- If you have already appealed the bedroom tax then use the Fife judgments to hone and bolster your appeal grounds.
- If you haven’t already appealed then use the Fife judgments to start an appeal.
- If you want to stop your landlord evicting for arrears then launch an appeal against the bedroom tax
Those are the three messages that come out loud and clear from the Fife judgments.
While these are only a First Tier Tribunal cases and of themselves in isolation not legally weighty, in context they are incredibly significant and the two points above are what they mean, the third is a not so obvious but very valid consequence and impact. To appeal costs nothing except some paper and printer ink and all bedroom tax tenants have nothing to lose by appealing and the Fife judgments contain so many legitimate grounds of appeal for so many bedroom tax tenants – those reasons are why appealing is and has to be a no brainer.
Here I discuss why and how they give so many grounds of legitimate appeal and why and on what grounds tenants should appeal and these I call the Fife Principles.
A great many want the bedroom tax policy to fail. Social tenants want it to fail as they see it as unfair and pernicious. Social landlords want it to fail as it is hammering their finances and now universally being seen as an attack on social housing itself and they appear much more hasty to take arrears evictions than before the bedroom tax which for their finances is an obvious strategy (though not excusable for many.) Local councils (of all political hues) want it to fail as it is a huge financial risk to them and in many ways a transfer of financial risk to local from central government.
Lawyers, correctly, state that First Tier Tribunals are not legally binding or a legal precedent. In isolation that means there is little significance yet no decision of which there is wide public awareness can ever be seen in such narrow terms or isolation. The AHG case did two things in reality. Firstly, its decisions on room size, usable floor space, room usage and more which I termed the ‘Fife Principles’ bolstered existing appeals on these grounds. Secondly, the Fife Principles gave hope and encouragement to those who have not yet appealed to appeal. In very simple terms if AHG can win on room size and room usage arguments then why can’t I? Add in that appeals are a right and cost next to nothing to submit the decision to appeal becomes obvious and a ‘no brainer.’
Yet a valid consequence is that appealing will likely defer arrears eviction cases with a bedroom tax element from being heard until after the tribunal has ruled and so social landlords may have to put up with 5 or 7 months more of rising arrears. and I outline this view at the end.
The Chartered Institute of Housing (CIH) who have always been against tenants appealing sought to downplay the significance of the AHG case by saying it is a 17th century property of unusual layout and that modern standard layout properties would not see a similarly successful appeal. Yet there were 4 successful appeals that have come out of Fife and all of them were successfully appealed on either room size or room usage or both and on the appropriateness of a specific room being deemed a bedroom. All of these other three properties were modern and had ‘standard’ layouts and so the CIH view is woefully weak and stated in ignorance of the facts of all the cases. And let’s not forget that the social landlord “clumsily” converted the 17th century property and its unusual layout is not a throwback to 17th century building ‘standards’ but was and is a pig’s earhole of a conversion in the last decade from a landlord who insisted it was a 3 bed property when in FACT – a key term – it is legally a 1 bed property.
The real significance is that existing appeals will be bolstered and have a greater chance of winning and new appeal claims will be encouraged by the ‘Fife Principles’ to which I now turn.
I do so because they require more discussion as to what they may mean and also to show how tenant may use them to make an appeal and noting that each case should and needs to be determined on the FACTS of each individual case.
The Fife Principles
- Minimum room size (actual)
- Minimum room size (usable)
- Room usage (substantive)
- Room usage (historic)
- Appropriateness and fit for purpose
- Blanket policy and fettering discretion
1. Minimum room size (actual)
In the DN case the judge ruled that a room under 50 square feet cannot be a bedroom and a room measuring 50 – 70 sq/ft is in essence half a bedroom and cannot be used for a lodger and is only a bedroom for a child under ten years of age. This is the same as the 1985 Housing Act on overcrowding and mirrored in the 1987 Housing (Scotland) Act.
Specifically DN’s alleged third ‘bedroom’ of 66 square feet was ruled NOT to be a bedroom, though presumably would have been deemed a bedroom is a child under 10 years of age lived there.
Note well that the ‘half a bedroom’ issue would mean the property is a 2.5 bed one and the significance is that the bedroom tax can only be applied if the tenant under occupies by one or 1.0 bedroom. A 2 bed housing need sees the tenant under occupying by only 0.5 of a bedroom in a 2.5 bed house which is less than 1.0. The significance of seeking such a similar ruling by appealing or if councils choose to adopt this unilaterally is significant as 81% of bedroom tax tenants, 540,000 of the overall 660,000 tenants are said to under occupy by 1 bedroom according to official DWP figures.
