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03/10/2021

Bedrooms – hypothetical rather than actual. Bedroom tax and actual use.

The Secretary of State for Work and Pensions v Hockley & Anor (2019) EWCA Civ 1080

A quick note because I somehow missed this at the time. The Court of Appeal overturned the Upper Tribunal decision (our note here) on whether assessment of entitlement to bedrooms for the bedroom tax was connected to the actual occupiers and their actual or potential use of the rooms. (Here there were two children and two bedrooms, neither of which could accommodate two children.)

The Court of Appeal held that

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).

Such reasoning is consistent with that of the UT in Nelson and the Court of Session in IB which considered the underlying purpose of the legislation and the use of the word “bedroom” in that context. It is not consistent with the approach of the UT in this case, which introduced a subjective element into that assessment, which I find is supported neither by the words of the regulation nor the intention of the legislation.

For the reasons given I find that pursuant to the size criteria (Regulation B13(5) of the Housing Benefit Regulations 2006, which entitles the housing benefit claimant to “one bedroom for each of the following categories of person” in occupation of the property) the word “bedroom” should be interpreted as meaning a room capable of being used as a “bedroom” by any of the listed categories and not a room capable of being used as a “bedroom” by the particular claimant. In holding that the correct interpretation was a room capable of being used as a “bedroom” by the particular claimant, the UT erred in law and its decision was wrong.

So, the actual use that the existing tenant and their household could make of the rooms is irrelevant.

 

 

 

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.

2 Comments

  1. speyejoe2

    Misses two huge elephants and far greater than usage issues.

    The first is the property was described correctly as a 3 bed 4 person property in the tenancy agreement thus no under occupation existed so the bedroom tax is NOT about under occupation at all the CA ruled

    The second is that the Hockley CA judgment says a room that is big enough to be a cot room is a bedroom for bedroom tax purposes so a social housing property with three rooms each measuring 4 feet by 4 feet is a 3 bedroomed house for bedroom tax purposes even though none of these rooms could fit in a single bed/ That is what the language says “… the word “bedroom” should be interpreted as meaning a room capable of being used as a “bedroom” by any of the listed categories” as one of those categories of person is a baby.

    In short ALL bedroom tax appeals on ‘size’ of a room are redundant due to this craven irrational CA decision

    Reply
    • Giles Peaker

      Your first point is exactly that made by the respondent in the Court of Appeal – it failed. Bedroom is an imprecise proxy for need – see para 37.

      The issue of whether one of the bedrooms is suitable for sharing has been remitted to the FTT. (“There is a dispute which has been remitted to the FTT for consideration as to whether one of the bedrooms is suitable for sharing.”) The Nelson factors on whether a room is capable of use as a bedroom (in general, not by the specific occupiers) remain.

      Reply

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