The perverse bedroom tax UT decision – why its wrong and why the judge should go!

The Bedroom tax lead case in the Upper Tribunal produced a perverse and farcical decision and a decision which unilaterally failed to meet its terms of reference.

The case had the following abstract

As you can see this is sourced on the official site and that abstract and terms of reference were still there at 8.28pm today Friday 5th December 2014 and the decision was handed down on Wednesday 26th November some 9 days previous. (Why it then took a week or so to get to the parties is another matter!!)

The terms of reference were threefold:

1. To decide what a bedroom is by virtue of size
2. To decide what a bedroom is by virtue of usage
3. To decide whether the space standards are relevant – i.e. the 1985 Housing Act (1987 Act in Scotland)

YET it did NOT decide any of the above and unilaterally failed in its purpose as stated in the abstract and terms of reference.

The decision fudged the issue of a minimum size that a room has to be in order to be determined to be a bedroom.  The decision fudged the issue of what is a bedroom by usage and fudged the ‘read across.  It failed to issue definitive rulings on all the above.

No doubt the UT knew the political importance of this decision and they remark on that in the decision and this is a heavily politicised decision which seeks to avoid a definitive ruling until after the May 2015 General Election as the bedroom tax would then become a key electoral issue.  This is a political fudge and a decision rife for appeal on so many arguable points of law.

The UT set out their stall and their approach in paragraph [3] –

The central issue of law in these appeals relates to the approach that should be taken to determine what is a bedroom for the purposes of the Amended Housing Benefit Regulations.

Straight away we can see that how you define the term ‘bedroom’ is the central issue in any appeal onn the Amended HB Regulations (i.e the bedroom tax).  The UT was fully away of its terms of reference as I point out above.  I note that they say what approach ‘should be taken’ and not approach must be taken, which in and of itself is wishy washy and lacks definition.

Yet the real issue is what approach they did take which is perverse and rife for legal challenge as everything they say following their approach is premised on that approach and everything turns on it.  So when they say their approach on HOW to define the central issue of the ordinary word bedroom is “….the word normally defies definition” which they cite at [20] from Lord UpJohn in the case of Customs and Excise Commissioners v Top Ten Promotions [1969] 1 WLR 1163, the UT were setting themselves up to fall and fail in meeting their terms of reference.

You cant decide what a bedroom is by saying it is the central issue of law and then say we choose an archaic case which says it can’t be defined!  This smacks of a predetermined view being written as a deliberate obfuscation and fudge and then finding an obscure and archaic citation to justify that fudge.

The same Upper Tribunal in the Bolton case of 2013 determined the word ‘bedroom’ has its ordinary English language meaning and therefore can be defined.  That case used an amalgam of different dictionary definitions to arrive at a decision on what is a bedroom.  It cited the well-known legal case of Brutus v Cozens [1973] to say this literal meaning was the way to define bedroom. Note well this is 4 years after the UpJohn version.

Argued before the UT by the DWP was that this literal definition (Brutus) was wrong to adopt and rather as the purpose of the bedroom tax was to save money the correct approach should be a contextual one such as Pepper v Hart [1992] and/or R v Quintavalle [2005].  Note well here neither side argued that the term ‘bedroom’ could not be defined and yet the Upper Tribunal pull the UpJohn approach like a rabbit out of a hat to say it can’t be defined.

Highly convenient and rife for appeal as the rest of the decision all stems from this archaic premise and definition of a non-definable definition of the ordinary English word bedroom.

It is all the more perverse a basis or premise for the ensuing decision when the UT state at [33]that the case put forward by lawyers for the Secretary of State of a bedroom “…does not fit with its ordinary or familiar meaning.”  How can an approach based on something that cannot be defined then result in a view that one parties description of a bedroom does not meet its ordinary or familiar meaning?

How can something have an ordinary and familiar meaning if it is not capable of definition in the first place?

To be fair to the UT judges whatever approach they did adopt of those mentioned above it would open up arguable legal grounds of appeal, yet the UpJohn approach is by far the most perverse and most irrational.  It goes against the 3 later approached at construction and interpretation of an ordinary language term and why I refer to it as ‘archaic’ and also goes against the Upper Tribunal ruling made less than a year ago on the construction and definition of the precise ordinary term ‘bedroom’ and not any general definition of a word such as ‘idiosyncrasy’ or indeed ‘elephant!’

