a through floor lift. As, an example.

    Where does that leave us for the appeal route??
    I am, completely,!!

    What happens to all the stayed cases on room size/room use??
    Will they automatically be refused/denied??

    What about all the tribunal wins on room size/room use?
    Can the Councils, now appeal them?? Or, the DWP. Or, will they stand?

    On the surface of it, it appears the only appeal that will succeed. Would be a room needed for an overnight carer.

    What advice do we give to people, who need to appeal the BT??

    • Giles Peaker


      The best I can make of it is:

      Whether a room can be a properly considered a bedroom is a question of degree. There are no set ‘minimum’ sizes for a bedroom, however it is obviously possible for a room to be too small to be reasonably considered as bedroom (The DWP version of a room which was the same sizes as a single bed, with a door that opened outwards would not be a bedroom). Other factors to consider are whether there is ventilation, natural lighting (a window etc), and a sufficient degree of privacy.

      The room does not have to be big enough for an adult. However, following the DWP circular, it should be big enough for an adult single bed. (The ‘big enough for a lodger’ point is dead, I’m afraid).

      If there is a dispute about whether a room can be considered a bedroom, then the Benefit Authority has to decide and give reasons why it is (or isn’t) a bedroom. They can’t simply rely on the information from the landlord. This may, I would guess, involve inspection – or it may mean asking for further information and/or photos and so on from the tenant.

      The reasons don’t have to be detailed where it is an obvious case (like a room big enough for two beds which has previously been used as a bedroom).

      If a room has previously been used as a bedroom, it is very likely to be a bedroom.

      The tenant’s current use is only likely to be a factor if the room has been adapted for another purpose in some way (usually with the landlord’s consent – like the lift), or if the changed use is reasonably required for the tenant to occupy the property.

      If the tenancy agreement doesn’t state the number of rooms, then I guess the starting point would be the landlord’s report on number of rooms. But again, this is just the starting point.

      Stayed cases that are purely on the room size/Housing Act 1985 figures may be dismissed, and very likely will be if over 50 sq ft and below 70 sq ft. But that will be an issue for each FTT, I’m afraid. Clearly some of those appeals will still involve issues that will require investigation.

      Previous wins will stand unless an appeal was filed in time, I’d guess. But will not be relevant for future benefit decisions.

  3. Debbie

    Hi Giles, Thank you for your reply.

    So, basically, a room under 50 sq ft. may win at appeal.
    but, using other tribunal wins on the same grounds will have no relevance.

    I guess each case that go’s before a Tribunal Judge could be open to their interpretation, of this decision.

    It certainly does not, do us ‘any favours’.

    It’s a shame they did not consider room use. As in, a place to keep disabled equipment. Which does affect many.

    IF, all stayed cases are to be dismissed. That will cause, extreme grief. Distress and stress.
    With people being liable for arrears and on going payment, off the BT.
    It’s back to square one.
    And, the only route open to them. To apply for a DHP. which is fraught with issues.

    • Giles Peaker

      Room use wasn’t much of an issue in these cases – very weak arguments on use, which were dismissed.

      Something like storage of disability related equipment might work, but would have to show that it was necessary to store the equipment in that room, not just convenient to do so.

      What happens to the stayed cases is really going to depend on the content of those cases, what the appeals were about. My guess is that if they were just on the 70 sq ft argument, they will quite possibly be dismissed. Otherwise people will have to look at other evidence about the nature of the room, and quickly.

  4. joehalewood

    The UT decision is perverse and is much much more than a mess. I go further than Giles does in his closing paragraphs and say that every original bedroom tax decision made was unlawful as (a) they contained official errors and errors of law; (b) these being that they failed to define bedroom when making original decisions; (c) they asserted the number of bedrooms was ‘up to the landlord’ which this UT judgment says is a legal fiction and (d) that when the original decision contains official errors / errors of law there is no time limit to request the LA to reconsider and review those decisions.

    Upshot – all 471,887 bedroom tax affected households can request their council to go back and reconsider / review the original 2013 decisions under Part 2 (4)(2)(a) of the HB Appeals & Decisions Regulations 2001.

    Upshot – one God Almighty mess!

    The no time limit on reviews when they contained error of law was stated to me a few months back by a very knowledgeable former HB appeals officer and looking at the reg above suggests there is some strong merit in that view.

    If there is merit, which it appears to have, then the UT decision is more than an elephant’s arse as I described it and will open up highly costly floodgates for all LAs and pandemonium will ensue. A mess just doesn’t cut it in terms of description.

