Finally a First-tier Tribunal judge correctly interprets the Fife Upper Tribunal ruling in a decision notice handed down today in Swindon. It is refreshing to find a judge who has actually read the UT legal precedent and more importantly interpreted what it actually says. Councils and indeed social landlords need to sit up and take note.
Here is the decision notice and I comment on it below.
In overview the judge ruled that a room measuring 3.9 sq/m or just on 42 square feet was NOT a bedroom yet far more importantly it is how he came to this decision that is significant.
Paragraph 5 begins the judges reasoning and he firstly and correctly states that the councils HB department (the decision maker) CANNOT rely upon the word of the landlord. Secondly he states that the councils view that size of a bedroom is irrelevant is a legal fiction and nonsense.
Paragraph 6 the judge says the above two legal fictions are a misreading of the Fife UT ruling  UKUT 0525 (AAC) which he duly corrects.
Paragraph 7 – The landlords designation is no more than a starting point (see paragraph 30 of the UT ruling which says this)
Para 8 is where the judge applies sound reasoning and interpretation of the Fife case when he looks at size firstly in a generic context, that  of the UT ruling says that anything less than the Tudor Walters 1919 minimum room size of 65 square feet or 6 sq metres should sound a warning bell. The room in dispute here is just two thirds of that overall size at 3.9 sq metres or 42 square feet.
Significantly, the judge says, again correctly, that for the decision maker to rule any such size of room is a bedroom must say why it is a bedroom and provide reasons for such a decision. This will only apply IF the room is disputed but does means that when a room is disputed in terms of size, for example by requesting a review of the decision, the onus is on the council decision maker to say why they maintain it IS a bedroom and provide reasons why they take that view.
In other words the council that says the landlords says its a bedroom or the one that says you signed for a 3 bed therefore it is a 3 bed, is acting unlawfully. The council HB decision maker must provide reasons other than this when such a room is disputed by the tenant.
Far too many councils use these unlawful excuses to fob the tenant off and of course the reason is that the councils do not want to go to the expense of making the decision lawfully as this may need to include an inspection visit and will always include full reasons why they maintain a room is a bedroom when the bedroom tax decisions are reviewed by them. (A review is a right of the HB claimant who is the tenant.)
Paragraph 9 sees the judge, too diplomatically in my view, saying the council had adopted a mechanical approach with regards to size. Why the judge is stopping short of saying this is an unlawful blanket policy and a sham one he may well have reasons for, yet they are not apparent. This is especially the case as he council relied on the legally perverse posit that a room which can contain a mattress is a bedroom!!
Paragraph 10 provides the pertinent individual fact details.
- Not only is this 42 square feet and tiny but it is also L-shaped
- The council ignored the warning bells generally as to bedroom size
- You would struggle to actually fit a single bed in the room at all
- The normal meaning of bedroom and in reference to  of the UT Fife ruling a bedroom normally contains a standard sized single bed, space for dressing and undressing, the storing of clothes or a bedside table.
Paragraph 11, although the above facts stand alone, hammers home a further significant and individual factual point. The description of the property as 3 bedrooms was wrong and likely because it was 24% below the size of the original planning permission. Though that does reveal how thorough the tenant was in this case in her research and a major hat tip for that
Far too many decision makers – and the ONLY decision makers are HB officers at the council or sub-contractors who perform that function on behalf of the council – try to fob off tenants challenging their bedroom tax decisions.
Far too many councils staff say you signed for a 3 bed or the tenancy agreement says its a 3 bed so therefore it is and I’m sure some actually believe this nonsense and legal fiction. I’m equally sure that more know it is a device used to deter tenants from challenging and in this case the landlords is Swindon Borough Council who from a reading of the files in this case he tenant has supplied me with are dead set as dissuading any tenants from challenging or appealing their sham decisions.
Interesting too how the council as landlord built a purported bedroom 24% smaller than the planning permission too!!
Here is the floor plan of that room:
Not just a minor point but note the sizes given for a single MATTRESS of 191 x 90cm when a standard sized single BED is 200 x 90 cm – Yes that is just how devious a council can be!
So many judges at FtTs since Fife have said, wrongly, that a bedroom is a room which can accommodate a bed and that is all. So many have said that generic and specific dimensions of a purported bedroom don’t matter. Both are legal fictions and errors of law as they misread and misinterpret the Fife UT decision.
That is why it is so refreshing to find a judge who has actually read the Fife UT ruling!!
Finally, the purpose of this blog was to provide support for those tenants that their councils are fobbing off with the nonsense and legal fictions, or as I normally and correctly say, absolute bollocks, that what is and is not a bedroom is up to the landlord or what it says on the tenancy agreement. Such councils and this is the overwhelming majority deter and dissuade tenants from challenging their sham of a bedroom tax decision and do so because they KNOW they made legally unsound decisions and it will cost them an arm and a leg to do them correctly…which is precisely what this judge has said.
Here is another sneaky little trick on Swindon Councils own form for challenging a bedroom tax decision which needs revising!!
Swindon would WISH and would PREFER to give the HB claimant, the tenant, an unattributable explanation of reasons orally rather than in writing – which is the tenant’s right – and which this judge correctly says they have to provide FULL details on why they consider a room to be a bedroom.
About as subtle as a sledgehammer!!
And of course the tenant does not have to use Swindon Councils own form as the 3 separate rights each HB claimant has of (a) a full explanation of HOW the decision was made; (b) requesting a review of the decision itself; and (c) a formal appeal – can all be done on any piece of paper as long as it is signed by the claimant. It could even be done on the back of a fag packet like the legislation itself as long as it is signed!