Elephant – yes this decision is the biggest elephant in the room and as well as failing to meet its terms of reference and then, perversely saying it is not definable but we will define it, but only in the vaguest possible terms and then say this approach at [23]”…reflects the old adage that it is difficult to define an “elephant” but we know one when we see one and so we can explain why we think we have seen one by describing what we have seen” is beyond perversity.

Excuse this anecdote in what it meant to be a rational discussion of the law and fact here yet about 12 years ago my ex partners relative were over from Australia. I gave my partners highly intelligent 15 year old niece a lift up to her great grandmothers and just out of the car and she screams “There’s a huge weird rat!” It was a squirrel! They don’t have squirrels in Australia so she clearly did not know what the hell she had just seen, though she knew what an elephant was! I am also 100% sure she knew what a reasonable definition of a bedroom was and is too.

That perverse view of we know one when we see one is also perverse as it infers that in order to impose the bedroom tax the decision maker’s in councils need to go out and see for themselves whether a room is a bedroom or not and BEFORE they can make the bedroom tax decision, remembering here that the under occupation charge can ONLY be levied on a bedroom and not on any other room.

Yet the decision fails to decide WHAT a bedroom is.

How can you have a decision making process which says that the council decision maker MUST decide what a bedroom is BEFORE it then imposes the under occupation charge / bedroom tax / reduction in Housing Benefit entitlement and despite saying that in the SI which enacted it, the UT fail to even consider it?

Instead of looking to the SI which introduced the bedroom tax as to the intent of parliament they choose bizarrely to be swayed by a perverse comment from Lord Freud at [54].  Yet SI 3040 of 2012 says:

Regulation B13 makes provision for the calculation of the maximum rent (social sector). The local authority must determine how many bedrooms are necessary for the claimant’s household, in accordance with the criteria set out in paragraph (5), and how many bedrooms the claimant has. The local authority must then determine the claimant’s limited rent.

That was said, agreed and signed off by….Lord Freud in the legislation. Yet the UT here prefer to be swayed by what he said in the House of Lords 2 months earlier than the legislation he enacted and signed off.  That is thoroughly perverse and frankly incompetent.  The legislation sets out a process which says the local authority must determine how many bedrooms each property has and THEN, that is after that point, determine whether or not to impose the deduction.  Yet this UT decision fails completely to discuss or consider that point.

There is an intention to do so as [6] says “Under occupation” is defined by reference to the ‘bedroom criteria.” Hence the need to identify what is a bedroom.”  The decision then goes on to restate regulation B13(2) which says the same as the SI extract above yet only focuses on the housing need or how many bedrooms (however defined) the claimant’s household is permitted.  This decision absolutely fails to address the other side of that equation in what a bedroom actually is!

That is a huge error in the thinking of the Upper Tribunal here and one that again is ripe for appeal.  It also helps explain my point that this decision was predetermined for other reasons and agendas and then somebody conveniently found the archaic UpJohn approach that allows this predetermined view one iota of credence.  The fact that 99% of it doesn’t hold water shows the paucity of thinking in this truly perverse decision.

I could go on and on with so many more perversities and perverse here means the decision was legally perverse and contains so many arguable errors of law that a squirrel or an elephant could argue legally and get permission for this to be appealed.  Yet that is the issue.

This decision in practical terms holds and can and will be used by councils and tribunals to prevent legitimate bedroom tax appeals being heard.  It can be read so many ways and simply provides excuse for many tribunal judges who don’t want to hear and decide such cases many of whom have made inept decisions and very poor legal decisions, admittedly both ways.

This decision even alludes to that when it says at [3] “Although we were not referred to them we are aware that a number of different approaches have been taken by First-tier Tribunals”  They have indeed some good, some bad and some truly bloody awful ones, though of course the UT is not going to say that just as it does not say in the decision but did say at the hearing it is troubled by the number of other cases stayed to this UT hearing both winning and losing cases at FtT.

The UT judges were clearly not happy at the scores of cases being stayed to this case as they did give them a virtually impossible task of making this case a true lead case and determine definitive precedence or meeting its terms of reference.  Yet that is no excuse for this perverse decision which may see legitimate appellants at FtT first having to persuade the tribunal to hear a case over an alleged but clearly not a bedroom of 27 square feet.

