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Not quite, Minister

Following the Upper Tribunal judgment in SSWP v David Nelson and Fife Council, SSWP v James Nelson and Fife Council [2014] UKUT 0525 (AAC) [our report], the DWP has issued a Circular – HB U6/2014

The thing is that it isn’t quite right, in some quite important ways. Text and comments below.

HB Bulletin U6/2013 provided details of two First-tier Tribunal (FtT) cases. The judge in both these cases determined that the rooms designated as bedrooms by the landlord were not to be treated as such for the purposes of the Removal of the Spare Room Subsidy (RSRS). This was because, in their opinion, the rooms in question did not satisfy the “space standards” as set out in section 137 of the Housing (Scotland) Act 1987. (Annex A sets out the facts of the two individual cases).

Well, that isn’t quite what the UT sys the FTT decided, but never mind.

The Department for Work and Pensions (DWP) appealed these decisions to the Upper Tribunal (UT). The UT hearing was on 18 September 2014 before a three judge panel.

DWP has now received a favourable outcome in relation to these UT decisions, CSH/41/14 and CSH/42/14.

Favourable is a gloriously lawyerly word. The DWP’s arguments were described as ‘absurd’, but on the other hand, the FTT decisions were overturned. So, we will allow them ‘favourable’.

The Court decision

The UT found that the “space standards” set out in the Housing (Scotland) Act are not determinative as to whether a room is a bedroom for the purposes of the RSRS policy.

True.

Their view was that the starting point for determining whether a room is a bedroom is the landlord’s description of the property. Floor space is not of itself a determinative factor and small rooms should not be precluded from being a bedroom unless they have physical features or drawbacks that prevent them from being used as a bedroom by any of the people listed in regulation B13(5) and (6) (i.e. a child, an overnight carer or an adult).

Perhaps the DWP should have cross referenced their own guidance here – as mentioned in the judgment:

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.

So there is a limit of a single adult bed, and enough room to make reasonable, practical use of that bed.

This means that it cannot be concluded a room is not a bedroom if it is less than 50 or 70 square feet without considering other factors as outlined below:

size, configuration and overall dimensions of the room
access
natural and electric lighting
ventilation
privacy.

Well no. The DWP present this as a set (and closed) list of factors. This was not what the judgment said. What the UT said was “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.”. That is ‘case sensitive factors’ – so depending on the individual circumstances of each case – and ‘including’ – so not a closed or exclusive list of factors. There could well be others. We should not forget that there is definitely a lower practical limit, as the DWP found out in argument:

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. 

Then the Circular moves on from size to use.

In addition the judgment also stated that the assessment as to whether or not a room is a bedroom should ignore what it is actually being used for by the tenant. This means that rooms capable of being a bedroom should be classed as such.

No, or not entirely so. The judgment does consider that the assessment should be “essentially the assessment of a property when vacant; rather than how it is actually being used from time to time.” But, crucially, it goes on to say

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).

In short, room use can still be an issue, particularly where it addresses use required for reasonable occupation of the property, or adapted spaces (the room with a lift in it is referenced elsewhere in the judgment).

Where there is a dispute as to whether a room is in fact a bedroom and a local authority (LA) decides that it is, it should provide the tenant with reasons for its decision. Where LAs decide that a room is not a bedroom (taking into account the factors listed at paragraph 6 above) they should consider whether it is appropriate to re-designate the tenant’s property and if so a corresponding reduction in rent should be applied.

What the DWP fail to mention is that it falls to the Benefit Authority to actually investigate a dispute, whether by requiring further evidence or indeed inspecting if necessary. And that investigation potentially involves more than the list of factors that the Circular erroneously presents as closed, above. A rather important omission.

And then this rent reduction? Eh? This is a circular to LA as Benefit Authority. They can’t do rent reductions, even if the landlord is also the LA. If it is a housing association, even more so. This bit is, frankly, quite bonkers, and has nothing to do with the DWP or Benefit Authority.

Effect of the decision

The outcome of this decision is binding on all FtT decisions and all UT decisions made by a single judge across Great Britain.

LAs should ensure that any decisions made are consistent and follow the approach outlined in this bulletin.

I think that they should not, because doing that would be to fail to follow all the requirements of the UT decision.

Granted that the judgment was both long winded and not that easy to follow, but the DWP version in this bulletin has some simple and drastic errors of understanding and interpretation. Naturally, those errors of understanding and interpretation all fall on the side of making it easier for decision makers to decide that a room is a bedroom.

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.

