What is a bedroom? I asked this simple question a few weeks ago and went on to ask how can you tax something you can’t define? It is worth another look and discussion after this report I came across today from the Glasgow Herald which says a group of organisations have received legal counsel on the issue. It says: -
The Glasgow Advice Agency (GAA) – a consortium of consumer assistance bodies – obtained the opinion from Jonathan Mitchell, QC, who said that, while it was for a local authority to decide what was a bedroom, there was no legal definition. The only guidance uncovered was in the Rent Officer Handbook produced by HM Revenue & Customs, which “makes the important point that actual use by an actual household is usually critical”.
Mr Mitchell said it would be “going wrong in law” if a local authority determined every room that could possibly be slept in was classified as a bedroom, whatever its characteristics or use. He added: “It may be that tenants should be advised that the particular use they make of rooms may have consequences for their benefit.
“If, for example, a family with a disabled child allows him or her to use the living room as a bedroom, this may result in the property being determined to have one more bedroom than before, just as turning a bedroom into a therapy or care room, or a study or playroom, may result in a reduction in the number of bedrooms determined.”
The fact a QC agrees that there is no legal definition of a bedroom is very important to the question of how can you tax something with no definition. It means that any decision on whether the bedroom tax applies has to be a subjective one and like any subjective decision from a public authority it is open to legal challenge and rightly so. The entire bedroom tax decision-making process is highly subjective and will vary from one council to the next.
Then it goes on to say that the only guidance uncovered was in the Rent Officer Handbook produced by HM Revenue & Customs and this is worth some very close consideration and I have reproduced this is full below:
There are no statutory definitions of what constitutes a room or bedroom, so a plain English meaning should be taken.
This again confirms there is no legal definition and we know that the government is stubbornly ruling out defining a bedroom in terms of what it is and even a definition as to its size. The starting point for what must become a subjective decision is a plain English meaning or as I rephrase quite deliberately the ordinary view of a bedroom. I will return to this below as I see a huge significance in this.
The Rent Officer Handbook goes on: -
A bedroom is a room where someone usually sleeps, however they may also use it for other activities such as working. A living room is a room for sitting or eating or watching the television. Sometimes one can be used as the other, and in general lettings can take different forms depending on the nature of the locality and the type of tenant either in occupation or being targeted by a landlord.
What the above describes is easy to follow but again is hugely subjective in terms of making a decision. My mind goes to the many recent television news reports about the bedroom tax and in particular some adapted properties which have a lift which goes from a downstairs room to an upstairs ‘bedroom’ and renders both rooms as unsuitable for being classed as bedrooms. Yet in these cases we have seen the local decision being that they do constitute a bedroom for bedroom tax purposes. Such a determination must be wrong and these rooms cannot constitute bedrooms for bedroom tax purposes. They cannot be rooms where someone usually sleeps can they?
You can extend that line of argument into more simple and wider-ranging applications. If a room could be a bedroom or a study then if its ordinary use is as a study for example is it not a study? The ordinary use of a room changes over time. We no longer have a pantry or a scullery for example in modern day house use yet given the government wishes all welfare benefit claims to be digital we often see a computer room or study being an ordinary use of a room and especially with the government’s digital by default online access for claiming welfare benefits. In a disabled household often a room is a boxroom to accommodate necessary equipment and is not in its ordinary use a bedroom. The term ordinary use is also important and again I will return to this.
Yet the Rent Officer Handbook continues: -
Under the Housing Benefit Scheme, rent officers treat bedrooms and rooms suitable for living interchangeably, Local Reference Rents are based on total number of habitable rooms (bedrooms and living rooms, but including dining rooms, some conservatories and living kitchens. Under the Local Housing Allowance Scheme, the LHA is based on numbers of bedrooms alone. Therefore it will be vital when collecting lettings information to understand precisely how the property is being let to ensure the lettings information is used correctly and not to distort the LHA.
