Last week I said that Simon Collins QC who is deciding the first bedroom tax appeal in Scotland had issued some very encouraging opening remarks around the bedroom tax decision making process. I said this gave encouragement to those who had already appealed and gave just cause for everyone that had not appealed to appeal. The judgment was delivered today and it was even better than I hoped for as not only is room size a critical issue so is room usage and so is the original and actual purpose of a room as is usable floor size.
In the simplest terms councils need to know all of these before making the bedroom tax decision and they cannot simply rely on the landlords word. Here is a concise overview of this very significant judgment:
- A landlord tells the council its a 3 bed property.
- The council imposes the bedroom tax on the single tenant.
- Tenant appeals to tribunal on process grounds
- Tribunal finds the property is a 1 bed and
- Tribunal directs council to pay back the bedroom tax it has deducted.
The tribunal also ruling that the council was wrong to take the landlords word as determinative, that room size matters, room usage matters, room purpose matters and even further that it is not just the floor space in terms of room size but usable floor space too!
Note well that this is not Scots Law and therefore different from the law in England & Wales before the naysayers dismiss it as such; this is a First Tier Tribunal that could have taken place in Liverpool or Cardiff and it applies nationally.
The judgment confirms that all 660,000 should appeal on process grounds and even adds to it with the usable floor space issue and with the room usage issue which I have also advocated as being legitimate cause and grounds for appeal.
It seems clear that the QC heading this tribunal had the long standing housing law and Rent Act precedent in mind of Prout – v – Hunter (1924) which I have also advocated is significant and pertinent to the bedroom tax decisions, though it is not mentioned by name.
So my long advocated strategy of appealing the decision making process has been upheld and was used in this significant case and proven but enough of my gloating and I told you so attitude, let’s look at the issues that have emerged which are relevant to all bedroom tax appellants.
The first 6 paragraphs outline the process taken by Simon Collins QC and the meat on the bones begins in paragraph 7 when he concludes that the property is a 1 bedroom and not the 3 bedroom property the landlord said it was!
Paragraph 8 then states the landlord Kingdom Housing Association informed Fife Council the property was a 3 bedroomed one and Fife Council merely took the landlords word for this as all councils have done nationally. He says the council is entitled to take this approach of believing the landlords word but it is not determinative which is the same as his opening remarks I reported here which said it is not up to the landlord but is a decision for the council.
Paragraph 9 disappoints me as I wish the Tribunal had seen the data transfer between landlord and council but as it appears this was not needed. The council had told the tribunal the landlord said it was a three bed property and it is clear that what data Kingdom Housing gave to Fife Council was NOT revealed to the court; it was merely accepted as being fact and it was not disputed.
My disappointment is because the courts should see the very flimsy data passed to councils from social landlords as I revealed in the post of a social landlord and Bury Council in Greater Manchester. I have also attached that again below and the relevance of that meagre data transfer between landlord and council to determine and then impose the bedroom tax deduction is a key issue
Paragraphs 10 through 14 sees the tribunal discuss the original purpose of the property and while this specific property is highly unusual dating back to 1660, the issue of the original purpose is an interesting and significant one. It also contains some very significant points about room usage.
The original purpose and the room usage points ARE EXTREMELY SIGNIFICANT and especially in light of the meagre data which was transferred to councils by social landlords and HOW councils acted upon this data in imposing the bedroom tax deduction on the tenant with such meagre data and failed to process this data into information. Data needs to be processed to become information and especially meaningful information. Data on its own means nothing and only becomes relevant when it is processed into real information.
Yet councils across the country imposed the bedroom tax based on landlord supplied data and not on the facts of each case – the real information. I cannot stress how important this is and have repeatedly made the point which the court backs up in looking at the original purpose and at room usage and then at 14 and 15 on room size.
Councils merely asked landlords for their word on the number of bedrooms. They did NOT ask landlords for the original purpose of each room or for the room usage or for the room size of each room in the property, they merely asked for the (landlord view of the) number of bedrooms!
What the tribunal is saying here is that merely asking the landlord for their view on the number of bedrooms is not sufficient and not enough data upon which to make the bedroom tax decisions they did!
In simple terms the decision making process was and is a farce and is legally unreliable – the precise points I have been making all along.
I make my final point of the room size issue as stated in the final substantive paragraph number 15.
- The tribunal ruled that a room of 67 square feet is NOT a bedroom.
- It discusses usable floor space and concludes this is relevant!
- It has never been used as a bedroom (an issue that will provide some hope to those appealing a purported bedroom is a storage area for disability equipment or some other ground of appeal on room usage!)
- It may be possible to fit a single bed in but it is not a bedroom!
- The room is not fit for use as a bedroom or should be classified as such.
In summary this is an incredibly important legal judgment which shows that (a) room size, (b) room usage, (c) original purpose, and (d) usable floor space are all relevant issues that should have been considered by a council when making the bedroom tax decisions.
An appealing judgement if ever there was one!
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The judgement
An example of the meagre data (Bury) – Note well landlord not asked on room size, room usage, original purpose, present purpose etc – As I have argued all along how the hell can the bedroom tax be imposed on this meagre data sent from a landlord who has a vested interest!! All decisions to impose the bedroom tax based on such flimsy data reveal the decision-making process to be a farce and that view confirmed above
SPeye Joe (Welfarewrites) 
This is magnificent Joe and a big thank you for the explanation of the court decision and for highlighting the relevant points on which to appeal. Even though the original benefit decisions were made in April, can all tenants still appeal now?