7 Comments

  1. joehalewood

    Last paragraph of [7] “This means that rooms capable of being a bedroom should be classed as such.”

    A living room is capable of being a bedroom and this sentence deserves more comment as it is patently false and nothing of this sort was stated in the UT ruling. The DWP is simply talking nonsense to say this is the case at all – I would say knowingly fibbing but I get told off when I speak such truths!

    Para [8] is truly bizarre. LAs can not reduce the the rent or the designation of a property and have no powers whatsoever to do either of these. Pity DWP doesn’t look at its own HB regulations to realise this but now I’m being picky obviously!!

    HB depts can ONLY reduce the HB in payment and only IF the rent level is “unreasonably” high. Yet given nationally the average rent differential between a 3 and a 2 bed is £5.97 per week and also that in all areas of the country I can find 2 bed SRS rent levels that are higher than 3 bed SRS rent levels and that’s in general needs social rent pricing and does not include affordable (sic) rent, then no benefit authority can possibly argue that.

    That is a problem with the entire policy as it assumes, as does DWP here and previous, as does the UT in their perverse ruling, that a 3 bed SRS property always has a higher rent level than a 2 bed. That while superficially seeming correct is a fallacy as it stated publicly and officially in the Statistical Data Return of the HCA – housings regulator. And yes I am talking in the same area too and not comparing a 2 bed Mayfair penthouse with a 4 bed on the Old Kent Road either. I even have details of a 2 bed SRS property having a higher rent level than a 3 bed SRS property two doors away in the same street – Two different housing associations and both social rent not affordable (sic) rent.

    The U6 of 2013 was knee jerk don’t panic Mr Mainwaring, this U6 of 2014 is sheer errant nonsense

    Reply
    • Giles Peaker

      Oops – I’d missed out the ‘rent reduction’ nonsense, despite spotting it. Added now.

      I think the ‘room capable of being a bedroom’ line is just a bad translation of 27(iii) of the Judgment. But I agree that as a freestanding sentence, it is silly.

      Reply
  2. Debbie

    We are already getting ‘feedback’ on the UT Judgement.
    People are already losing FTT. Where Judges are saying they have read and used the UT decision.

    So, I’m guessing it’s down to HOW they are interpreting the UT Judgement??
    AS yet, Have not seen any Judges notes on their decision.
    Once we see them, we will know more, on how/why they have made their decision.

    Reply
  3. Phil Cleary

    I see that HB Bulletin G2\2015 contains “clarification” of the DWP’s guidance given in Bulletin HB U6/2014.

    A lovely word, “clarification”. Apparently what the DWP meant wasn’t what they actually said. The DWP meant what YOU said all along:

    “It is not possible in a bulletin to include all aspects of an Upper Tribunal decision but further clarification has been requested on paragraphs 6 and 8 of the bulletin.
    Paragraph 6 of the bulletin lists the other factors to take into account when determining whether a room is a bedroom. It should be noted that the list of other factors to consider is not exhaustive and each case should be decided based on its own facts.
    The intention of paragraph 8 of the bulletin was to highlight to LAs that, where they decide that a room is in fact not a bedroom in a claimant’s property, it may be appropriate to consider if that property could be re-designated. It was not intended that HB decision makers themselves would re-designate the property or review the rent levels as it is recognised that this is outside their remit, especially where the landlord of the property is not the LA.”

    The DWP still haven’t got it quite right. I don’t think they managed to read to the end of your blog so they’ve missed out a few errors……

    Reply
  4. joehalewood

    There is an extremely significant piece of sophistry in the U6 not picked up above:

    “Their view was that THE starting point for determining whether a room is a bedroom is the landlord’s description of the property” (My emphasis on the U6 view)

    The UT judgment at [30] saying:

    “We agree with the Secretary of State that A starting point…”

    The UT were saying that one of the starting points (“A” as the indefinite article) is the landlords description and this is very different to the DWP U6 view of the landlords description being THE (the ONLY and definite article) starting point.

    A FtT case I won in Liverpool a year ago saw a tenancy agreement from a social landlord said nothing at all as to the number of bedrooms. So taking the erroneous DWP view expressed in the U6 it had NO starting point as their perverse view mandates the TA says the number of bedrooms

    Reply
    • Giles Peaker

      True, although frankly a relatively minor issue. Either way, there has to be something other than ‘the landlord’s description’ to change the determination – and that description is not limited to the tenancy agreement. It could just be ‘what the landlord told the benefit authority’. If both the landlord and the tenancy agreement are completely silent on the number of bedrooms, then yes, there has to be another starting point.

      Reply

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