SSWP V WT and Redcar and Cleveland BC (HB) (2019) UKUT 372 (AAC)
Very late to this one (I missed it) but a brief note on a doomed attempt in the Upper Tribunal to challenge The Secretary of State for Work and Pensions v Hockley & Anor (2019) EWCA Civ 1080 on how to assess bedrooms for the bedroom tax.
The history was:
The property in question was built in 1967. There are three room upstairs (excluding the bathroom). The claimant has lived there all his life and his parents were the first tenants. The local authority treated the property as a 3-bedroom unit but originally there was no heating in the third room upstairs. The claimant, who was born in 1971, slept in the third room until the mid-1980s. His parents had separated in 1980, leaving the claimant, his mother and sister in residence but his sister then left home in the mid-1980s. A radiator was not installed in the third room until around 1999 (at least at the oral hearing Mr Halewood dated this change as taking place in 1999, while the documentation suggests it occurred in either 2002 (p.151) or 2006 (p.134); the precise date matters not – what is clear is the change took place more than a decade after the claimant had stopped sleeping in the room as a child). Following his mother’s death in 2008, the claimant succeeded to the tenancy. The net result was that by the time of the Council’s decision the third room had not actually been used as a bedroom for more than 25 years. But the actual usage of a room is not the test.
The FTT had decided that the room was not a bedroom as it ‘could not reasonably be described as a bedroom’. The FTT had considered the layout and size of the room, it appears, on the basis of whether an adult or two children could occupy it. The FTT also appeared to take into account current use of the bedroom. This decision predated Hockley
The Court of Appeal decision in Hockley had subsequently held:
There is nothing in the regulations to indicate that any such assessment is required to take account of how a property and, in particular, the bedrooms in the property would be used by a particular family unit. Were that to be so, the purpose underlying the legislation would be frustrated as a tenant could, by use of the property, change the objective classification so as to reduce the relevant number of bedrooms. This further demonstrates the objective nature of the assessment and, with it, the interpretation of ‘bedroom’ within B13(5).
On the application of Hockley, Joe Halewood, for WT, made two main arguments:
First, he argued that Hockley was bad law and the outcome on the facts of that case was positively perverse. Second, he contended that the Court of Appeal in that case was in any event solely concerned with the “connection issue”, namely is “a room in a dwelling classified without reference to the particular individual or class of individual who may occupy it or must the room in question be one that can be used as a bedroom by the actual occupants or class of occupants” (Nuneaton and Bedworth Borough Council v RH and the Secretary of State for Work and Pensions (HB)  UKUT 471 (AAC) at paragraph 2). The Court of Appeal in Hockley, he argued, was not concerned with the “classification issue”, namely whether the room could be used as a bedroom at all.
The first line, unsurprisingly, went nowhere. Neither, given the para quoted above from Hockley, did the second line.
So, the question was then simply whether the room could be used as a bedroom by any of the Reg 13(5) categories.
While the room, and the positioning of the radiator and cupboard door certainly made it awkward to use as a bedroom for an adult, it it was still possible within the Nelson criteria. But more significantly WT had not advanced any real reasons why it could be used as a bedroom for a child.
Applying the principles in Nelson (our note), IB and Hockley, and based on my findings and reasons as set out above, I do not accept that submission. Instead, I consider the room could be used by either a single adult or a single child. Mr Halewood really had no answer to the proposition that – putting to one side whether the room was capable of use by an adult – the room was a bedroom if it could be used as such by a child. So, I am driven to the same conclusion on the facts as that reached by the second FTT, and summarised at paragraph 6 of its decision notice from 17 March 2015 (p.169), namely:
“The Tribunal considers that although the room is small it does not prevent it being used by a child i.e. somebody who is sixteen or under or by an overnight carer or an adult. The Tribunal in arriving at its decision took into account the Nelson case (2014) UKUT 0525 (AAC).”
SSWP appeal allowed.