The above has huge significance in the bedroom tax debate. The closest thing we have to a legal definition of what is or is not a bedroom states clearly that there is a key difference between how rooms are viewed for social housing (Housing Benefit) purposes and for private rented housing (LHA) purposes!
If as the above guidance says it is vital…to understand precisely how the property is being let… for LHA purposes then it must hold, as the bedroom tax is about placing HB claimants on a similar footing to LHA claimants, that a 3 bed property let to a disabled household as a 2 bed adapted property is a 2 bed property and not a 3 bed.
The coalition have repeatedly compared the bedroom tax in social housing as fair as it equates with the LHA rules for private renters. Yet the above shows that for this to be equitable and ‘fair’ in the coalition or any other meaning of that term then we must discount second living rooms or parlour rooms in which it is known that some local authorities in London are classifying a ‘3 bed parlour house’ as a 4 bed property for bedroom tax purposes. [A 3 bed parlour house has 3 beds and 2 ‘living’ rooms.]
The 3 bed parlour house has become a bit of an issue on social media sites and especially the anti bedroom tax sites. Yet reading the Rent Officer Handbook the ordinary use of such properties is as a 3 bed and not a 4 bed house.
IF A 3 BED PARLOUR WAS PRIVATELY LET IT WOULD BE A 3 BED HOUSE. YET WHEN IT IS A SOCIAL HOUSING LET IT BECOMES A FOUR BED HOUSE AND SUBJECTD TO THE BEDROOM TAX!
Reader, can you like me see huge legal challenges emerging as to bedroom tax applicability decisions. Can you also see that the government argument of HB claimants only being treated in the same way as private LHA claimants is fundamentally a bogus argument? I think you must do.
I could write so much more but let’s continue with the Rent Officer Handbook which says:
For example a 3 bedroom, 2 living room property may be let as 3 bedrooms to a family, but in a student area may be let as 5 bedrooms with each living room being let as a bedroom. The rent for each type of letting could vary considerable. In the latter case the 5 bedroom letting would be included in the LHA evidence for 5 bedrooms, but if let to a family, would be included in the 3 bedroom evidence. For LRR purposes, the letting in both instances would be included in the 5 room LRR category.
The above is fairly straightforward yet my eye is caught by the “…rent for each type of letting could vary considerably.” So could the bedroom tax! Take the 3 bed parlour house example I have used which could be a 3 or 4 bed and the difference between a 0% or 14% or 25% deduction from the eligible rent depending on how it is assessed.
There is also a huge cultural difference which needs further consideration here. A Rent Officer assessing a private property goes out to view that private property knowing the private landlord wants to have the property classified as having as many rooms as possible and the Rent Officer role is often the exact opposite – to reduce the number of bedrooms the private landlord can claim benefit for. Whereas; the bedroom tax position is the exact opposite. The social landlord and social tenant wants the property assessed with as few bedrooms as possible yet the DWP and the coalition wants the property to have as many ‘bedrooms’ as possible to maximise the bedroom tax saving.
Again I will return to this cultural change later as it is also very important. The Rent Officer Handbook continues:
The simple test to apply is, for this type and size of property in this or a similar area, how has the property been let, and how do occupants use the accommodation? The size of the room is irrelevant. A room that would never be thought of as a bedroom or living room in a large country house might well be perfectly acceptable to most people, for those same uses, in an expensive, densely populated city.
How has the property been let is Rent Officers are told is the simple test to apply. The 3 bed parlour house has been let as a 3 bed not a 4 bed – so the simple test reveals this to be a 3 bed for bedroom tax purposes! The adapted 3 bed has been let as an adapted 2 bed for its letting and ordinary use purposes so the simple test reveals this to be a 2 bed for bedroom tax purposes!
The guidance to Rent Officers continues in ordinary language and I will simply pick up a few points to emphasise:
The following guide may be helpful:
A large farmhouse-style kitchen probably is a living room. A small galley kitchen probably isn’t.
