Misc on taxes – council and bedroom

Some notes on council tax liability and bedroom tax Upper Tribunal cases.

Council tax – how do you go about setting aside and/or appealing a council tax liability order? It turns out to be far from straightforward (you might already have known this. I didn’t!). In Okon v London Borough Of Lewisham [2016] EWHC 864 (Ch) – quite astonishingly, an appeal against a making of a bankruptcy order – Mr. Robin Hollington QC addressed the issue. The bankruptcy petition was founded on a number of council tax liability orders and the efforts of Ms Okon to set aside those orders were at issue.

Ms O’s first step was to apply to the Magistrates court to set aside the orders. This was rejected by letter, with an incorrect reference to R. (on the application of Brighton & Hove City Council) v. Hamdan [2004] EWHC 1800 (Admin). Mr. Robin Hollington QC goes on to find the following:

in Hamdan the court did not find that the magistrates court itself could and should, on an application to set aside a liability order, go into the substantive merits of the case: on the contrary, it seems to me more likely that it was there being assumed (without deciding the point) that the magistrates court could and should not do so, going no further than satisfying itself that there was an arguable case on the merits before setting aside the liability order on the above ground. What the letter did not say, as I find to be the law, is that the magistrates court had no jurisdiction to go into the merits of the liability order on an application to set it aside and that the aggrieved council tax payer had also to appeal to the Valuation Tribunal if he or she wished the merits to be investigated.

This was brought home to Ms O at the hearing of a further liability order, where the Magistrates accepted Lewisham’s argument that

the court had no power to go into the substantive merits: it only had power to consider whether the Respondent had followed the correct procedure in making the application for Liability Orders and that a challenge to the merits of the liability order had to be raised by way of an appeal to the Valuation Tribunal.

So, it would appear that any challenge to the merits of a liability order must be by way of an appeal to the Valuation Tribunal, via section 16 of Local Government Finance Act 1992 and reg. 57(1) of The Council Tax (Liability for Owners) Regulations 1992.

Reg 57(1) provides that any “matter which could be the subject of an appeal under section 16 of the Act may not be raised in proceedings under this part (i.e. Part VI: Enforcement which includes reg. 34 (Application for liability order)])”

The court held that reg. 57(1) actually barred a person from rising substantive merit issues before the Magistrates on proceedings for a domestic council tax liability order. Any challenge to a liability order on the issue of merits, rather than issues of procedural correctness, is via appeal to the Valuation Tribunal. Magistrates Courts cn only deal with set aside applications on procedural error or defects.

Bedroom Tax. There have been a couple of Upper Tribunal (Admin) decisions on bedroom tax cases.

The first one is  2016 UKUT 164 AAC from Feb 2016, but just added.

This was a ‘room size’ case, where the First Tier Tribunal had found:

the room in question had a square footage of about 63 sq. ft. with a sloping ceiling that reduced its usable space considerably; that it was used by the claimant’s son (who was born in 1995) as a bedroom until about 2010, but that such use was unsatisfactory since the son had a cabin bunk bed on a sleeping platform; and that the room in question was not a bedroom because it had been used as a store room since the claimant’s son had left.  It further found that the room in question would not qualify as a bedroom for the purposes of the provisions relating to the size of a bedroom for an adult in houses in multiple occupation.

Since then, the Upper Tribunal decision in Nelson had been given (our note here). The UT was prepared to set aside the FTT decision on the basis that it was wrongly made on the basis of Nelson – the FTT had wrongly placed emphasis on current use, wrongly only considered whether the room was adequate for an adult rather than any of those listed in paragraphs (5) and (6) of regulation B13 (including a child), and wrongly used overcrowding legislation to construe reg B13.

However, the claimant made further argument on the room size issue,

that Nelson did not take into account the provisions of the (English) Housing Act 2004, the Housing Health and Safety Rating System established under that Act or the guidance given by LACORS (Local Authorities Coordinators of Regulatory Services) insofar as they dealt with space and overcrowding, and hence, that Nelson should not be followed.

The UT found that there was no mention of specific room size in HA 2004 or the operating guidance for HHSRS and overcrowding decisions under this could only be on actual overcrowding.  The LACORS guidance was just that – guidance on best practice, with no statutory effect. Lastly provisions relating to HMOs have no effect where the property is not an HMO.

The FTT decision was overturned. But rather than make its own decision, the UT remitted the case to the FTT for a fresh decision, because:

I am concerned, however, especially given the room’s sloping ceiling, that all the factors referred to in paragraph 31 of Nelson may not have been properly considered.  I therefore remit this case to a differently constituted tribunal for determination:  it should consider those factors, bearing in mind that the room should be capable of accommodating a single adult bed, a bedside table and somewhere to store clothes (see paragraph 33 of Nelson), as well as providing space for dressing and undressing.