    One other quick point is how FtT judges will react to the view that the Fife SoRs from Judge Collins were not full ones. I have seen well over a hundred SoRs and many if not most are less detailed than the Collins ones which suggests that every FtT judge will need to draft a tome as to why they decided the way they did. They will recoil in horror at this and especially as the UT judgment puts the onus on them to explain in inordinate levels of detail what a bedroom is or is not by virtue of size or usage and creates far more work for them.

    This far too clever by half attempt from the UT has succeeded in alienating the tenant, the council and the tribunal judge…just a pity it wasn’t drafted in iambic pentameter eh!

    • Giles Peaker

      I’m really not sure of that. There is nothing to say that the original decision contains an error of law just if it was based on the landlord’s reported bedrooms. If the tenant didn’t dispute it, then there is no error of law.

      But, if the number of bedrooms was disputed by the tenant and all the Benefit Authority did was re-state the landlord’s report, or say that they could rely on that wholly, then I agree that that could potentially be an error of law. It all depends on the grounds on which the tenant disputed whether the room was a bedroom. It is for the Benefit Authority to decide on the number of bedrooms, and where there is a dispute, that means getting enough information to reach a decision and (as the UT now says) giving reasons for the decision. Sometimes, they won’t need very much information to decide. Other times, depending on the nature of the dispute, they may need a lot more.

      I don’t think that even this UT judgment means that the Benefit Authority have to attend to inspect/measure up. They would have to investigate to have enough information to reach their decision as to whether it was a bedroom. That might simply mean asking for more information from the tenant (particularly as the precise room size is no longer an issue).

      The UT didn’t say that the reason from the Fife FTTs weren’t full. They said they weren’t clear. And I can see a little of what they mean – there is no simple statement of why the Fife FTT decided the rooms were too small to be a bedroom – on exactly what basis that decision was made. That is not an unusual appeal finding. There is no requirement for great or greater length, just clarity in reasoning and the FTTs would understand it that way. (Ironic coming from this UT, I agree).

  5. Debbie

    I’m even more confused now!!
    Facebook is going to go mental, with, questions, questions, on what do we do now?
    Where do we go from here??

  6. joehalewood

    Many LAs ‘palmed off’ tenants appealing or asking for review by saying its up to landlord / we dont have to define / go back ask landlord first. Now they can’t and, significantly, the onus of proof shifts to them away from the tenant.

    The tenant also need not say disputed room is xx sq/ft, rather the room is not of a size to fit in a bed, wardrobe, chest of drawers etc and is an irregular shape and/or has stair bulkhead in room or whatever. Even if LA says measure it and provide drawing I fail to see that LAs would accept and hence would have to come out and inspect.

    So many LAs also responded to the template letter I drafted and said they don’t have to have a policy and its up to landlord etc, so have stated these errors in writing too, and a number even say we will not even review or reconsider unless the landlord reclassifies. Many of those I have published.

    Interesting times ahead and I suspect lots more work and cost to LAs and social landlords should take heart too as they have been at pains to convince tenants they were not complicit in decision and they will now say its the LAs fault all along. Those landlords that have backed tenants to appeal before this will score some major brownie points too and I suspect many more landlords will now support tenants to appeal.

    Finally, if nothing else, IDS will not be gloating over this though I wouldn’t rule out a new further Capt Mainwaring HB circular!!

  7. Peter Barker

    The problem with revision on the official error ground is that it is caught by a set of provisions known as “anti-test case rules”. They are:

    – para 18 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000
    – Regs 7(2)(b) and 8(8) of the HB & CTB Decisions and Appeals Regs 2001
    – the definition of “official error” in Reg 1 of the 2001 Regs

    The combined effect of these provisions is that the Council may make a superseding decision from the date of the UT decision if it followed the line that bedrooms are decided by the landlord. That approach is not correct, as the UT has shown, but many authorities and apparently DWP also thought it was correct until the UT pronounced on it. So any existing decisions cannot be changed in respect of any period before the decision was handed down.

    However, if a case was already in the appeal system (whether formally stayed or not), the anti-test case rule does not appy to the Tribunal as Commissioner Jacobs noted in CH/553/2006. So Tribunals will be able to apply the law as stated by the UT from the date of the original LA decision.

    Of course there won’t be any point making a superseding decision if the outcome isn’t any different. I would guess that in the majority of cases the conclusion after a proper examination of all the facts would be that the room is indeed a bedroom, just as the landlord described it. So ultimately most claimants will not be any better off.