Otherwise, it will depend on the way the occupants use the room and what is the norm for use in that area.
For example, a kitchen which has a distinct dining area with a table and chairs and perhaps a different floor covering may well be considered a living room. But it is a matter of a Rent Officer’s skill and judgement that matters, not the firm application of any definite criteria.
Do most occupants in this type of dwelling use either of these as a living room or a room to sleep in? If they usually do, they should be included as appropriate.
An indicator that a room can be used as a bedroom could be that at least a small single bed will fit into it, and in most cases it will have a window. Again, the application of a Rent Officer’s skill and judgement is the over-riding determining factor.
- Cellars/loft spaces with no ceilings/Utility Rooms
Are unlikely to be bedrooms or living rooms.
There are a number of things such as natural light, ventilation, safe access, head height and floor space which you can take into account, but not depend on.
The over-riding deciding factor is always how most people use the type of room in question in that area.
- Through Rooms
Two former living rooms knocked into one become one room.
If there are substantial dividing doors actually in place, or only a very narrow door-width access between the two, and the space is used as two rooms, then they should be counted as two rooms.
The original layout of the dwelling is irrelevant and should not be considered
The original layout of the dwelling is irrelevant and should not be considered? My discussion above of the original 3 bed property adapted to become a 2 bed one for a disabled household is very relevant here. It is a 2 bed property for bedroom tax purposes and not a 3 bed – OR AT LEAST THAT IS HOW IT WOULD BE VIEWED IF IT WERE A PRIVATE RENTED PROPERTY! YET IT IS VIEWED DIFFERENTLY AS A SOCIAL HOUSING LET!!
A Rent Officer very rarely has to or is asked to assess a social housing dwelling which is the exact opposite of a private dwelling being rented. However the RO can be asked to assess a social housing property and can be asked to do so by the existing tenant it would appear. If this is the case and I think it is from reading the VOA site then the social tenant who has been informed they are subject to the bedroom tax should request a Rent Officer Determination.
I don’t necessarily say this as that would involve 660,000 (or is it 930,000?) determinations which would take forever and cost an absolute fortune, although it would; rather I see an independent view and I mean view as in viewing as the right of a tenant to any such desktop-based subjective decision that a bedroom tax deduction is applicable.
If ROs go out to assess private lettings for LHA purposes and if the bedroom tax is placing HB for the social tenant on the same footing as LHA for the private tenant – which is exactly the rationale and justification the coalition uses, then I can see the social tenant rightly seeing this as the only way to make that comparison. A RO must come out and view the social property to assess whether any HB Officer decision to apply the bedroom tax deduction is a fair one.
Would a RO decide that the ordinary use of the 3 bed adapted with a through-floor lift is a 2 bed or a 3 bed? I think there is only one answer to that and that is to say it is a 2 bed and so the bedroom tax should not apply as the ordinary use of the property is a disability adapted 2 bed. Go back to my discussion on this entitled the private landlord doesn’t do disability. The private landlord doesn’t put in thousands of pounds worth of disability adaptations simply because it would render his 3 bed property as a 2 bed and thereby reduce his income from rent. Yet the social landlord does.
You begin to see why the Rent Officer Handbook becomes important as the ‘fair’ rent role they undertake in a private property needs to be the same in a social property. Yet the same handbook says it is different between the two rented sectors and the social rented sector is significantly discriminated against as in social housing and “Under the Housing Benefit Scheme, rent officers treat bedrooms and rooms suitable for living interchangeably” Yet for private renting and.”… Under the Local Housing Allowance Scheme, the LHA is based on numbers of bedrooms alone.”
DING DING ALARM BELLS RING!!
That appears to me to be wide open to a human rights challenge as the social tenants right to a home is less of a right and a reduced right compared with the private tenant in terms of what constitutes a bedroom.
I am going to wrap this up now as the post is in danger of becoming a dissertation or doctoral thesis length – which it easily could be.
