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.