SSWP –v- JM and Liverpool City Council (HB) (2020) UKUT 337 (AAC)

An Upper Tribunal bedroom tax appeal decision that reminds us – or to newcomers, introduces you – to just how Alice in Wonderland things became because the bedroom tax regulations left the crucial term “bedroom” undefined.

In this case the First Tier Tribunal had decided that JM’s spare room could not be considered a bedroom because it:

could not appropriately accommodate a full size single bed without access through the door being impeded nor adequate furniture.

The SSWP appealed.

The key part of the FTT decision was

the room was not only small (not the only consideration), it was also an unusual shape with unusual dimensions to such an extent that it could not properly accommodate an adult single bed, as distinct from a child’s bed or a smaller bed and if an adult single bed was placed in the room then it was not possible (on the evidence available) if the bed was on the right to properly open the without trapping the occupant and if it was on the left then it would be possible to open the door more easily, but only then to about 50 degrees, it would still be difficult to leave the bedroom quickly should the need arise and with the bed on the left the room could only accommodate a small chest of drawers , but they would be unable to be opened due to the lack of space.

The argument from the SSWP was that the FTT had reached an incorrect decision that a single bed would impede access, as there could be other layouts or bed sizes. So the FTT had not properly applied SSWP v David Nelson and Fife Council, SSWP v James Nelson and Fife Council (2014) UKUT 0525 (AAC) (our note).

For JM, it was argued:

‘In the light of M v SSWP (2017) UKUT 442 (AAC) (NL note) we accept that, other than the bed, adequate furniture could be fitted into (R1)’s room’. Those submissions argued that even if a Divan bed of 75 inches with no headboard were placed in the room it would block the door and concluded ‘We submit that to have a door blocked so that (at absolute best) it can only open to a 60% angle, is unacceptable.’

The SSWP replied that potential use of a bedroom could be by anyone on the Reg B13 (5) and (6) list, including a child between 10 and 18, or two children under 10, and a shorter bed was possible.

The UT held

First, I am satisfied that the First-tier Tribunal incorrectly applied the test of access to the room as contained in Nelson – the fact that a door cannot fully open into a room but touches the bed does not mean there is not reasonable access or that it is unsafe. The First-tier placed undue emphasis on whether the door would touch the end of the bed if the bed were placed on the left hand side of the room. Further, it failed to consider whether the room was reasonably accessible to a person leaving and entering the room or gave insufficient reasons for finding that it was not, particularly in light of its finding that the door would open to an angle of 50 degrees

Further

There were insufficient reasons given by the First-tier, or another way of putting this is there was no reasonable evidence upon which the First-tier could rely to find, that a person could not reasonably access the room on entry and exit. The test in law is not whether a door can fully open or whether it touches the bed before it is able to open to a full 90 degree angle. (…)

the First-tier did not (and could not reasonably) find that a person would be trapped in the room by the bed, wall and door. Therefore, I am satisfied that a 50-degree angle of door opening on its own is not a sufficient reason to find that the arrangement of the room did not provide reasonable access or was too unsafe to use as a bedroom.

So, it was a question “to be determined by degree (sic)”

The SSWP argument as to whether a child’s ed would count was not addressed further.

Comment

So there we are. Whether a room is a bedroom has now come down to how far you can open the door when there is a bed in the room. And 50% of opening is officially OK.

Meaning no disrespect to the Upper Tribunal, which had to answer in the terms of the appeal put to it, precedent and the regulations, but this is something quite ridiculous for someone’s benefit entitlement to depend upon.