IF such a ruling was universally accepted then potentially 540,000 households could in theory at least be taken out of the bedroom tax if their smallest (bed) room measured less than 70 square feet. I would hazard a guess that up to 25% of social properties have the smallest bedroom at less than 70 square feet of actual floor space and because most 3 bed 5 person properties have the single (bed) room measuring about 9 feet x 7 feet or so and in the range 62 to 68 square feet. So 130,000 to 165,000 households could be taken out of the bedroom tax by the room size issue – very significant indeed.
2. Minimum room size (usable)
In the AHG case the judge ruled out a purported bedroom of 67 square feet of actual floor space and said it had much less usable floor space. This is intriguing as it opens up the prospect of a room measuring more than 70 actual square feet being deemed to have less than 70 square feet of usable floor space and ruled not to be a bedroom.
For example a room measures 75 square feet yet has a built-in wardrobe or built-in airing cupboard. The wardrobe may be 4 feet wide and 18 inches in depth and so even when closed takes up 6 square feet of floor space. This takes the usable floor space down from the actual 75 to 69 square feet of usable floor space and even less when opened allowing for the doors. So any built-in or design feature which reduces usable floor space and takes it below 70 square feet could give a ground of appeal.
In additional the AHG case had an ‘L’ shaped room so look at the crude example below and ask if area A usable?
The substantive part of the room and purported bedroom B can fit a bed and any other ‘essential’ bedroom element such as a wardrobe and chest of drawers. Yet area A is redundant as it is an access to the rest of the room and so should area A be considered usable floor space? It may be or may not be ruled in that way at appeal.
That is a very crude and simple example but that is the purpose. Each bedroom tax property will differ in terms of layout and each bedroom tax affected tenant needs and deserves to have their individual case determined on the individual FACTS of each case. The problem with the bedroom tax decision-making process is that councils relied upon the bedroom number piece of data landlords sent to councils in the landlords view. But as the AHG and DN case show above legally both of these landlord-held 3 bed properties are a 1 and a 2 bed respectfully in law, or at least for bedroom tax purposes.
Note well here that councils only asked landlords for number of rooms and not room size or room usage or any other issue and so councils made all of the bedroom tax decisions on just one of the necessary facts on which to make the decisions. The original decisions for me have always been a sham.
3. Room usage (substantive)
What is a room used for, mainly or its substantive purpose? Look online at estate agents and you will often see a room described as a study/bedroom – a room can have a dual purpose or even multi-purposes. If you look at the council decision in Welwyn Hatfield you will read the Tory councillor say any room under 50 square feet is not a bedroom it is only suitable for say a computer room and that is its ‘substantive’ purpose or at least one example of its substantive purpose.
As well as the Fife AHG judgment I would also draw attention to Prout v Hunter 1924 a longstanding housing law precedent and part of the Rent Acts. It says in lay terms three things (a) that decisions need to be based on fact; (b) that the decision is based on fact as they were at the time of the decision; and (ii) the use a room was put to or room usage. This precedent has been used and upheld many time over the years and still stands as a good precedent.
We see in the Fife judgments that the key issue is not what the landlord says or what decision the council made based on what the landlord said, but is the FACTS of each case individually. This is part (a) of Prout v Hunter above.
The timing of the decision we know as bedroom tax decisions were taken between June 2012 when A4/2012 guidance issued and before 31st March 2103 the day before the bedroom tax policy came into being. So what relevance does a tenancy agreement have that was signed 20 years ago? Many landlords have argued that the tenant signed for a 3 bed in 1993 so it’s a 3 bed for bedroom tax purposes. Yet Prout v Hunter says it is what the property is and was at the time the bedroom tax decision was made.
Think back to the Janet Bell case where a 3 bedroomed property had only 2 bedrooms at the time the decision was made as a vertical life had been installed which took out the wall of the former 3rd bedroom during installation.
AHG signed for a 4 apartment 5 person property which the landlord said was a 3 bed property yet the judge ruled it was a 1 bed property – the tenancy agreement is not sacrosanct at all. This is part (b) of Prout v Hunter.
The judge in AHG ruled that the purported bedroom was a dining room and kitchen preparation room and not a bedroom as that was its substantive (and appropriate) use and also what it was reasonably fit for. It was also its historic use too and this is the third element or (c) of Prout v Hunter.
While the judge did not mention Prout v Hunter I doubt it is coincidence that all three elements of this longstanding precedent were borne out in the AHG judgment.
I want to go back and discuss point (b) more – the facts at the time the decision were made as this requires much deeper consideration. The few cases that have gone to appeal or are in the pipeline awaiting appeal to be heard all contain a standard defence strategy from the councils; the bundle of papers they send to the tribunal include the last ‘x’ number of years of HB forms the tenant has signed to say they live in say a 3 bedroomed property. The council argument presumably being the claimant (the tenant) has repeatedly said by their own hand they live in a 3 bed and so now saying it is a 2 bed or a 1 bed is disingenuous.
