The first tribunal rulings on appeals in regards to bedroom tax have emerged, confirming that four out of five have been upheld. The appeals were held in the Social Entitlement Chambers within Kirkcaldy on 26th August 2013 and have been reported by Inside Housing recently.
The appeals were largely based on room size and intended use of the rooms. These issues were to be considered by the tribunals in relation to assessing councils’ housing benefit awards.
Two of the five appeals were allowed on the basis that the ‘spare’ rooms were considered too small to be used as an adult’s bedroom. The rooms were 64 square feet and 66.3 square feet and therefore fell short of the 70 plus square foot guidance which has been detailed necessary under the space standards in the Housing Act (Scotland) 1987.
The successfulness of these arguments highlighted the little understanding which those who have implemented these restrictions have of how they will work in practice. Welfare Reform minister Lord Freud had suggested that tenants hit by the bedroom tax should take in lodgers. In these appeals the appellant argued that the room should only be classified as a bedroom if it is big enough for a lodger and, as these rooms would only satisfy the space requirements for children, they were therefore not suitable to be used to take in lodgers, highlighting that dealing with bedroom tax issues is not as black and white as Lord Freud may think.
Within these two appeals there were also other arguments put forward in relation to the rooms being used as storage for disability equipment, however this aspect of the appellants argument was not accepted by the tribunal on the basis that the equipment could be stored in another room. This decision had further consequences and led to one of the appeals, which was based solely on the fact that the ‘spare’ room was being used to store gardening equipment and had always been used for this purpose, being refused.
The third appeal was in relation to a disabled lady who lived alone in a three bedroom property owned by Kingdom Housing Association. She was assessed as needing a three bedroom house, and received a package of support from KHA under contract from Fife Council. It was argued that she was living in exempt accommodation, so her rent was not determined in accordance with the ‘bedroom tax’ rules in the housing benefit regulations. Instead she 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 the tenancy agreement, so the exempt accommodation rules don’t apply.
Thankfully the council’s argument was rejected by the tribunal confirming that there is no requirement that the care provision ‘must be pursuant to a contractual obligation to the claimant.’
The fourth successful appeal was in relation to determination of rooms for a building which dated from as early as 1660. This case has recently been blogged on by our Joanne Murray at: Three bedrooms or one?
These cases have shed some supportive light for those in the housing profession, and those tenants who feel that they have been unfairly hit by the bedroom tax. Although these are decisions within the Scottish Government and are first-tier tribunal decisions, therefore carry no legal precedent to bind English courts, they are at least showing that there is possible hope for a tenant who claims that their ‘spare’ bedroom is in fact nothing of the sort. Although this is not something which will be able to be decided by the county courts within possession proceedings, it may be argued at a first hearing that an adjournment is needed for the appeals to be started, buying the tenant some extra time... although considering that the longest adjournment is 56 days, I hold no high hopes that this will be resolved by the following hearing.
Watch this space...
By Victoria Jordan, housing law team