The Rent Officer Handbook will become a key part of any challenge to the bedroom tax for many reasons:
- It is a direct challenge to the political spin that the bedroom tax is simply replicating in social housing to Housing Benefit the same conditionality a private tenant has under LHA rules.
- That is nonsense and as I have discussed the social tenant is treated with clear lesser rights and discriminatorily in the bedroom tax applicable decision-making process to the private tenant.
- The fact a private tenancy is VIEWED physically before a fair rent is set to assess the ordinary use but a social tenancy is a desktop review is unfair
- The fact that the ORDINARY USE of a private property is ASSESSED as part of the decision-making process for LHA rent determination but NOT for social housing is also unfair and again discriminates against the social tenant
- The bedroom tax decision-making process by virtue of excluding a VIEWING or considering a social property’s ORDINARY USE is also unfair and hugely exposed to a legal challenge
- The bedroom tax decision-making process is exposed to a human rights legal challenge on a general basis that it discriminates against ALL social tenants
- The bedroom tax decision-making process by not assessing the ORDINARY USE of the social property in cases of the through-floor lift for example is exposed to Judicial Review on equality / disability bases
- My earlier posts where I discussed minimum bedroom sizes (MBS) in terms of a bedroom needing to be 70 square feet to be a single bedroom and anything less than 50 square feet is not a bedroom are APPLICABLE ONLY TO A PRIVATE PROPERTY assessment and not ORDINARILY to a social property and this is also unfair and discriminates against the social tenant and gain calls into question the entire bedroom tax process
That latter point explains precisely why the coalition and DWP are so adamant that they will not define a bedroom. It is a legal minefield to do so. Yet in not doing so they create huge exposure to legal actions against anyone involved in the decision-making process for the bedroom tax and for that reason alone it is irrational and should be subject to legal challenge. The coalition and DWP pass the risk of legal exposure to local councils and to social landlords and they should challenge that position legally.
If you are unsure why social landlords should challenge the same Glasgow Herald article includes a quote from the DWP which says:
The Department for Work and Pensions (DWP) said it tailored housing benefit to the way the social landlord or local authority defined the property.
A spokesman said: “If a social landlord says it is a two-bedroomed house, regardless what happens to it subsequently, it is a two-bedroomed house and that is what housing benefit will be judged on.”
A very definitive statement from the DWP. A property is whatever the social landlord says it is for bedroom tax purposes!
If that DWP view holds then aside from making the entire bedroom tax decision-making process unfair and irrational and subject to legal challenge it does pass the buck and risk to social landlords – and a reason why social landlords should seek to legally challenge that position as they have been put between a rock and a hard place.
Note too it also brings my simple solution that a social landlord should reclassify and tell the local HB department that the 3 bed property is only a 2.9 bed property as the smallest bedroom measures 9ft x 7ft. If as the DWP say here the social landlord’s word is definitive then the 2.9 bedroom scenario would exempt a huge number of the expected bedroom tax cases and the bedroom tax would be in tatters.
The Glasgow Herald article is significant in itself given we have a QC’s opinion which I have not seen. Yet just as important as in reading it the role of the Rent Officer Handbook as the closest thing we have in law to defining a bedroom has shed some illuminating light.
UPDATE Sunday 11.45am
I have read and considered the written opinion of the QC in this matter and will publish a number of significant updates to this post starting on Monday relating to it and also other matters which have emerged from my ‘ramblings’ above and information and advice I have received from other sources.
I do not expect the same speedy U-turn from the coalition that we have apparently seen today in which it appears the UC regulations are to be rewritten so that the mixed-age pensioner couple will not be affected by the bedroom tax (see ITV news report here) which is good if it happens and if it does it shows (a) the coalition is worried by the power of the ‘grey vote’ yet (b) the same ‘grey vote’ will know the coalition deceived them all along, and (c) Uncle Tom Cobley and all will know the coalition doesn’t know what it is doing. So the coalition will be rightly criticised if they do change the UC regulations or if they dont