    There is a fresh right to appeal to the FtT against any new superseding decision; and according to the 2003 case Neil Wood v the Secretary of State for W&P there is arguably a right to appeal against a refusal to supersede on an application by the claimant (that case is concerned with the parallel adjudication regime in the Social Security Act 1998, but I think the same principles apply to HB decisions under the 2000 Act). But if the room is a bedroom according to the narrowed down criteria now established by the UT, none of this does anything except prolong the process.

  8. jayson carmichael

    wat happens ta folk whove won first tier tribunals? Are there wins taken off em widdout UT hearin?

    • Giles Peaker

      I’d guess it depends whether an appeal to the UT was put in on time by Council/DWP. If an appeal wasn’t put in, the decision should stand, I think.

  9. joehalewood

    Peter “I would guess that in the majority of cases the conclusion after a proper examination of all the facts would be that the room is indeed a bedroom…”

    Care to shed any light on “proper examination of all the facts?”

    What is a proper examination? It must be a new procedure for each and every LA who hitherto have merely accepted the landlords word. and this new procedures needs also to determine what facts are to be considered and what facts are not to be considered too.

    Are we in fact any further down the line as to what is and is not a bedroom by virtue of fact? I think not and we will therefore have 340+ subjective and different LA interpretations of what constitutes a bedroom.

    The same new procedure will presumably need to be in place for the new 2015 decisions all of which will involve changes at all LAs in how they DO consider all the facts

  10. Debbie

    I would love to be ‘a fly on the wall’ in all LA’s Housing Benefit departments.
    They are going to be running around like headless chickens!!
    And, I look forward to the Guidance Bulletin they will all be sent by the DWP.
    Advising them what to do!!

  11. jayson carmichael

    Told Upper Tribunal cant possibly live wi Bedroom Tax , FT Judge and Council seem ta agree wi me

    • jayson carmichael

      why would they put me ta test if they say ya get DHP anyway?

  12. Ruth Knox

    There are some positives out of this:
    (a) LA cannot just use the landlord’s definition but has to justify the case further
    (b) Size is a “warning bell”/factor. 64 square feet (plus a walk-in cupboard?) comes very near the 70 square feet figure. I would imagine that a room between 50 and 60 would have a much higher chance, although would have to be justified
    (c ) The UT has provided a number of factors that have to be taken into account and these are not exclusive. For instance, they don’t mention gas safety, but I don’t think a room with a gas fire (as opposed to a sealed boiler) could ever be considered suitable, and there could well be other factors we have not thought of .
    (d) Although usage based solely on how the tenant has opted to use a room is probably dead, usage where it can be argued that the room has to be used in this way and no other room could be so used, seems still strong to me. For instance the early FTT case in Oldham, where no other room could be used as a dining room, and of course the ones to do with equipment for disability. What about studies for children? Leaving aside Human Rights arguments, there must be a “reasonable” argument for a teenage child having somewhere s/he can use a computer, revise etc. Living rooms and bedrooms not always suitable.
    So all of these are positive aspects of this decision. .

    On the room size argument, I note there is no reference to the Health and Safety legislation (2004 in UK, not sure what in Scotland). I think there is still an argument to be had here, as they do not have the same approach as the 1985 Act (where living rooms etc are available as sleeping accommodation). Whilst it could be argued that the legislation cannot be “read across” surely it would be perverse if there were a situation where ANY other number or combination of people occupying the dwelling would cause it to be overcrowded and therefore defined as a Category 1 or 2 hazard if HHSRS were applied? Accepted we have to look at the intention of the Regulations, It cannot have been the intention to create a health and safety hazard, or cause the Social landlord to breach criminal law? Would appreciate others’ take on the application of the 2004 Act and subsequent Health and Safety regs on this.

    • Giles Peaker


      I think the LA can ‘just use the landlord’s definition’, at least where there is no dispute raised.

      Useage – I think we are looking at the formula from one of the Fife decisions, also used elsewhere – the use has to be reasonably necessary for T’s continued occupation of the property. I don’t think a study for a child is going to cut it.

      Housing Act 2004 and HHSRS – a property with a disputed bedroom is almost never going to be overcrowded under either HA 1985 or the HHSRS versions. They just aren’t.

