I was fortunate at the end of September in two respects when delivering seminars on the subject of welfare reform; firstly I had been allocated the primary subject of the bedroom tax to talk upon, and secondly I was able to report and expand on exciting news that was breaking in this field.
The First-Tier Tribunal (Social Entitlement) Chamber sitting in Kirkcaldy had heard five challenges to the decisions of Fife Council to reduce the appellants’ eligible rent for housing benefit purposes following on from the introduction of the bedroom tax on 1 April 2013. In four of those cases it effectively “declassified” rooms as bedrooms, an approach followed in London on 20 September 2013 in a case concerning the City of Westminster.
There has been much publicity since about the reasons behind the decisions, including an element of no-doubt unintended misrepresentation as to the question of alternative use of a “bedroom” and the issue of whether the Housing Act 1985/Housing (Scotland) Act 1987 size standards re overcrowding are determinative to such determinations. For the sake of clarity it is worth emphasising the basis for these non-precedent decisions:
Government Guidance – as contained in HB/CTB Circular A4/2012 – to the effect that it is up to the landlord to define and designate the property in line with the rent charged is not necessarily in itself determinative.
The bedroom tax regulations – paragraph 13(5) of the Housing Benefit Regulations 2006 – “generally presupposes that to be classified as a bedroom a room should be large enough to be appropriate for use as a bedroom by an adult – or by two children”. It is relevant to have regard to space standards.
In Ms McLeary’s case her accommodation was accepted as "exempt accommodation" and dealt with by the Consequential Provisions Regulations 2006, and as such was outside the bedroom tax provisions.
A well-established alternative use of a room which is “in reality not a matter of choice for the occupant but reasonably required for their continued occupation of the property as their home” was seen to be an attractive argument, though in Mr Thomson’s appeal not made out on the facts.
In the Westminster case the disputed room “was never intended to be a bedroom, and has never been used as a bedroom. It contains equipment necessary for the appellant to try and overcome his disability.”
The Department for Work and Pensions has indicated that it will appeal two of these decisions at least (involving space standards) and has in the meantime issued an “Urgent Bulletin” dated 23 September 2013 containing revised guidance. This says that in applying the bedroom tax local authorities should only consider “the composition of the household and the number of the bedrooms as designated by the landlord, but not by measuring rooms”.
It goes on to say that a room must be capable of accommodating “at least a single bed” and habitual use for some alternative purpose (such as storage) does not override what would otherwise be a determination of the room as a “bedroom”.
To say watch this space is an understatement but interesting times are ahead.