The Bedroom Tax lead case in UT (Fife) – Decision released but its as you were!

I often call strange decisions a pig’s earhole or a dog’s breakfast but given the UT lead case decision handed down a new term enters the lexicon – an elephant’s arse!

The Upper Tribunal has handed down its decision in the bedroom Tax lead cases in Fife – and it says nothing definitive on room usage or does it give any stated definition of a minimum room size that the term ‘bedroom’ has to be.

In summary it is as you were as each case needs to be considered on the individual facts of each individual case.  It is a bit of a fudge and sets no legal precedent in terms of size or usage.  The decision is very specific to the individual facts of the two cases of David Nelson and Unnamed yet unfortunately the UT decision names Unnamed and the UT has been informed of this so a redacted copy of the decision can be put in the public domain.

More importantly the UT decided an approach on how to determine and construe the term ‘bedroom’ which is the central issue of all bedroom tax appeals, and again a huge fudge in legal terms as they compromised between the literal construction of Brutus v Cozens and the purposive construction of Pepper v Hart or Quintavalle by deciding on the approach of Lord UpJohn in Customs and Excise Commissioners v Top Ten Promotions [1969] 1 WLR 1163, at 1171.

This is truly bizarre as the main legal issue in the bedroom tax is HOW do we define the term ‘bedroom’ and how should the approach or construction of that term be decided upon.  Given that the term ‘bedroom’ was deliberately not defined by DWP it is left to the tribunals to decide what ‘bedroom’ means. Yet as you will see below the Upper Tribunal premise their decision on the basis that you cannot define the term bedroom which is frankly ridiculous

To (overly) simplify the approach was between the 1972 Brutus v Cozens way of bedroom having its literal meaning and between the DWP view that the much later purposive / contextual approaches taken in (the now discredited) Pepper v Hart case of 1992 and the R v Quintavalle case of 2005.  Yet the UT threw in the blindside flanker of the Lord UpJohn approach from much earlier in 1969 which is bound to create an arguable case for an error of law in taking that much earlier approach.  Everything in the decision flows from the premise that the UpJohn approach is the correct one.

For all the non lawyers reading this the UT decided the approach to determining what a bedroom is at [23]:

“The approach 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.”

In other words we are not going to say a bedroom has to be 50 square feet in floor space, or any other definitive and clear size ruling, and each case still has to be dealt with as above on the individual facts of each individual case.  So carry on up the tribunal as each case with size and/or usage appeal grounds will still need to be heard and this purported ‘lead’ case does not change that fact.  The decision is an elephant’s arse!

This approach is arguable in law and frankly whichever approach to the construction of the term ‘bedroom’ the UT applied would be arguable at and grounds for an appeal, remembering here that so many other FtT cases were stayed not only to this UT case bit also to the inevitable appeal case that followed

The judgment also contradicts itself in a number of areas and seems to be more about ensuring that bedroom tax cases still go to the tribunals, the same tribunals that have a massively reduced caseload as all other welfare benefit cases (DLA ESA etc) now have to go to mandatory reconsideration and the tribunals are hearing far fewer cases than they have because of this. A case of a jobs for the tribunals and justifying their existence with so many fewer cases now going there.

The Lord UpJohn citing also needs to be stated which it is at [20]

upjohntest

Following this UpJohn approach as to what ‘bedroom’ means is noticeably different to the UT definition and interpretation of it in the Bolton UT case  which summarised a ‘bedroom’ precisely on a collective number of dictionary definitions and the opposite of this UpJohn position.  Again, this opens up arguable appeal grounds and is one of many areas of legally arguable grounds that would likely see this case going to the appeal court; yet, and significantly so, this or other cases wont reach that court before the next general election even if expedited.

Yet contradictions abound in this decision and so it can be seen in many different lights.  For example para [22] just after the UpJohn approach says:

“It also follows that in most cases the decision maker’s understanding of the test and approach to its application in a given case is best provided by the reasons given for the decision (e.g. albeit in an obvious case it is a bedroom because it has room for TWO single beds and storage, good ventilation and either it has been or could be used as room in which TWO people have slept or could sleep).”

So an obvious bedroom is one that includes room and size for TWO BEDS AND STORAGE and is suitable for use by TWO PEOPLE.  Yet there is no definitive size laid down in this judgment just the assertion that a bedroom is an elephant!  And even that is a corruption of the US Supreme Court adage on pornography, I cant define but I know it when I see it.