  13. Paul Stockton

    Giles – this is just a comment on the last paragraph of your commentary ie what would be the impact in England and Wales if this Scottish case went on appeal? The UT decision now binds the FtT throughout GB. Appeal in this case lies to the Court of Session in Edinburgh. That Court’s decision cannot bind tribunals, either FtT or UT, in England and Wales. Only a Court of Appeal or a Supreme Court decision can do that. However, in practice the Court of Appeal and the Court of Session respect each other’s decisions and it is very rare for them to differ in interpretation of GB-wide legislation. So looking at the possible scenarios, if the Court of Session upholds the UT decision there is no issue. If they uphold the UT but on a different basis, or if they allow the tenant’s appeal, the Court of Session reasoning does not strictly speaking bind tribunals in England and Wales but in practice the tribunals are likely to follow it as the best authority available unless and until the Court of Appeal tells them otherwise. If the two appellate courts disagree the matter would almost certainly go to the Supreme Court.

  14. jayson carmichael

    Letter that i sent to Upper Tribunal : “Feeling very low now but keeping head above water but the bad news is that I think I will be at suicidal stage if or when govt/DWP MANAGES to impose Bedroom Tax back on us next year. . We were supposed to hear about the Supreme Court making a decision on a proper big hearing at the end of November, NOTHING, there were TWO OVERWHELMING commons votes that would have exempted us and they have gone nowhere. I feel that if the injustice of the Bedroom Tax is heaped upon me next year after fighting fo over TWO years I will be at a stage who knows, may be at that point when enough is enough. There will most likely be a 2 year accumulated bill and we don’t get dhp, thought I better let you know my feelings on issue at this stage with no hearing planned as yet.And no tribunal organised. At this stage I can cope, but I don’t know if that will be the case when writing on the wall becomes apparent. I don’t blame anyone but DWP.”

  15. Debbie

    Hi Giles.
    Can you help please. With some advice.
    I am a complete novice regarding possession.
    I believe there are ground 8 and 10??
    I don’t know what the difference is?

    What is the whole legal process?
    And what can tenants do?

    This, directly relates to the Bedroom Tax.
    As their arrears, are only due to not being able to afford to pay the BT.

    What if the tenant is Disabled? And their property has been adapted for their own disability needs?

    If they are evicted due to the BT. Does their Council, have a duty to rehouse them, as a vulnerable person?? Do their have a duty of care.

    What about if they are not Disabled. And are evicted due to Bedroom Tax arrears?
    As they will be homeless.
    Does their LA have a duty to re-home them.
    As it’s not intentional If it’s because they can’t afford to pay.

    We have desperate people who are being threatened by their HA’s and LA’s
    With possession. With arrears of just £300.

    And, they have been refused a DHP.
    Which, crucially, adds to them being threatened with possession orders.

    Can you point us in the right direction please?

    Or, even do a blog about it??

    Thank you.

    • Giles Peaker


      If notices seeking possession have been served, there is legal aid for advice – and representation if proceedings are issued. Find local housing solicitors/law centres.

      The grounds you refer to only apply to assured (housing association) tenancies. Ground 8 is a mandatory ground – if the arrears are over 8 weeks at the date of service of the notice seeking possession and then also 8 weeks in arrears at the hearing of the possession claim, the court MUST make a possession order (subject to any human rights defence). Grounds 10 and 11 are discretionary grounds, meaning that the court can consider whether it is reasonable in the circumstances to make a possession order.

      For secure (council) tenancies, the court will decide if it is reasonable to make a possession order based on the arrears. For low arrears of a few hundred pounds, an outright possession order is unlikely, but of course it will be hard to come up with any plan for instalments towards the arrears.

      It will technically make little odds that the property is disabled adapted, but the court might consider it in deciding whether a possession order is reasonable.

      People should not be intentionally homeless if evicted, so long as they can show the shortfall was genuinely unaffordable. But only those in priority need are likely to be helped (e.g. with children, or disabled).

  16. Debbie

    Thank you for taking the time to reply Giles.
    That’s very helpful.

    It’s an absolute nightmare for people who are affected in this way.

    Of course, they are in an impossible situation, with regard to ‘making a payment plan’. Catch 22. IF you had the money to pay the BT. You would not be in arrears!!

    What sense would it make to try and evict a Disabled person. Who’s home has been adapted for them. Only, to have to re-house them anyway!!

    There is continued, NO , support for tenants.

    There is also another consideration for Disabled people, who have had adaptations done. By Grant. In the small print, it states that if you move within 5 years of the adaptation being done. You MAY have to repay the grant!!
    What with?? Shirt buttons!!

  17. david

    So, to sugguest or say the size standards in the 1985 Housing Act dont apply and is not the flip side of overcrowding etc, well is that not like saying a room is or could be a bedroom if vacant but can’t be and or would be overcrowded if used as such as the DWP and UTT suggests such a room can be used and would then breach the Housing Act?.