This is thoroughly in accordance with Nelson.

Despite the matter being remitted to the FTT for a fresh decision, it appears that the claimant, who is in person, is seeking permission to appeal to the court of appeal.

The broader points to take from this decision are twofold. Firstly that no extra-statutory or statutory prescriptions on bedroom sizes will have any purchase on reg B13 meaning of bedroom, unless they directly (and nationally) prescribe a minimum bedroom size. None do to my knowledge.

Secondly, the Nelson principles of the basic requirements for identifying an elephant (sorry, bedroom) are re-stated here. The room has to be physically capable of reasonable use as a bedroom. There is no set minimum size, per se, though obviously some rooms will be too small. It is all a question of the facts of that room. Many councils and social landlords don’t appear to have grasped that yet…

Meanwhile, Joe Halewood  and I may disagree from time to time on the interpretation of Tribunal decisions (including the one above) but Joe has put up a photo of a part of an as yet not otherwise available Upper Tribunal decision, CH/2512/2015. Joe’s post is here and I’m happy to agree on its meaning. The relevant passage is:

As to the Appellant’s daughter and her previous use of the room, the mere fact that she did use the room for sleeping purposes does not mean that the room, on that account alone, falls to be treated as a bedroom.

This is, of course, quite right – as in the other UT decision above (and in Nelson), use of the room by the tenant’s household is not determinative of the status of the room. This cuts both ways. Actual use to sleep in doesn’t necessarily make a room a bedroom (although we will draw a veil over the UT LHA decision in CH/140/2013 – our report). Actual use to sleep in may go to whether the room is capable of being a bedroom, but it is certainly not determinative. Joe suggests that some councils are saying that it is. If they are, they are in error.

 

About Giles Peaker

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, and still is Nearly Legal on Google +.
Posted in assured-tenancy, Benefits, Benefits and care, Housing law - All, secure-tenancy and tagged , , , .

16 Comments

  1. Giles, it is healthy that we disagree and vigorously discuss and we both see different nuances in this pig’s ear (should that be elephant’s ear?) of a policy and we are full agreement that the mess was created by the government’s steadfast intent not to define ‘bedroom.’

    It is not just councils who say that a room once slept in ergo must make it a bedroom, it is a large number of FtT judges who have said this too and in the same way FtT judges only refer to 31 in Nelson but not to 22 or 33 or 64 that also describe elements such as storage of clothes and normal height not seen at 31. Indeed normal height was clearly the reason why 164 was remitted back with the sloping ceiling as the UT did not have fact on what floor space was below was could be considered normal height…that is arguably contained in Tudor Walters and set at 8ft as Tudor Walters has tables for cubic footage as well as floor space.

    In practical terms some FtT judges and some as yet unreported UT decisions are recognising that a bunk bed has the top mattress leaving just 2′ 6″ headroom from top mattress to an 8ft ceiling and or blocks out natural light (part of 64 at Nelson and again not at 31) and so may more nuances of what is and is not a bedroom appear by the week. A case last week finally happened of the 3 bed /4 person property of a couple with two teenage boys and the judge ruling that neither of the two allegedly single bedrooms were big enough to accommodate two teenage boys – in essence the property became a 1 bed/ 4 person property in housing jargon for bedroom tax purposes!

    Yet Nelson says the correct test is judging a room when empty but tribunals are governed by 1998 Social Security Act 12(8)(b) which says they shall not consider facts not obtaining at the time of the decision appealed against so is there an arguable error of law in Nelson itself because of that or do landlords needs to attest at tribunals (assuming they are allowed to be a party at that tribunal as they are not a party to the decision) that they will relet a property as having 3 bedrooms at some indeterminate future point, assuming the UT do not come out directly and say that a room of less than the 65.81 square feet I estimate cannot be a bedroom? Is this two elephants earhole’s? Decision are coming through thick and fast and I am aware of a few in the pipeline too so much will change and clarity will finally appear after three very long years.

    In short the UT is for me slowly but surely (and necessarily) getting to an absolute minimum size for a regular shaped room by drilling down into the Nelson and post Nelson criteria. That absolute minimum overall floor size can be computed and extrapolated from what UT decisions state to be the minimum components of the (bedroom tax) bedroom and an absolute minimum size would still be factual for ALL cases and rightly so.

    • Joe, the problem is that no reported decision will ever come out saying “A room is not a room if it is less than 60 square foot” or whatever, just as a decision will never come out saying “Beyond reasonable doubt means 98.3478% certainty”. Its traditionally abhorent to common law to set an arbitrary number for something – that is what statutes can do. It will always be for the judge or the council to apply the Nelson test to the particular facts on the ground unless a statute comes out saying otherwise.