If tenants can appeal now, I wish to get the ball rolling with our Group as soon as possible. To avoid duplication of work, have you drafted a template letter of appeal that I can copy?
Keep up the great work Joe.
Regards
Jeanette Traynor
Kirkby Community Group
Yes, every tenant can appeal now
Joe
It would be useful if you had a ‘pro forma’ appeal form !
Cheers
Leonard
Interesting… From reading it I would also suggest that the issue of “dining room/granny rooms” being counted as “a bedroom” is also arbitrary, and as such its “actual and sustained/substantive use” could be used to appeal.
The fact that usable floor space is an issue is also important, and I believe is also set out in legislation (not HA/1985, but can’t remember the act) so rooms abutted by stairs, built in cupboards etc. should have the usable floor space determined by the minimum ceiling height.
Its a shame that no part of the determination was based on the HA/1985 specifically (unless I miss read it), but it does raise hope that it can also be used in other appeals.
I would also like to thank you for your work on this matter as well Joe.
Reblogged this on The Greater Fool.
Is it ok to reblog with credit/link to you, on Changing More Than LIghtbulbs website?www.energyroyd.org.uk.
Joe
I’ve now read the full judgement and I think you are reading into the judgement more than is there. Might be a case of “wishful thinking”. Some of the things you claim just weren’t said and this is borne out by the appellant herself in an earlier post. Sorry but we just can’t proceed on the basis of what you “think” the judgement says but strictly only what it actually says.
I may go into this is a little more detail if you wish.
A great article Joe! I’m sure many more of our members will be appealing now….thanks!
Pam
why is there always one who has to bwe negitive think possitive the world would be a better place
I am not sure this is the answer for everyone – it seems to rely on the original intended use for the rooms. The full facts of the case are not included in the article – it looks to me as if it was a house that was converted to a house in multiple occupation at some point and then was converted back again. I do think that it raises a lot of really interesting potential grounds for appeal.
The judgement doesn’t for example say simply that a room of under 67 ft of useable space is not a bedroom because it goes on to say that, in this particular case, there were issues with natural light and the shape of the room and again it mentions the ‘established use’ and the intended use.
I think the judgement has some good points about what can reasonably be classed as a bedroom. They could provide grounds for people who have overnight carers and/ or who need rooms for equipment. If someone was given an extra bedroom for the express purpose of storing medical equipment, would they have a strong case for saying that the intended use of the additional room was not as a bedroom?
I also think that there’s good news in the argument that the council should not just take the landlord’s word for it about the number of bedrooms.
Another interesting part is where the judge refers to the solid fuel stove vented through the window. Although the judge doesn’t really say anything about this, he has raised the possibility that there may be a ground for appeal where there’s a stove – or maybe even a boiler – contained within a bedroom
Thank you for all the comments above and I have received many more directly. I will be putting out another more detailed post in the next few days as to what practical significance this has and also discuss a few more pints not picked up in comments here. For example in terms of the bedroom that is no longer a bedroom the judge also said at 15 that “I do not accept that overall IT IT REASONABLY FIT for use as a bedroom..” That has significance as does the point at 14 when he says “I do not consider that it could appropriately be used as a bedroom”
Hence what is ‘reasonably fit’ and what it “appropriate” use?
The prime significance of this very welcome judgment is that this case was decided on the FACTS of the individual matter and did not allow or entertain the generalised council decision making treatment of what is a bedroom and how many bedrooms the property has to be left at the opinion of the landlord and accepted as such by the council. Each property is different and so each case must be assessed individually. Yet the judge said that is was acceptable, in pragmatic terms, that councils chose to simply believe the landlords as to check each individual property would have been excessive in cost terms. So the ONLY way for me to ensure that every property is assessed individually – as it should be – is for every tenant to seek a review of the decision and / or appeal.
This judgment opens up the grounds for room size, usable floor space and room purpose or usage and that later point will be very significant indeed for the many disabled households that do use ‘boxrooms’ as necessary storage for defibrillators, dialysis machines and so many other necessary pieces of equipment and argued that this is the substantive use of the room and the ‘normal’ use of that room.
Finally – tenants have nothing to lose by appealing and to do so is at minimal cost to them. Regrettably councils did not seek out the facts of each case and every tenant deserves and has a right to have their individual cases dealt with on the individual facts of their case and not merely assumed or fudged or subjected to the farcical decision making process that councils undertook (which stems form the woeful and in my view inadequate and irrational guidance issued to councils by the DWP in the A4/2012 HB circular.
Reblogged this on HUMAN RIGHTS & POLITICAL JOURNAL.
Reblogged this on HUMAN RIGHTS & POLITICAL JOURNAL.
Annie Harrower-Grey was kind enough to offer me shelter when I was homeless earlier in the year, however Emmaus Sheffield offered me a place and I did not have to take up her offer. We stayed in touch and I was able to advise her and make suggestions to strengthen her case in the early stages of her appeal. As an ex housing officer I noted at the time that what is commonly termed the ‘Bedroom Tax’ is referred to in the legislation as the ‘Spare Room Subsidy.’ I was thus concerned that the case would fail because it was based on whether the room could be classed or used as a bedroom.
Perhaps therefore the significance of the case is that it recognises that a room must be fit to be used as a bedroom, however if the term spare room is applied,a disabled person using the room for storage of essential equipment could not attract the charge because the room is not spare.