    In other words a bedroom if vacant and the 1985 Housing Act doesn’t apply. But not a bedroom if used as such and the 1985 Housing Act would then apply and the room itself legally overcrowded and a breach of that very act?.

    They can’t have it both ways the DWP, to say there is no minimal size if a rooms vacant but there is if occupied. And if there is no minimal room size as the DWP claim then on what basis and formula do the DWP use and claim when quoting these non existent in such numbers overcrowded households in the hundreds of thousands?. Without actual size standards the DWP then can’t claim their are overcrowding situations either!.

    • Giles Peaker

      I think you are suggesting that if a bedroom was used as a bedroom, the property would be over occupied under HA 1985. This would depend on the facts – but remember the HA 1985 overcrowding assessment includes considering all rooms as bedrooms (except bathroom/WC/kitchen). So in the majority of cases, I doubt that using a small room as a bedroom would result in statutory overcrowding under the 1985 Act provisions.

      • david

        Thanks for the reply, but what interests me related to this, is that the Bedroom Tax is not really or at all about the other rooms in home but a particular, and just a particular room. And its just and only just a particular room itself that is used to determine Bedroom Tax liability in the first place and not the other rooms within the home that (according to the DWP) could be used as a bedroom.

        An example of this is if a room itself is well below 70sq ft but perhaps a little over 50sq ft then the room itself can’t realistically or practically be used as a bedroom. A tenant might then appeal, as many have, over the size of the room along with other reasons to appeal such a room and might directly or indirectly win on that basis. But the DWP’s stance, along with some tribunal (either FTT or UTT) judges, then moves to the DWP view and opinion that other rooms could and should then be used to determine Bedroom Tax liability if a particular room itself is accepted can’t realistically be used as a bedroom. And that’s often how some tribunal judges then seem to decide on cases. This is despite the other rooms not being anything to do in what determines Bedroom Tax liability.

        The point I’m trying to get at here is that if appealed, a particular small sized room itself can often get accepted as not a bedroom for that particular room, but the DWP then try to insist and get tribunals to accept that the Bedroom Tax liability then moves to the living\dining room as that could be a bedroom. This is false as only stated bedrooms on a tenancy is used to determine Bedroom Tax liability, not and never that I can see any other rooms such as a lounge or dining room.

        So why is Bedroom Tax liability then not determined in the same light as if the property had a bedroom less like all other properties that does have an actual bedroom less?. If a claimed 3 bedroom property (where the tenants\family only require 2 bedrooms) has an appeal against 1 of those bedrooms and wins on the particular room itself not being a bedroom. Then how on earth can the living\dining room on that property be used for Bedroom Tax liability purposes, yet the next or all other properties that always had 2 bedrooms (same tenant\family makeup also requiring 2 bedrooms) to start with not be liable for the Bedroom Tax on there other rooms, even if they have 2 additional rooms such as a lounge and dining room?.

        Under the DWP and some tribunal judges view, you could have a situation where a property that was claimed to be 3 bedrooms with 1 downstairs room winning an appeal on the third bedroom is then liable for Bedroom Tax on that single downstairs room as it “could” be a bedroom. Yet another 2 bedroom property with 2 downstairs rooms is not liable despite that both downstairs rooms “could” also be used as a bedroom!.

        Where a room is of a smaller size as stated within the 1985 Housing Act (and some more recent regulation that elludes me at the moment) required as a minimum size to accommodate a person then whilst the property itself might not be overcrowded, that and a particular room itself certainly would be overcrowded. The Bedroom Tax is not about the other rooms (which always puzzles me why other rooms are directly brought into play) and does not the 1985 Housing Act apply to individual rooms as it makes out?.

        • Giles Peaker

          I have never heard of the DWP or LA succeeding in arguing that if the ‘bedroom’ has been found not to be a bedroom, then the living room should be considered as a bedroom. I know it was argued in one or two FTTs but it failed. And it failed in the Upper Tribunal too, I believe (it was a brief paragraph, because clearly a nonsense argument).

          If it is a room that has been used as a bedroom, or was classed as such by the landlord at the start of the tenancy, then the fact that it is currently used as a dining room would not make any difference to it being a bedroom, in general. But equally, the LA/DWP don’t get to say that a room treated by all – including the landlord at the start of the tenancy – as a living room should be considered to be a bedroom.

          So I’m still puzzled by what you are talking about. That is a non-starter of an argument for the LA/DWP.

