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Bedrooms, river beds and more


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.


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.


  1. Joe Halewood

    The IB case was much more than room use and specifically it made comments on the approach or test which are at odds with Nelson. A shortly to be heard UT case was asked to consider this case and other later to be heard UT cases stayed to this upcoming one

    • Giles Peaker

      Thanks Joe. Though my head hurts trying to work out what the import of another UT case would be.

  2. ariwara

    Any views on the correctness of the Court of Session decision (which is surely binding on tribunals in England and Wales meantime, this is British legislation and that’s how the British tribunal system works)? Should it be appealed to the UK Supreme Court? Are there other cases in the English Court of Appeal which might say something different?

    • Giles Peaker

      Put it this way, if a UT decision in England on the same point was appealed to the court of appeal, the court of session decision would be of zero effect. I’m not even sure that it is binding on the E&W UT in the meantime. It is British legislation, but a Scots appeal decision…

  3. ariwara

    Minister of Pensions v Higham [1948] 2 KB 153 held that Court of Session decisions are indeed binding on UK tribunals anywhere in UK, in precisely the same way as were decisions of the Court of Appeal. That has never I think been doubted by any later English court. Bear in mind also that under section 13 (12) TCEA, a ‘UT decision in England’ might be appealed to either the Court of Session or the Court of Appeal; and judicial review of the UT is open in either jurisdiction (Tehrani). This is a British tribunal. And I don’t think the higher courts in either country take quite such a narrowly nationalistic view as you suggest. Consider for example the discussion in the Spakab series of cases. The fact is that decisions aren’t “Scottish” or “English” in this context.

    So- you’re stuck with the decision in IB unless and until it’s appealed to UKSC, or the EWCA says “we are quite clear that it was wrongly decided”. The question remains: is it right or wrong?

  4. ariwara

    House of Lords in Tehran v Home Secretary [2007] AC 521, an immigration case but the background is identical:-
    “To my mind the nationwide nature of the legislation and the two-tier appeal structure of adjudicators and the IAT point to the conclusion that, in the same way as adjudicators and the IAT have jurisdiction (legal power) throughout the United Kingdom, so the superior courts of the constituent parts of the United Kingdom have jurisdiction to review decisions of adjudicators and the IAT wherever made. Once it is recognised that adjudicators and the IAT are properly to be characterised as United Kingdom tribunals, there can be no occasion for attempting to confine the supervisory jurisdiction of the courts of England or Scotland by rigid rules or, even less, by rules whose bounds are vague. In respect of decisions of these tribunals the Court of Session and the High Court have concurrent jurisdiction. Decisions of the Court of Session and the High Court made in exercise of this concurrent jurisdiction are binding throughout the United Kingdom.”


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