A few things…

In case you didn’t see it through email or social media, I wrote a long piece about social housing in the aftermath of Grenfell Tower, which is on a separate page at that link.

In Scotland, the Inner House of the Court of Session heard an appeal from the Upper Tribunal on a bedroom tax case. The full judgment in IB v SSWP is here.  The issue was the status of “what was formerly a fourth bedroom on the ground floor was a living room at the relevant date and had been for a number of years”. The tenant needed a second living room due to her disability, in order to have a separate living space to her carer.

The Upper Tribunal had adopted SWP v Nelson and Fife Council (UT 2014) and found for the appellant:

“I am of the opinion that the Nelson decision goes no further than saying that normally the family designation and choice is not a relevant factor, but leaves open the question of whether or not there might be exceptional circumstances when re-designation might be appropriate…I therefore see no reason why designation on professional advice for a mental health or mental disability condition could not also be one of those circumstances that a tribunal can take into account in determining whether or not a room is available to ‘be used as a bedroom’…If re-designation is limited to physical conversion only for a physically disabled person, but that this re-designation is not available to a mentally disabled person when required on profession advice, then I consider that would amount to discrimination for no rational reason.”

However, the Court of Session disagreed:

“In our opinion the classification and description of a property used as a dwelling is a matter of fact to be determined objectively according to relevant factors such as size, layout and specification of the particular property in its vacant state. That classification cannot be changed except by structural alterations made with the landlord’s approval which have the result of changing the classification of the property having regard objectively to its potential use in a vacant state. Thus the classification of a property as having one or more bedrooms does not change depending on the actual needs of the occupants or how they use the rooms for whatever reason from time to time.”

This status of this decision is troublesome, outside of Scotland, where it applies until any further appeal. The Upper Tribunal has jurisdiction in England, Wales and Scotland, but the appellate courts in Scotland and in England and Wales only have jurisdiction in their respective areas. The position for the Upper Tribunal where an appeal court in one jurisdiction over turns it is not at all clear. I can’t see how a Scots appeal court decision would be binding on an Upper Tribunal in England and Wales. Yet I have been told that the Upper Tribunal has been staying cases on the back of this decision. A mess to be sorted out…

As has been pointed out in the comments, this decision by a Scottish appellate court is binding on the Upper Tribunal across the UK. However, it is not binding on the Court of Appeal for England and Wales. So, either this decision goes to the Supreme Court or, as a possibility, the Court of Appeal comes to a contrary decision on another case. Which would be a bit of a mess…

Meanwhile, the Upper Tribunal Tax and Chancery Chamber was the surprising source of a decision about adverse possession of a tidal river bed. Port of London Authority v Paul Mendoza [2017] UKUT 146 (TCC). Mr M had resisted the Port of London Authority’s attempt to register title for the tidal river bed for the area where his houseboat was moored. His argument, successful before the FTT, was that he had gained adverse possession of the river bed over 12 years, though his houseboat rested on the bed and floated according to the tide.

The UT held against Mr M. In order to establish adverse possession, he had to show the requisite intent to possess the land. The mere act of mooring continuously was not enough. While Mr M may have had discussions with other boat owners, he had not made his intention manifest to the work, including the PLA. Mooring by itself was not enough to establish such an intention to possess.

Coming up in the next few posts, service tenancies and (the lack of) convention rights, and the unlawfulness of the reduced benefit cap for single parents of children under two.