          As for the Housing Act 1985 – it doesn’t say any specific room would be overcrowded, whatever the size. It is an assessment of available space over the whole property. And, as the UT has now decided, does not apply simply to means that a room of less than 50 sq ft, or less than 70 sq ft, cannot be a bedroom for that fact alone.

  18. joehalewood

    Giles, re overcrowding / under occupation flipside.

    In May 2014 I took a case of an alleged 3 bed 5 person property in Wirral, occupiers Mother and Daughter (20) joint tenants. Council imposed 14% deduction.

    Bedroom 1 78 sq’ft
    Bedroom(?) 2 was 44 sq/ft
    Bedroom(?) 3 was 36 sq /ft

    Legally I would argue (and did much to Tribunal judges horror) that the property was overcrowded not under occupied (Note Living Room was not even a room but a space from street through front door into ‘space’ which also had open plan staircase in and a gas fire too)

    Bedroom 1 is a 1 person size, ie not a double
    (Bed?)rooms 2 & 3 under 50 square feet hence cannot be counted as bedrooms in overcrowding regs (and note UT says ALL relevant circumstances council decision makers need to consider) and no Living Room (as not even a room and had gas fire)

    The reality is the property was and is a 1 bed 1 person property.

    The judge ruled 36 sq/ft not a bedroom out of pragmatism but realised that the correct description and accurate one was a 1 bed 1 person property. Maybe I should be asking the Daughter who did not appeal to launch an appeal citing and using the space and room standards of the 1985 Act?


    • Giles Peaker

      Not statutorily overcrowded by room standard – HA 1985 s.325(1)

      (1)The room standard is contravened when the number of persons sleeping in a dwelling and the number of rooms available as sleeping accommodation is such that two persons of opposite sexes who are not living together as husband and wife must sleep in the same room.

      But if living room unusable as sleeping area by reason of gas fire, then yes, stat overcrowded on the space standard under s.326. So, technically probably homeless, as arguably not reasonable for the household to continue to occupy.

      As a conjunction of facts, very unusual, I’d say.

      But chances of an appeal by the daughter on room size… Well.

  19. dbird

    I’m fortunate in not having been involved much in bedroom tax cases, & I’ve not studied all the reports and comments about this case. What – quite frankly – amazes me is that there was ever any question of whether a room of 8′ x 8′ (64 sq ft) was suitable for use as a bedroom. When I was a child for many years my bedroom – shared with a sibling – was no larger than that. Many houses – eg a lot of 1930s semis – have a bedroom no larger than that, or even smaller. They are certainly usable for two children (at a pinch) or one adult.

    Unless there were very special circumstances I’m afraid my view is that I can’t see why this case even got to Tribunal – let alone succeeded at FTT.

  20. Debbie

    I’d like to ask about Tenants who have WON their FTT. On, room size and/or room use.
    But, their councils refuse to ‘accept’ the Tribunal decision. (This, before, the Fife ruling). Tenant is having to now wait to find out if their council or the DWP are going to appeal their decision.
    In the meantime, because of their ‘non-acceptance’.
    The BT is NOT being paid. So, they have arrears building up.
    WHAT, are they supposed to do????

    It’s ‘catch 22’, in that, they can’t apply for and get a DHP??
    You can’t ‘force’ a council to enforce the findings of FTT.
    So, they are in ‘limbo’.


    We are also, already hearing that some FTT’s have failed, where the Judge has ‘used’ the Fife ruling.
    As yet, have not read any Judges notes, as to how they reached that decision.


    And, what about Tribunals, that are waiting to be heard. Where they have a Tribunal date?? Is there ‘anything’ at all that can be used to ‘swing it’ in their favour???
    Health & Safety has been suggested on the use of a ‘small bedroom’.
    And, ‘hazards’ this can lead to…….

    Any help and advise, would be most appreciated please……..

  21. jayson carmichael

    Didn’t Giles say folk have still got a chance if room becomes a study or some other reasons. Read some of the Nearly Legal blog.

    • Debbie

      “But the Tenant having simply decided to use the room in a different way?
      That is not going anywhere”

  22. jayson carmichael

    I hope people do go all way with this issue of room size and even eventually to the court of Appeal. Room size /usage has never got ta BIGGER COURTS like disabilty. The UT ruling in Fife was in Scotland , where everyone gets DHP so its took sting out of policy there, so many cases here that they should hopefully end up in bigger court just like ours did on disability discrimination did.. So I hope folk do both contest their Upper Tribunals when DWP or council take them there and ALSO take it further IF defeated to Court of Appeal.

