When is a bedroom not a bedroom?

Alexander Campbell charts the latest developments over when a room is a bedroom for the purposes of the 'spare room subsidy' or 'bedroom tax'.

Iain Duncan Smith, the Work and Pensions Secretary, could be forgiven for thinking that 2014 is not shaping up to be a great year for him. In the last month, the list of tribunal decisions freeing tenants from the so-called bedroom tax has been growing ever larger.

At the coalface: The latest decisions from the FTT

On 6 January 2014, the First Tier Tribunal gave its reasons for allowing an Islington woman’s appeal against the bedroom tax. The Tribunal held that a second room in the property should not be considered a bedroom for the purposes of the bedroom tax because:

1. It was smaller than 50 square feet and therefore below the minimum size of a bedroom for the purpose of overcrowding standards; and
2. The woman’s disabled son spends two nights a week in the property (but is cared for elsewhere for the rest of the week because of his care needs).

It is not the only decision in recent weeks to apply overcrowding legislation (sections 324-236 of the Housing Act 1985) to the bedroom tax. Just three days after the Islington decision, on 9 January 2014, the First Tier Tribunal in Liverpool held that two rooms which were too small to constitute a bedroom for the purposes of overcrowding legislation could not be bedrooms for the purposes of the bedroom tax. The Tribunal reasoned that, “under occupancy can be seen as the flipside of overcrowding”, so if a room is not a bedroom for the purposes of overcrowding legislation, no more can it be a bedroom for the purposes of the bedroom tax.

As if that was not a bad enough start to the year for the architects of the spare room subsidy, the bad news continued with a First Tier Tribunal decision in Rochdale on 13 January 2014. The Tribunal held that, despite the tenant describing his property as having two bedrooms on the tenancy agreement and Housing Benefit application, the property should be considered a one-bedroom property because one of the “bedrooms” had always been used as a dining room. The Tribunal held that the historic use of the room was determinative and took precedence over the landlord’s definition.

Defiance of the DWP

These decisions fly in the face of urgent guidance issued by the Department for Work and Pensions (DWP) in September 2013, stating: “…the only consideration [in under-occupancy cases] should be the composition of the household and the number of bedrooms as designated by the landlord.”

The guidance specifically stated that a room should be considered a bedroom, “notwithstanding that the tenant may argue that it has been habitually used for something else.”

The DWP had issued this guidance in response to a series of bedroom tax decisions last year which had defined “bedroom” by reference to overcrowding legislation and the tenant’s habitual use of the room.  Alas for the DWP it appears that that guidance has fallen on deaf ears.

The DWP has been quick to point out that First Tier Tribunal decisions do not set a binding legal precedent. However the day appears to be drawing nearer when one of these decisions will be appealed and a binding authority may be set.  Indeed news is already spreading of a recent Upper Tribunal decision which grappled with the definition of “bedroom” for the purposes of Local Housing Allowance. At the time of writing, this decision has not yet been published, but as an Upper Tribunal decision, it will be binding on the FTT, so its potential impact cannot be understated.

A victory for common sense

By and large the tribunal decisions which there have been on the bedroom tax so far seem to be a victory for common sense. In cases where a bedroom has been declassified because it has been habitually used as something else, it has invariably been a factor in the Tribunal’s decision that the tenant was reasonable in using the room for that purpose. In other words, where a tenant has been using the room is a dining room, the Tribunal has clearly been motivated by the fact that there was nowhere else in the flat suitable for this purpose.

In respect of the overcrowding legislation, it would seem grossly unfair if a room that were too small to be considered a bedroom for overcrowding purposes could nonetheless be considered a bedroom for the bedroom tax. After all it would hardly seem ideal for local authorities to be condoning people living in overcrowded accommodation.

Trouble on the horizon?

January also saw the bedroom tax make its way into the Court of Appeal, with a three-day appeal against the High Court’s decision in July 2013 that the policy was not unlawful and discriminatory towards disabled claimants of Housing Benefit (R (MA and Others) v Secretary of State for Work and Pensions [2013] EWHC 2213). As we all await the Court of Appeal’s decision, the DWP will be only too aware that a loss in the Court of Appeal will be celebrated by opponents of this controversial policy as another (and very major) nail in its already battered coffin. But as the raft of cases emerging from the First Tier Tribunal is showing, even if opponents do not succeed in getting the policy struck down at one fell swoop in the higher courts, the tribunals on the ground are showing no hesitation in chipping away at it bit by bit and limiting its application to fewer and fewer circumstances.

Alexander Campbell is a barrister at Hardwicke. He can be contactedThis email address is being protected from spambots. You need JavaScript enabled to view it..