As I stated a few days ago bedroom tax appeal wins on room size are becoming the norm, a bit old hat. Yet more and more room size reasons and nuances within them are becoming apparent. The Liverpool case used the Housing Act 2004 / HHSRS / Council duties to rule a purported bedroom out on not being big enough. Below is a room size win from Bristol for which the full statement of reasons was received this week and this combines room size with room usage and room fit for purpose – all of which the judge combines into one.
I also reproduce this for another reason – the judge specifically states the landlord’s word is NOT definitive – and the SoR is worthy for that reason alone as this has been a long-held myth expressed by landlord and councils throughout the bedroom tax to prevent tenants appealing.
This case was taken on two reasons – size and the appellant looks after her grandchildren as a kinship carer because of issues of domestic abuse with her daughter and her daughters partner. The other issue being where do the children reside and that matter was found against the appellant though she may appeal that and hence the statement of reasons below deals with just the room size issue.
This is the first statement of reasons I have seen which states categorically that the landlords number of bedrooms the tenancy agreement says is NOT DEFINITIVE.
“An unscrupulous landlord might describe as a bedroom a room or perhaps a cupboard” says the judge at 42 after stating “Nothing in the legislation makes the landlord’s definition definitive” and indeed we only have to look at the bedroom tax guidance (A4/2012) at paragraph 20 when it says the landlords were under no obligation whatsoever to provide any information to councils for bedroom tax purposes.
The judge here correctly does not hold with the commonly held myth that only a private landlord could be unscrupulous but not a social landlord. I am not saying social landlords are unscrupulous, rather that premise is blatantly discriminatory as a landlord of any form could be unscrupulous.
The judge stating the landlord’s word is NOT DEFINITIVE is significant as while the early Fife judgments and many since have ruled a 3 bed is a 2 bed property none have stated specifically that the landlords word is not definitive.
Many tenants have been put off appealing the bedroom tax by their landlord and primarily by councils who have said you signed for a three bed therefore it IS a three bed property, end of! That has never been the case as a tenancy agreement like any other contract can be wrong in law yet it has not stopped councils telling tenants that the tenancy agreement is definitive when it is not.
Then at paragraph 43 the judge states categorically that a ‘bedroom’ MUST be usable as a bedroom which the judge defines thoroughly at paragraph 44 and I repeat that here with emphasis: –
“So, a bedroom MUST be a room capable of being used by a single adult, a couple or two children for the normal uses of a bedroom, that is, for sleeping AND for clothes and personal effects….It must be fit for normal full-time occupation.”
The capable necessity is a room usage and a room fit for purpose argument as well as room size – size being one of the constituents of what comprises a bedroom.
Very significantly indeed is the normal use of a bedroom the judges describes for sleeping AND for clothes and personal effects. I have seen a few UT” forms recently which is the form used only by DWP to appeal and in each one they say a bedroom is a room with a single bed in it and refer to their U6/2013 HB circular which says this. The same U6 of 2013 says the landlords view of the number of bedrooms IS definitive also which the judge has thrown out here too: –
4. This bulletin is to inform LAs that when applying the size criteria and
determining whether or not a property is under-occupied, the only
consideration should be the composition of the household and the
number of bedrooms as designated by the landlord, but not by
5. In determining whether or not a room is a bedroom the landlord may
consider a number of factors, but one of these must be whether or not a
room is large enough to accommodate at least a single bed. Where this
is not the case, the landlord should reassess whether or not that room
should be classified as a bedroom and ensure that the rent correctly
reflects the size of the property
What the judge has done here is show the U6/2013 HB circular to be what I said it was when it was released – a bizarre knee-jerk reaction full of legal fiction.
Also note that the last sentence of para 5 of the U6/2013 guidance is a nonsense. The DWP has an incredulous view that all 2 bed properties are cheaper than all 3 bed properties in terms of rent and the landlord does NOT have to reclassify and does NOT lose rental income in cases such as these. This is because the average difference nationally between a 2 and a 3 bed is £5.97 per week and the LA has no powers to (a) reduce the rent when (b) the rent is not unreasonably high – which is the case here and in all social housing cases.
This judgment should both encourage more tenants to appeal and finally remind landlords and councils that a tenancy agreement is NOT a Ronseal one – What a bedroom is and how many bedrooms a property has is determined by fact and by law and NOT by what it says on a tenancy agreement.
This judgment will also bring succour to tenants who have already won at FTT and now face the DWP attempting to appeal those decision and using the U6/2013 criteria of a room is a bedroom if it can fit a single bed in it. That bizarre view of the DWP could see a room of less than 16 square feet being deemed a bedroom!
Yet the real significant issue here is the judge stating so categorically that: –
NOTHING IN THE LEGISLATION MAKES THE LANDLORD’S DEFINITION DEFINITIVE!