This decision WILL regrettably see some tribunal judges issue Directions Notice upon Directions Notice saying the lead case of UKUT 0525 (AAC) [2014] means that you can’t appeal on room size or room usage as some tribunal judges are looking for any reason, however incompetent and without legal merit, to prevent hearings going ahead at FtT.  Whether that is out of political reasons or just incompetence that is going on, has gone on and will continue to go on.

This legally perverse decision only gives more power to these small number of judges and puts yet another stumbling block in the way of legitimate appeals by tenants and of course defies the remit of the Tribunal to give natural justice and also breaches its ‘overriding objective’ to hear cases and hear cases in that way.

If anyone is under any illusion that IDS wont be smiling at this despite the UT describing his argument as to what is a bedroom as absurd and a tenant would need to “…jump from a passage through an outward opening door to get into bed (and) would have nowhere to put clothes..” [33] even more ridiculous which it is then think again.  IDS will look at this and realise many tenants will be ever more dissuaded from appealing and councils will also dissuade more claimants from appealing too.

There is likely no time for a new lead case before the GE and despite this perverse decision giving so many grounds to produce an appeal on its many perversities such an appeal won’t happen before the GE and that is the real reason IDS will be smiling.  There will be no political adversity from the bedroom tax as there would have been if these UT judges had the balls to say as a bare minimum that a bedroom needs to be at least 50 square feet in floor size and say so definitively.  There will be at least 5% of all bedroom tax households with alleged ‘bedrooms’ of under 50 square feet.

Those minimum 25,000 households have had the bedroom tax wrongly imposed and this UT decision deliberately avoided making a definitive ruling even on that pokey size which is 25% less than the minimum size of a bedroom laid down 100 year ago in the Tudor Walters report which this decision mentions as a mere ‘warning bell’ yet fails to rule as they should and as any reasonable person would say is not a bedroom.

The UT bottled it and capitulated to the political sensitivity they admitted to knowing and which they said at [6] “…has been a matter of great public controversy.”

I say all the above from full sight and consideration of the papers before this UT and not just from the copy I have of the decision.  It is all too easy to highlight the errors of law and perversities in this decision and the huge contradictions in it and how they unilaterally failed to meet the terms of reference set and which they themselves admitted.  It is even easier to say they bottled it and were cowards this festive season – The Noel Cowards in the title.

Yet all this perverse decision has done is bring a smile to IDS’s face and make it much harder for those appealing and more confusing for that that have and create a God almighty mess of the entire appeal process for tenant, landlord, council and tribunal judge.

Happy Noel Cowards!

 

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After drafting the above which involves much criticism of the judges I then looked at researching any information on past decisions they had made.  Oh dear the very learned Joshua Rozenberg had this to say about the chair of this UT panel Mr Justice Charles back in 2011.  Mr Justice Charles is president of the Administrative Appeals Chamber – the AAC which decided this case.  The article by Joshus Rozenberg was titled “High Court judges with poor judgement should stand down.”

In my earlier quick post on this UT case I said the judgment was inarticulate and brought a new phrase into the lexicon of bad decisions to sit with pig’s ear and dog’s breakfast, this being an elephant’s arse. That was, as the above is, my opinion yet nice to know that three years ago a fine legal mind was saying pretty much the same about the (in)ability of the President of the Upper Tribunal AAC!

In another legal blog we see this

Joshua Rosenberg has pointed out the Court of Appeal’s criticisms of Mr Justice Charles, who is apparently “the most appealed-against judge in the High Court Family Division and the one whose judgments are overturned the most”. Lord Justice Wilson said that he had spent days trying to understand the 484-paragraph judgment delivered by Mr Justice Charles, and quoted barrister Ashley Murray who had said in Family Law:

“There are certain challenges each of us should attempt in our lifetime and for most these involve a particular jump, a mountain climb, etc. Akin to these in the legal world would be reading from first to last a judgment of Mr Justice Charles.”

To which Lord Justice Wilson commented: “Mr Murray’s introductory sentences were witty and brave. In respect at any rate of the judgment in the present case, they were also, I am sorry to say, apposite.” Excellent stuff.

It would seem that any reading of the Rozenberg piece that you cant sack a judge even when their competence is questioned and questionable, you can only move them away from making high profile dangerous and legally embarrassing decisions.  You can only move them on in the hope they cause less high profile damage elsewhere – a bit like the old adage about management being applied to the judiciary – they are like a septic tank, the big chunks rise to the top!