  2. On the council tax liability order issue the appeal to the Valuation Tribunal will be against Council’s decision someone is liable or should not get a discount or exemption. The VT will decide that issue, not whether a liability order should have been issued by the court. Of course if the court made a liability order on the facts at the time, and the facts then change after a VT decision there could be no council tax to recover; although what a council decides to do about any court costs may be another matter.

    • Exactly. The decision left me wondering about dealing with a liability order already made. VT can deal with substantive issue of liability, but leave already made liability order intact, with no route (save procedural error) to set aside.

  3. Council tax is a messy area as a consequence of the jurisdictional split between the magistrates and the valuation tribunal and the complete lack of communication and respect which tends to be afforded by the former to the latter.

    Magistrates are essentially tasked with asking “has this money been demanded?” and “has it been paid?”. If the answers to those questions are clear, it must make the order. On occassion this leads to magistrates refusing to stay proceedings pending resolution of an issue before the VT on the basis that there is already enough before them to reach a decision. It is often not appreciated that the Order amounts to a determination on the issue of how much money is due Even if the tax payer is successful at the VT, they are likely to face controversy in any efforts to have the Order set aside as it is hardly clear that the magistrates even have a power to set aside their own civil orders.

    In practice, it is normally sensible to focus on what can be done to prevent the LA from applying for a liability order or enforcing one that they already have. Normally LAs are willing to refrain from taking enforcement action if there is a legitimate dispute as to whether the debt was owed.

  4. Anon – “Its traditionally abhorent to common law to set an arbitrary number for something”

    Is an absolute minimum size really ‘arbitrary’ or a matter of geometric fact ? It is very much the latter for me and has to be, if – and only if – the UT say that bedroom tax bedroom has to include items X, Y and Z, which they are doing.

    Nelson saw the UT set an absolute limit in any case by rejecting a bedroom to be a single bed only with all walls touching that bed and called it absurd in the judgment and “what planet are you on” at the hearing.

    “It will always be for the judge or the council to apply the Nelson test…”

    Councils flatly refuse to apply the Nelson test or criteria due to cost implications and hide behind legal fictions such as it is up to the landlord and we have no discretion to change that and so that point is worthless. Despite Nelson saying that – when disputed – the council has to come out and see the elephant and in essence all LAs showing contempt for that, the decision making system is a farce.

    The UT should be issued decisions stating an absolute minimum size to accord with the overriding objective of the tribunal service and at the very least the issuing of Direction Notices at FtT directing LAs to go out and measure needs to be done as they have such powers to direct.

    The size issue will alone and irrespective of other Nelson bedroom criteria see well over 100,000 wrongfully imposed bedroom tax decisions as rooms are not of a size, layout and configuration alone and that has to be a public interest issue that forces either UT to issue absolute minimum sizes and/or forces all FtT’s to issue such direction notices for councils to get off their arses and go out and see the elephants. I live in (naive?) hope!

    • It is, of course to much to ask for SOMEONE to come out to the property, seems as, in my case a Housing Officer was not Official enough to measure the room and explain to me in detail how to squeeze an “elephant” into a rabbit hutch… ie) 2 childrens belongings in a room measuring 363 cm’s by 173 cm’s.

      Instead they hide their foolishness behind a letter. I’ve since learnt through my few hours and frustration, hence being awake at 2.29am as can not rest due to this and trowling the Net that many people have gone through many a court hearing in regards to Bedroom Tax. So I know that the letter they sent me is, in their hope that I simply put up and shut up!

      No can do.

  5. Hi Giles, What a joy coming home to a letter from “Benefit Service” claiming they are “Unable to remove the Social Sector Size Criteria from my claim”

    I have 3 daughters aged 17, 15 and 3 yrs old. My 17 and 15yr olds both had a boxroom each and my 3yr old sharing with me, However, my 17yr old has since moved residence hence the charge of bedroom tax as they presume that my 15 and 3yr old and their belongings can both fit in a boxroom.

    This was following my Housing Officer physically attending my property and measuring the room (wall to wall as could not measure skirting’s as impossible to do so at the time) and verbally baffled at how small the room is, also expressing how two children could not possibly share this room.

    I have a 3 “bedroom” house, the two smaller rooms are identical in size.
    Length 3.63m’s by 1.73m’s / 63 sq ft – 5.8 sq m’s

    These measurments are not the actual usable floor space as I have not deducted space for the door and radiator. Or ventilation – which I will add, the exterior wall of the room always becomes effected by mold spurs as, explained by a few Damp Inspectors. As the exterior walls is cold and the room so small, the space between the wall and furniture “sweats” creating mold. The Inspectors also acknowledged that due to the lack of space in the room there cleary is not alternative but to place furniture along that wall. So, how could I possibly accomodate both a 15yr old adult size single bed and a toddler bed plus furniiture for 2 children in a box room is beyond me and my Housing Officer!

