Bolt out of the blue
The New Year has brought encouraging news for tenants fighting the bedroom tax, says Steve Clarke
The heartrending bedroom tax cases Welsh Tenants is coming across test both the emotions and the intellect of all concerned in the tenants’ movement. The New Year, however, will not just be remembered for the horrendous floods and storms, it has also been raining first tier and upper tribunal appeals – many of which provide some encouraging news.
Since our September 2013 national conference where the Fife first tier tribunal (FTT) which the DWP is contesting was announced, there has been a rash of appeal cases successfully logged and won with Her Majesty’s Court Tribunal (HMCT) Service. These FTT cases (including those in Wales) seem to bear out the assumption that we have been making that ‘you cannot legitimately deduct housing benefit on the tenancy agreement and composition of occupancy alone’. To do so renders the decision liable to be challenged through the appeal courts by tenants – and rightly so!
The ‘Bolton rule’
The recent ‘Bolton rule’ made in the Upper Tribunal (Administrative Appeals chamber) CH/140/2013 is a most significant case, as it addresses a fundamental issue, a failure to define what a ‘bedroom’ actually is.
We don’t have the room to detail the full background of the Upper Tribunal case here, except to say, that this was a local housing allowance (LHA) appeal in the private rented sector relating to the claimant being assessed for LHA on a one bedroom rate on a two bedroom property. It was deemed by Bolton Council that the husband and wife could share a room and that the carer was not occupying a bedroom as she was occasionally sleeping on the sofa or temporary bed in the living room. Bolton Council, contesting, brought the case on the basis of a decision made previously at the lower FTT in which the original appeal hearing ruled that ‘a second bedroom was reasonably required by the claimant’.
However, the substantive issue of interest here is the impact for social housing tenants impacted by the bedroom tax. This absence of definition inevitably required the appeal judge Lloyd-Davies to ‘define a bedroom’ in order to properly consider the councils appeal. In doing so the UT used the dictionary definition of the common meaning of a “bedroom”, that is absent from the legislation and regulations. Looking at this issue, the court considered the following:
In para 19. of the directions it states:
‘The word “bedroom” is not defined in legislation. It is an ordinary English word and should be construed as such. According to the dictionary definition in the Shorter Oxford English Dictionary a bedroom is “a room containing a bed”, whilst in the Collins Dictionary it is “a room furnished with beds or used for sleeping”. In the Merriam Webster Dictionary it is “a room used for sleeping” and in the Webster’s Dictionary it is “a room furnished with beds and used for sleeping”.’
In considering the case, the judge has basically directed FTTs to consider the common definition when considering cases where the nature of the room use is in dispute by housing benefit claimants. It is the first case that does so in a reasonably definitively way. This has also been interpreted as meaning, when housing benefit officers are considering determinations, they will need to establish ‘room usage’ in their investigation. Many commentators argue that this should mean making a visit to the property to establish the facts of room usage before deciding to deduct housing benefit.
For many tenants impacted by the bedroom tax this is a vindication of their concerns that decisions are being made as ‘a purely administrative exercise without establishing the facts of their case’ and hence the uproar of injustice that so infuriates.
‘Alternative use’
While this appears on the surface to be a major vindication of tenants concerns, it is certainly not a panacea, and we should treat the judgment with a level of caution, not least since it throws up a host of questions. For example, should a room continue to be available for use as a bedroom to make it a bedroom? Would ‘alternative use’ need to be established to make the room unavailable for use as a bedroom through permanent fixtures perhaps or longer term established alternative use? And what kind of use might that be for it not to have the ability to be used as a bedroom? From the judgment, it would initially appear that the absence of a ‘bed’ does not alone stop a room from potentially being a bedroom. So the UT ruling may not be as definitive on the issue as some might believe, however, it is certainly very helpful for tenants to be able to evidence an argument about room usage in mandatory reconsiderations and appeals.
One thing that is certain is that it does make it clear that the ordinary dictionary definition of ‘bedroom’ should be used when determining whether or not a bedroom is in fact a bedroom: that ‘it is used for sleeping in’ and ‘it is furnished as such’ for FTTs considering tenants’ appeals.
Interestingly, the DWP has stated that the ‘judgment is correct’ and they will ‘not be challenging this ruling’. On that basis, many thousands of tenants throughout the UK will be further encouraged to take their cases to appeal (and so should their landlords).
Couple this encouraging bolt from the blue with recent financial assessments of the costs of rehousing people whose homes have been adapted by major landlords, and MP Ian Lavery’s Ten Minute Rule Bill on the bedroom tax that effectively gives the UK coalition an ‘out’ and are we seeing hammers and nails being prepared?
The end?
Despite the Court of Appeal ruling in favour of the government in the case of adults with disabilities who are challenging the lawfulness of the policy, could we be seeing the shroud being finally pulled over the heavily wounded body that is the bedroom tax? And nails being hammered into the coffin of this outrageous social experiment? If not, then the courts, local authorities and the voluntary sector are going to be extremely busy with tens of thousands of claimants using the ‘Bolton rule’ and other judgments to argue an appeal on room usage.
Steve Clarke is managing director of Welsh Tenants. Please contact info@welshtenants.org.uk for further information. Membership and support is free, and so is our loyalty to you