06/06/2020

Hypothetical children and bedrooms

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) [2017] 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.

 

 

 

 

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.

9 Comments

  1. speyejoe2

    The issue of “usage” was never argued in this case in all the more than 5 years this case was argued, though I can see why from the decision wording anyone would think it was, but that just reflects the appalling wording of the decision. The reason for the background was not usage at all, but the fact that the radiator that was installed in this room in 2002 (which the tenancy agreement always said was a bedroom) not only stood proud from the wall and reduced the space but all of the pipes to it were surfaced mounted and then covered in Pendox skirting and reduced the available space even more.

    This hearing of the case was severely limited in scope by the UT judge to the Hockley CA case to which it had been stayed. The UT judge making it explicit he would not contemplate its bad law which it was and is as the CA Hockley decision textually contradicts the Supreme Court case in Carmichael.

    The ‘bad law’ reference was the Hockley case saw the CA ignore 13(5) (ba) in its decision and was a significant error of law. The Hockley case was whether any of the two tiny bedrooms could be shared by two children – that is a ‘size’ argument – and the CA decision correctly stating the first category is the one that applied in any case entirely missed out 13(5) (ba) as both children could not share any of the two small rooms because each room was not of a size to enable sharing and (ba) was and is the first category the Hockley decision would reach, which the CA wholly ignored.

    While (ba) was inserted due to the Gorry case and concerned disability issues not size issue, the text of 13(5) (ba) reads:

    “(ba) a child who cannot share a bedroom;”

    The CA Hockley case omitted (ba) from its statement of the regulations in its decision. If it had included (ba) which it should have done its decision would not logically flow as the child / children in it could not share any of the two alleged bedrooms due to size of these mere rooms. What the bad law of the Hockley CA did was mean ANY bedroom only had to be of a size for a child and was and still is perverse. It means (a) a cot room can be a bedroom; (b) 3 cot rooms make a 3 bed property even though none is large enough for an adult and thus perverse; (c) renders ALL ‘size’ arguments as meaningless; and (d) a room is a bedroom if the social landlord says it is – end of!

    Reply
    • Giles Peaker

      Hockley – (ba) was added after the relevant determination, so wasn’t dealt with, quite rightly. It wasn’t relevant to that decision. So, not bad law or a significant error of law. And how on earth you thought the UT could depart from a Court of Appeal decision, I do not know.

      But in any event, (ba) is a child who cannot share a bedroom, by reason of eg disability. It is not whether the putative bedroom is being capable of being shared. Not that this would have made any difference in this case at all, because there were no children, but the room was capable of being occupied by (e) a child.

      Reply
      • speyejoe2

        You first point is factually incorrect and another CA error of law. The Hockley case appealed was the 2014 decision and AFTER the (ba) inclusion from late 2013 so there is not doubt the regulations has the (ba) inclusion when decided.

        The UT has departed from the Scottish appeal court in the past as you know and appear to have forgotten – and you are assuming this was a predetermined argument of mine which it wasn’t. The UT judge made it very clear in his opening oral remarks (which were not on the paper directions to this very long running case) that the hearing was very limited to the Hockley decision on this case and nothing more. The issue in WT was size and configuration and always argued that way which the UT judge by taking a very narrow view meant in this case and in every other size appeal that any bedroom only has to be of a size to accommodate a child or an infant

        Reply
        • Giles Peaker

          Joe, the UT that distinguished the Scottish court decision did so on the basis that the decision it was dealing with was an English one. The UT decision was later overturned. Trying to tell the UT on an English decision that it can ignore the Court of Appeal is utterly hopeless.

          (ba) was inserted as of 4 December 2013. The decision in Hockley was from April 2013.

          But, for the reasons in my initial comment, (ba) has got nothing to do with the room size. It is about the child’s needs.

          The size decision is the result of Nelson and Hockley.

  2. speyejoe2

    Giles, I am sure you remember SSWP advanced the argument in Nelson that a single adult bed that abutted all 4 walls was in the SSWP view a bedroom. I am equally sure you recall the UT – in fact the then President of the UT – saying in that hearing such an argument was perverse. In fact he actually stated verbally “What planet are you on” when SSWP counsel advanced that argument – and which would have seen a room of 19.5 square feet (adult single bed of 6’6″ x 3′) being a ‘bedroom’ in this offensive policy

    What the CA decision in Hockley decided in effect was a cot room that measures say 4′ x 4′ or 16 square feet is a bedroom and in doing so decided that all “size” arguments are rendered meaningless when challenging any bedroom tax decision. The fact the CA ignored the actual regulations makes their bad decision so much worse.

    Reply
    • Giles Peaker

      There is precisely zero point in asking the Upper Tribunal to ignore or overturn the Court of Appeal. The best you can do is reserve the right to make such arguments on appeal to the Court of Appeal or Supreme Court.

      Nelson did find “When an issue arises as to whether a particular room falls to be treated as a bedroom that could be used by any of the persons listed in Regulation B13 (5) and (6) 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.” – ANY of the persons listed in (5) and (6).

      Reply
      • speyejoe2

        The CA in Hockley and the SC in Carmichael said it was the first category of 13(5) that applies not any and so the process is a chronological top down process thus (ba) comes before (e) in the correct legal decision making process. They both change and rewrite Nelson by saying first not any and are both higher authority than Nelson.

        Reply
        • Giles Peaker

          That makes no difference whatsoever.

  3. Tom

    Joe, you can’t win in the Upper Tribunal by arguing that a Court of Appeal decision is wrong. You would need to go to the Supreme Court.

    If, and to the extent that, Hockley invalidates size based arguments, so be it. That doesn’t, of itself, make the decision wrong. It is perfectly possible that the Regulations are, of themselves, perverse and unfair and have been correctly understood as such.

    Reply

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