    Typically I expect them, to expect me to put a bunk bed in the room. However, my 15yr old has Scoliosis/Spine Deformity and permanent fused metal rods keeping her spine from furthur bending PLUS a leg discrepancy of 3 cm’s. There is no way I want her climbing in and out of a bunk bed nor would I allow my 3yr old to do so. That being said, it is impossible to fit both a single bed and a toddler bed in such a small room.

    My Housing Officer wrote a letter for the attention of Housing Benefit clearly stating that one of the box rooms can only be occupied by ONE child not two due to lack of size. He also states that the Northgate System states that this residence can house 4 people. 2 in the medium (my) room and 1 person in the other 2 rooms.
    This would then clasify the other 2 rooms as box rooms, right?

    However, this was not enough to settle the issue, they also stated in the letter received today (13.07.16) that “The property is a 3 bed property as per the Housing Department System” They have ignored the letter from the Housing Officer, which they asked for in an attempt to avoid the fact that the rooms are in fact box rooms.

    I have been searching the Net for advise, as quite honestly, my Housing Officer knows next to nothing about this whole bedroom tax. So, I’m pretty much left to gather information myself and fight this!

    I read that the “Floor area of a room determines how many people can sleep in said room”
    1 Person = Atleast Floor Area of 70 -89 sq ft / 6.5 – 8.4 sq m’s
    Yet, when referring to above measurements of my two identical sized boxrooms this is clearly smaller therfor not large enough for 2 children to share!!

    Also, the Housing Act states that a room below 70 sq ft is suitable for half a person not 1 person. But yet I’m being deducted HB for under-occupying! Ontop of all this, I’m 7 months pregnant, which I know is not factored into this issue as yet.

    Please advise me on my next steps, do I make a complaint or an appeal to the Benefits Department then request it to go to First Tier Tribunal. I would go into vast detail of all my points in which to fight this. I jjust need some advise on how to go about fighting this as I know I have a strong case. They have and will not scare me away with a flimsy letter, nor will I give up!

    • We can’t advise on individual cases. The Housing Act size guide is not relevant, but whether the room is capable of use as a bedroom is. I’d suggest getting advice from the CAB on how to appeal.

    • Hi Jessica. A bit late in the day replying to you. Given the health issues of your elder daughter, spine issues. Disabled children are entitled to their own room. I would have thought you would qualify under this exemption? If you could get a Dr or/and a specialist to write a letter. Does your daughter get DLA or PIP?
      There is an appeal group on Facebook.

    • Hi Debbie, thank you for your input. My daughter’s DLA ended when they made the cut backs a few years back. However, after much research, mainly from this site. Also, becoming familiar with the Housing Act I wrote a letter of attack / appeal and won hands down! No questions asked, Housing Benefit reinstated and arrears balance back to £0. The whole system is a sham, what happened to “Innocent until proved Guilty??” In my case they ASSUMED the rooms where of sufficient size and threw the book at me. I had to prove to them that the rooms are indeed box rooms. My Housing Officer attended my property and measured the rooms with me, wrote an official letter clearly stating that the rooms are box rooms, to small for 2 children to share. This was sent to them as THEY REQUESTED and they ignored it!
      I would advise people to never quit fighting, keep throwing facts at them, don’t let the stress of it all make you back down.

  6. Hi Giles. Have you got a copy of the actual judgement CH/2512/2015 please. All, I can find is the reference to it in Joes post which only shows a portion of the judgement

  7. COUNCIL AND HOUSING ASSOCIATIONS IGNORE LACK OR BEDROOM SIZE!!!!

    In relation to my previous post.. bedroom size or lack of! I won the Under Occupancy appeal late 2016 – the Council agreed no two children can be paired in a room so small. Having 2 identical size box rooms that can only accomodate 1 child per room means I’m over crowded as I have 3 children in a 3 bed house. Meaning I need to move to another 3 bed property with sufficient size bedrooms.

    But as you no doubt are aware in April 2017 B’ham City Council and Midland Heart do not take into consideration the size of the rooms. I have a 3 bed with 3 children so put up and shut up!

    Yet, I’m still overcrowded regardless of the change of legistation on a piece of paper !!!

    Any advice, I’ve tried to mutually exchage with other 3 bed houses for 10+ years, very unlikely this will ever happen due to having 2 box rooms!

    Annoyed to say the least!

    • Hi Jessica, I wondered how things are with you now? Have you had your baby yet? As that makes a difference to your situation. As baby entitled to a bedroom when born. Would be expected to share with your youngest, but not in your present house given your room sizes. As said your disabled child allow a room of her own. Have you had your housing need reassessed? Your Council, should have a bidding system you can join. I know house swapping can be fraught with issues of it’s own!!

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