Tuesday, 25 October 2016

Full details of first bedroom tax tribunal rulings

The first tribunal rulings on bedroom tax appeals have emerged – and Inside Housing is now able to reveal the full details.

Four out of five appeals brought with the assistance of Fife Law Centre have been upheld.

The rulings have provoked fierce debate in the sector as to the extent to which tribunals will take room size and intended use into account when assessing councils’ housing benefit awards. The rulings raise questions about the extent to which councils should rely on housing association data when deciding what a bedroom is for the purposes of the under-occupation penalty.

Inside Housing has now obtained all five rulings and has summarised the main points below.

1) APPELLANT: Name withheld upon request by claimant

The basis of the appeal:

Brought by a man living alone in his former family home, which has three rooms originally judged as ‘bedrooms’ including a ‘boxroom’.

He is disabled having lost his left leg above the knee four years ago.

He said he needed one of the other bedrooms because his sons come to stay overnight to care for him when he is in discomfort. This was accepted by the council in April – meaning he was only deemed to be underoccupying by one room.

He said he is waiting to hear from his occupational therapist about converting the ‘boxroom’ into a wetroom as his bathroom is too small for him to use.

The claimant’s legal representative argued that the boxroom was too small at 64 square feet to be classified as a bedroom – as space standards in the Housing Act (Scotland) 1987 state a room of between 50 and 70 square feet should only be sufficient for a child under the age of 10. Also, because welfare reform minister Lord David Freud has suggested tenants hit by the bedroom tax take in lodgers, the appellant argued that the room should only be classified as a bedroom if it is big enough for a lodger.

The appellant also argued that the room was needed to store equipment he needs for his disability, including an exercise bike, walking and ‘mirror’ device. He therefore argued the established use of the room was not as a bedroom.

The ruling:

Tribunal chair Simon Collins QC accepted the first part of the appellant’s argument, that it is ‘relevant to have regard to statutory space standards’. However he rejected the argument that the boxroom was needed to store equipment, saying the equipment could be stored in the second largest bedroom.

Verdict: Appeal allows

2) Appelland: David Nelson

Basis of the appeal:

The appellant and his wife live in a three-bedroom property. One room has been acknowledged as necessary for an overnight carer, as Mr Nelson is disabled. The other room, a ‘boxroom’, was under dispute.

The appellant argued the room, at 66.3 square feet, was too small to be classified as a bedroom with regard to the space standards in the Housing Act (Scotland) 1987.

It was also argued that Mr Nelson’s room is used to store equipment he needs for his disability  and therefore its established use is not as a bedroom.

Third, Mr Nelson argued that he needs to keep the bathroom door open due to his (unspecified) disability. This room faces the boxroom, which meant ‘obliging the appellant to take in a lodger would compromise the appellant’s dignity’.

The ruling:

Mr Collins again accepted the space standards argument, that the boxroom was too small to be used as an adult bedroom.

However, he rejected the other arguments, saying he was ‘not satisfied’ that the disability equipment could not be stored elsewhere in the property. He also rejected the argument about Mr Nelson’s dignity due to the door being left open, saying ‘a bedroom…does not cease to be a bedroom because the appellant is using a nearby bathroom with the door open.’

Verdict: Appeal allowed

3) Appellant: Louise McLeary

Basis of the appeal:

Ms McLeary is blind, and lives alone in a three-bedroom property owned by Kingdom Housing Association.

She was assessed as needing a three bedroom house, and receives a package of support from KHA under contract from Fife Council.

Ms McLeary’s legal representative argued that she was living in exempt accommodation, so her rent is not determined in accordance with the ‘bedroom tax’ rules in the housing benefit regulations.

Instead, Ms McLeary argued that under the Consequential Provisions Regulations 2006, exempt accommodation ‘includes accommodation which is provided by…a housing association…where that body…also provides the claimant with care, support or supervision.’

The council argued that KHA is not obliged to provide the support as it is not in Ms McLeary’s tenancy agreement, so the exempt accommodation rules don’t apply.

The ruling:
Mr Collins rejected the council’s argument, saying there is no requirement that the care provision ‘must be pursuant to a contractual obligation to the claimant’.

Verdict: Appeal allowed

4) Appellant: Annie Harrower-Gray

Basis of the appeal:

Ms Harrower-Gray lives alone in a property deemed by Kingdom Housing Association to have three bedrooms.

She argued that her property only has one room which can properly be classified as a bedroom.

The ruling:

The ruling found the property dates from as early as 1660 and may have been part of a manse. Mr Collins said: ‘It is not possible for me to say… whether any particular apartment was originally designed to fulfil any particular purpose.’

Mr Collins said one of the rooms has been used as a sitting room since at least 1996 and there is no evidence to suggest it has ever been used as a bedroom. He said another room is used as a dining room and said a third is an ‘irregular L-shape’ and has a floor area of just 67 square feet. Again, he said there was no evidence of use as a bedroom.

The council argued again that it relied on the landlord to describe the property in line with government guidance. Mr Collins said the council was entitled to do this, but it is not ‘determinative’.

Verdict: Appeal allowed

5) Appellant: William Thomson

Basis of the appeal:

Mr Thomson lives with his adult daughter in a property deemed to have three bedrooms.

He appealed on the basis the room deemed to be a spare bedroom was in fact used principally to store gardening equipment and had always been used for this purpose. He argued that he was obliged under his tenancy agreement to maintain the garden and he used the room to store a strimmer, lawn mower and hedge cutter. He claimed there was no other storage space in the property.

The council argued that it was not relevant to consider what the room was used for as otherwise claimants could get around the bedroom tax by simply using a bedroom for another purpose. Again, the council said it had relied on DWP guidance, saying it is up to the landlord to describe the property in line with the rent charged.

The ruling:

Mr Collins said he did not consider Mr Thomson’s evidence as ‘wholly credible and reliable’ and did not accept that the room ‘had habitually and primarily [been] used as a store for garden tools’.

Verdict: Appal refused

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