And at [35] the decision says

“Issues as to whether a room of that size is a bedroom because it could be used as a bedroom for one child under 10, but not a teenager under the age of 16, are OUTSIDE THE AMBIT OF THIS DECISION.”

Yes another fudge and the Upper Tribunal deliberately avoid setting a precedent over what a bedroom is by virtue of size whether in square footage terms or whether a bedroom needs to include a wardrobe, chest of drawers and other furnishings.  It is a lead case where the Upper Tribunal judges go out of their way to define anything of general usage and they stick to the individual and highly specific facts of the Nelson and Unnamed cases.

A room of that size above refers to paragraph 33 which says:

“…the argument advanced by the Secretary of State before us that any room will be a bedroom for the purposes of the regulation if its floor space is big enough to accommodate a single bed (size not mentioned) even if all the sides of that bed would touch a wall or an outward opening door is absurd.”

In simple terms and in verbatim terms when the DWP legal team put this forward the UT judges said “What planet are you on!!”

Para [33] continues and will not see IDS cock crowing over this case despite the fact the DWP appeal in these 2 specific cases was upheld.  This is one reason why I am putting out this post now so that IDS does not issue any errant proclamation that the UT found there is no minimum size of any other such errant spin as is his want.

The absence of any reference to the height of a room, its ventilation, its natural and electric lighting and whether it has a window is fatal to that argument.  But assuming that when they are factored in they do not rule out the conclusion that such a room is a bedroom the consequence of that argument, namely that a person would have to get ready for bed and then jump from a passage through an outward opening door to get into bed, would have nowhere to put clothes or say a glass of water (other than under the bed where it abuts the door) shows that that description of a bedroom does not fit with its ordinary or familiar meaning.”

Ouch!!

So why didn’t the Upper Tribunal merely say a bedroom is what the Man of the Clapham Omnibus (MOTCO) would perceive a bedroom to be?  The reasonable rational man that has been around for more than a century and is a de facto necessary legal concept?  They cravenly did not do so and as in every other factor that could potentially help anyone determine was a reasonable definition of bedroom is, they scrupulously avoided doing so.

The decision contradicts itself in so many areas and no doubt some FtT judges will say it means X and others will say it means Y as it is turgid to say the least in its language as well as not being definitive use for all other cases.  It is a lead case in name only and that label is a misnomer.

This judgment leaves everything open.  It is open for tenants to continue with current appeals; decides nothing with regard to those cases stayed to this decisions; leaves open many legal arguments as to construction and definition of ‘bedroom’; it could even leave landlords with a problem as it assumes many nonsensical assertions from Lord Freud that a 3 bed property has a higher rent level than a 2 bed which is often not the case and not the case across the country.  It leaves open (and in this case has to) issues of discrimination until it too assumes the Supreme Court will hear MA & Ors.

It states that councils have to define bedroom as part of the decision yet fails to state whether it is a statutory duty on them and also fails to consider many other arguments too.  It also fails to conclude on the read across and sits on the fence with it as it does with the 1918 Tudor Walters report which it mentions then fails to decide on the point put before it – did the regulator intend that a 21st Century bedroom is smaller than that envisaged 100 years ago in homes fit for heroes to return to.

It says that all the room size pointers are indicators and indeed calls them warning bells in para [55] and says that tribunals need to provide detailed statement of reasons as to why “..the room may be too small, and thus provide the reasons why, in the particular case, either it is or is not too small.”  In other words individual fact of each individual case and every disputed room is an elephant or not!

This is thoroughly perverse as the UT finds Judge Collins erred in law for not detailing a full statement of reasons then they do exactly the same!!!

The only logical deduction is that the 3 UT judges were seeking to create enough work for the First-tier Tribunals now that so many welfare benefit cases do not go there as they are all now tied up in Mandatory Reconsideration from October 2013. Legally this decision is all over the place with some sections appearing to tighten up on room usage and room size grounds yet in others inferring that room size grounds are much more viable than room usage grounds and alluding that anything under 50 square feet in a regularly shaped room or higher in an irregular shaped one means First-tier Tribunal judges have to cite chapter and verse why they ARE bedrooms.

I am equally sure there will be 20 different interpretations of the above coming out in the next day or so and each will pick up different points and see them in a different way too.

This elephant’s arse means two things.  No definitive judgment ahead of the general election and utter chaos for all actors (tenant, landlord, councils, judges) in the meantime.

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