Yet the number of bedrooms in a social housing property has never before been an issue, neither has the veracity of what the tenancy agreement says been an issue, AND how is a tenant expected to know what a bedroom is or how it is defined when we do not have a legal definition! And then there is Prout v Hunter from almost 90 years ago which says the decision needs to be based on facts at the time the decision was made.
Added to that what are the FACTS? The AHG case has the landlord saying it was 3 beds as FACT, the council agreeing the 3 bed was FACT yet the tribunal ruled the FACT was it was a 1 bed. How is the tenant supposed to know the FACTS on this council ‘ignorance of the law is no defence’ strategy? Ironically it is the same councils who are ignorant of this law as well or say like they say of the 1985 Housing Act on overcrowding that it doesn’t read across or apply yet the judge here ruled that room sixe matters do!
What has always been the case for me is that the process was a nonsense and a sham and to uphold the expediency of that sham decision making process, councils, landlords and landlord bodies such as the CIH lambasted and berated myself and other commentators who said they may apply but it is up to the courts to decide. These naysayers were adamant and dogmatic in repeatedly dismissing even the possibility that room size issues could apply. Now the Fife judgments reveal they are very pertinent issues and ones the tribunals ought to consider. Get ready for some FTT cases which support the Fife judgments, some which go beyond them and others which rule against them and maybe some which look at factors not discussed here too. In other words a total dog’s breakfast! I now turn to the extremely interesting and significant room usage arguments the Fife judgments upheld and brought much more into play.
4. Room usage (historical)
AHG used one room (or apartment) as the dining / food preparation room and has historically done so and this room has a historic, substantive and appropriate purpose as such and was ruled by the judge. Another Fife case of a blind lady saw the ‘spare’ purported bedroom being used for her Braille equipment and also for her guide dog to sleep – The historic use and substantive use and purpose was not a bedroom.
If a disabled tenant uses a ‘spare’ purported bedroom to store equipment or any other associated ‘disability’ use and the tenant or even child of the tenant has been disabled for some time, then the substantive and historic use of that room is as a store room and not a bedroom becomes the argument at appeal and a successful argument here in Fife.
As it is said and unchallenged that 420,000 of the 660,000 bedroom tax households contain a disabled person this route of challenge is hugely significant and the Fife judgments provide a huge fillip for such appeals. In theory room usage arguments could take two-thirds of households out of the bedroom tax and so we see room usage either substantive or historic being a key appeal ground and a legitimate one as the Fife Principles uphold that line of argument.
While I suspect there may be many creative arguments raised in appeals over room usage each case will be judged on the FACTS of the individual case and that is only right and proper. It will not see 420,000 successful appeals and nowhere near that amount yet there will be a huge number of disabled households where the purported bedroom is legitimately a store room and not a bedroom and they all deserve their individual facts heard and decided upon which they can only do by asking the councils to review their decisions again in light of the Fife Principles and failing that at appeal.
5. Appropriateness and fit for purpose?
The judge in the AHG case said of the purported bedroom which he ruled to be the dining / food preparation room, as a door led to the tiny kitchen, would have been inappropriate to be considered a bedroom because of the kitchen needing to be accessed through it.
That makes sense and is perfectly reasonable in both access terms and historic and substantive use. Yet can other so called bedrooms be inappropriately designated? The answer to that is yes on many grounds which have been discussed before in simple terms such as an ‘L-shaped’ room. If access to one bedroom is only through another bedroom then it is not a bedroom. If the so called bedroom has a gas fire in it or certain type of gas boiler or gas water heaters then the Health & Safety Executive guidance on this means they are inappropriate to be deemed bedrooms.
The question tenants must ask themselves in regard to appeal is why would this room be considered inappropriate to be deemed a bedroom?
What the Fife judgments do is open the doors for appeals on the appropriateness of a room being deemed a bedroom. It captures old arguments of appeal such as a gas fire but also brings in new and not previously discussed arguments such as proximity and access to a kitchen and its purpose and usage.
Note well that the judge said that just as it is unacceptable and wrong for a council to class a room as a bedroom because it could be, it is also unacceptable for the tenant to reclassify a bedroom as a games room or any other ‘creative’ or nebulous argument.
