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  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  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  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  UKSC 62 [our report].
The reference to dictionary definitions may be a side reference to Bolton Metropolitan Borough Council v BF (HB)  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.