  23. Alison

    freud said we wont be defining what we mean by a bedroom. ids said if you can fit a bed in it its a bedroom. the higher justice system seems to be making sure these warped views have continued through the legal process. the fife upper tribunal case is a complete mess when it could have been clear and easy. what did they mean its difficult to describe an elephant. a young child can draw and describe an elephant. a bedroom is not impossible to describe as this farce UT said. it should be challenged for the farce it is.

  24. Ruth Knox

    Following the Scottish Upper Tribunal decision we have had a new development in Liverpool – the DWP (which was already appealing size cases to the Upper Tribunal) has now come back to the first tribunal and asked for it to be set aside. The First Tribunal has provisionally agreed to this, pending our objections, which of course we are making. In at least one case, it has substituted a decision, not even remitted for a new hearing. I wonder is this happening in other parts of the country? Ruth

  25. Peter Barker

    The set aside mechanism is supposed to be used to remedy procedural irregularities, not to correct substantive errors of law. For example, papers not sent to one of the parties, key witness absent etc.

    What the Tribunal can do is “review” its decision in the light of a party’s application to appeal to the UT – no point wheeling out the UT if the FtT agrees it went wrong in law.

    If DWP really is applying specifically for decisions to be “set aside”, in what way do they suggest the procedure went wrong?

    I have found that Tribunals are often very confused about the distinction between review, set aside, appeal and correction of accidental errors.

  26. Alison

    i have just had a thing through the door saying the dwp are going to overturn my win based on the tribunal erring in law by failing to take into account these above UT decisions. my case on the 26th nov 2014 was before these were released, how can they use it?. how is this legal? they are setting aside my win because of cases which came after my case.

  27. Alison

    reply to direction notice by judge E Rocke dated the 4th feb 2015.

    apparently judge wilson erred in law by not going forward in time to take into account decisions not yet made when he made his decision on the 26th of nov 2014 sitting at workington and apparently he should have taken account of decisions not released until the 5th dec, on the 26th nov 2014.

    on that basis this direction has been issued.

    well i counter that this direction notice is erring in law as judge wilson could not have gone forward in time to take the CSH/41/2014 and CSH/42/2014 into account when making his decision on the 26th nov 2014.

    i know the dwp has made retrospective law legislation before now to suit them but this means they can now also make future law changes.
    in criminal cases the juries must take into account future actions of the accused.

    case ref: SC164/13/01202

    i am challenging this direction. i apply to amend, set aside or suspend this direction since it is based on saying the judge erred in law by not taking into account UT decisions which were not released until nearly 2 weeks after my case. how can he have erred in law by not going forward in time and taking into account decisions not yet released? how is this legal?

    i do not agree to the tribunal setting aside the decision made on the 26th nov 2014 and saying the decision will be remade due to cases whose decisions were not released until the 5th dec 2014.

    these UT decisions should only affect cases which came AFTER them. not ones made before.

    i object to the dwp saying the tribunal erred in law by not taking into account the cases CSH/41/2014 and CSH/42/2014 when these cases came AFTER my case.

    how could the judge take them into account when the decisions were not released until the 5th December 2014.

    you are setting aside the decision and remaking it on the grounds that the judge should have taken into account UT cases which had not yet been released. how is this legal?.

    if that were the case it would mean he should also have taken all future cases and developments into account as well.

    how and why should this be the case. we do not have time machines. how is this legal?

  28. Alison

    might be helpful for anyone to know that if they had their case within the right time frame they are safe from having their win overturned.

    i was unsure myself until i researched it that…………

    Decisions of the Upper Tribunal….. !!!which have been published!!!…. “are binding on the First-Tier Tribunal in future cases”.

    thats what i was unsure of, at what date after it was handed down, the UT was binding on FTT.

    the judge which send the direction to me was making me think i was going round the twist that my judge shouldve taken the fife cases into consideration on the same day as the fife judges signed the decision which was the same day of my hearing.

    on the tribunals website these UT fife size cases were not listed as published until the 8th dec 2014.

    the decision was not received by the actual parties involved until the 5th dec so that is the very earliest anyone, apart from the 3 judges making the decision, knew of it.

    so i expect anyone who had their case heard before the 8th dec 2014 and had not had it appealed by the council or dwp is safe.

    • Giles Peaker

      Hi Alison – the decision would stand, but if a review or appeal is requested within the 21 day period after the decision, the appeal tribunal – the UT – can take ‘later’ UT decisions into account. So the first decision is only ‘safe’ if the appeal period has gone past and no appeal made.