6. Blanket policy and councils fettering their discretion
One of my longstanding arguments is about the decision making process which I call a sham and with good reason. Councils simply accepted the landlords (vested interest and third-party) word out of expediency and cheapness of cost and then applied the bedroom tax deduction on that basis. This sham process was ubiquitous and universal and was a blanket or one size fits all policy. Yet the councils had other choices and so in operating a blanket policy fettered their discretion which is unlawful and makes the process a sham. The AHG case is revealing as paragraph 8 says:
“In this case the landlord had notified the respondent (the council) that the appellant’s (the tenants) property was regarded as having three bedrooms. Even accepting that the respondent (the council) was entitled to take this approach and was not obliged to inspect every property for itself, it was not suggested that the landlord’s classification was determinative.”
In plain English the landlord told the council it was a 3 bed and the council accepted that, though could have chosen not to accept the landlords view, and the landlords view is at best just an opinion and doesn’t decide the issue. Oh and the council did not admit to the tribunal that they merely took the landlords view as they knew legally this would be a blanket and ergo unlawful policy!
Fife Council has indeed been clever here in not admitting they merely took the landlord’s word as if they did it would likely have been seen as a blanket policy. However, I drafted a standard template letter which was widely used by tenants across the country to ask councils HOW they took the bedroom tax decisions. Tenants from across the country received responses to these reasonable questions and many sent copies to me. These DO all reveal that council’s merely took the landlord’s word as to the number of bedrooms and acted on that data by imposing the bedroom tax: Some say that they simply took the landlords word precisely. So we have a record by their own hand that almost every council did simply take the landlord’s word as determinative and operated a blanket policy and fettered their discretion unlawfully.
I also asked what information councils asked landlords for and what they received back from landlords. Again I have a record of this and councils ONLY asked about the number of bedrooms and did NOT ask about the so-called bedroom room size, actual or usable, and did NOT ask landlords for room USAGE or room APPROPRIATENESS.
In simple terms councils made decisions not on the full FACTS but on one purported fact alone and as we have seen in 4 of the Fife cases those purported facts as to bedroom numbers were wrong and the landlords word CANNOT be relied upon as being factual and even if it was factual and valid as to bedroom number the councils failed to consider room size and room usage and appropriateness. All of the 660,000 bedroom tax decisions are a SHAM.
However, it is now up to each individual bedroom tax tenant to show the bedroom tax decisions were a sham and the appeal route via the social security tribunals provides that route
In summary, the Fife judgments open up huge areas of appeal and tenants should challenge their bedroom tax decisions. So what should tenants do now?
They can ask their local council to review the decision and stating why e.g. so called bedroom is less than 70 square feet and refer to the Fife judgments. The councils may decide to agree or may decide that a review is out of time. This means the only option is for the tenant to appeal.
In very practical terms the tenant can ask the council to review its decision stating the reasons why (called grounds) and state should the council choose not to review or consider a review or fail to change its decision then the letter is to be considered an appeal. The council will write back with its decision to the tenant which can be (a) too late for review and they have forwarded to tribunal for appeal; or (b) they wish to come and inspect ahead of reviewing the case; or (c) they consider it out of time for review or appeal yet have forwarded this to the tribunal to decide whether or not to hear the appeal.
On that last point new appeals will be legally out of time to compel the tribunals to hear. However the Fife judgments and the Fife principles must have substantive legal merit to be heard as they have already been upheld by the Fife tribunal. Some cases may not be heard because they are deemed out of time by the tribunal yet I strongly suspect as they will have substantive legal merit that they will be heard by the tribunals.
As I restate the tenant has nothing to lose and everything to gain by appealing and they would be silly not to appeal.
One significant factor is that given social landlords are seeking evictions created wholly or in part by the bedroom tax much more quickly to minimise their potential losses, the fact that a tenant has appealed is likely to see any arrears eviction case taken by social landlords adjourned by the district judges until after the tribunal (another court) has ruled as the arrears amount claimed in the eviction case cannot be relied upon as fact until the tribunal has ruled.
That for me is of huge significance for tenants and especially for social landlords as the Fife judgments will deny social landlords their current strategy of what seems to be a hasty rush to evict for arrears and will force social landlords to rethink.
For more detailed explanation on why bedroom tax arrears are only theoretical ones and why a judge will have no option but to adjourn an arrears eviction case see my post here from April.
Finally inform your landlord that you have appealed the bedroom tax too. If they then present an arrears eviction to the court before the bedroom tax appeal has been heard and they know you have appealed the judge is likely to give the landlord short shrift for bringing an eviction case which the judge will see as a waste of court time. Would it be wrong of you the tenant to ask for the landlord to pay your costs in such circumstances too? No of course not!
Landlords are going to have to change their strategy on the bedroom tax and evictions. The power to change that lies in the hands of the tenant; appeal and they have to change; do nothing and being evicted and homeless and roofless at Christmas is a real possibility.