      It would also mean that the Council will make the same decision again on the next year’s bedroom tax, because the FTT decision only applies to the year that was appealed.

  29. Alison

    i was sent a direction dated the 4th feb 2015. two and a 1/2 mts after my hearing. a month after the council had refunded me and put my HB up to the full amount.
    i thought i was finally at peace and safe from bedroom tax hassle. after fighting it since a year before it came out. 3 yrs of constantly thinking, talking and reading about it.
    that was shattered when this direction came through the door saying she had a mind to set aside the win and to remake the decision in the councils favour, making me liable for back, present and future BT since i moved here.

    why? she stated the judge at my hearing had erred in law by not considering the fife UT rulings. the dwp had told her this.

    the fife judges signed their decisions on the same day as my hearing, the 26th nov 2014.

    obviously i have sent comments, replies and protestations at this back to the liverpool tribunal.

    i have said if this stands i want to take it to UT. but hopefully this judge will back off now and leave me alone now that i have proved i know my rights and wont be bullied.

    i have reported the judge which sent me the direction to both tpcsecretariat and to the President of the Tribunal so i hope she gets in trouble for it.

    they will use any and every means to try to enforce BT on people.

    the fife UT judgements have helped them enormously.

  30. Alison

    i got the judge to back off but i am very very lucky. she is steaming mad about it. and has made comments to show this in her decision notice. but shes gone from saying she would overturn my win and remake it in the dwps favour to refusing them permission to take it to UT.

    now they will obviously try to appeal directly to UT so the saga continues.

    i wish everyone affected by bt had appealed and fought it all the way. they could not have kept hammering at the cases they did have over and over again then.

    it is just extremely lucky i had the judge i did and not the bedroom tax loving one at my tribunal.

    it is obvious since the fife UT rulings they will nitty gritty fight every case to Nth degree.

    i just hope that either labour gets in and abolishes it causing all this to end or that another case on size reaches the UT before too long and evens the ground a bit in tenants favour.

  31. Paul Ostafiehyk

    I have been following this with some interest but not scanned all of the replies. However the comment about habitual use suggests to me that the term “bedroom” and what we commonly understand is the usage of a bedroom. We use a bedroom for convalescence, when we are ill we take to our beds. Is a room that is not big enough to allow carers to tend to their charges, or allow medical treatment by a doctor, or accommodate vital medical equipment then a bedroom? I think the ordinary person on the street would say no and this should have weight in Court of Session deliberations.

  32. dbird

    Paul – this ordinary person on the street would undoubtedly say the answer to your question is Yes. The logical conclusion of your approach is that no room would be a bedroom unless it had sufficient space for a wheelchair and a hoist to lift the occupant in and out of bed. That seems to me to put a totally unrealistic limitation on the everyday meaning of the word, as does your suggestion that enough room for medical equipment (which can be very bulky) is needed..

  33. alison

    the stuff will be hitting the fan now because the upper tier has given permission for the dwp to appeal mine to upper tier even tho there was no error of law so bring it on.
    they are using the fife case against me even tho my case was decided before the fife case was signed.
    even using the fife case tho i am confidant i can win as my room is too small for what the fife case says a bedroom should be and the council have lied trying to say its bigger than it is.

  34. alison

    the law doesnt really apply to the govt. they can do what they want. the law says they can only apply to upper tier using error of law.

    yet even tho there was no error of law in my case the upper tier has given them permission anyway.

    they are using the fife case against me even tho it was only signed on the same day as my case.

    in flabbergast i asked the upper tier…..

    “once again they said there was an error of law that the tribunal failed to take into account the cases of CSH/41/2014 and CSH/42/2014 UKUT 0525 (AAC) which they claimed are binding on 1st tier tribunals even tho i have repeatedly said my case was heard on the same day the 3 judges in london were signing that case they are using.

    would you mind telling me how the judge at my tribunal could have taken that case into account when it wasnt even signed yet.

    why and why is it legal that they are going to take my case to upper tier using a case that the judge didnt take account of a case which was not yet made.

    it wasnt even made public until the 8th dec 2014 for gods sake. it wasnt even signed by the 3 judges so no one but those 3 judges knew about it when my case was heard yet the govt are allowed to take my case to upper tier on that basis

    this has got to be illegal surely

    on those grounds i ask for the case to be struck out”

    so we will see. if this goes ahead surely it means they can retrospectively re appeal all of the 1st tier tribunal wins and use the fife case to do so.



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