3 July 2017, by Desmond Rutledge
In Secretary of State for Work and Pensions v The City of Glasgow Council & IB  CSIH 35, 31 May 2017 (Lord Brodie, Lady Clark of Calton and Lord Glennie) the Court of Session in Scotland considered what factors should be taken into account in establishing whether a room is a bedroom for the purposes of Reg B13 of the Housing Benefit Regulations 2006 SI 2013 (the bedroom tax).
The claimant had a severe learning disability with autistic traits. Her sister and her sister’s husband lived with her as carers. Her home was classed by the landlord as a four-bedroom property.
A First-tier Tribunal accepted that the downstairs bedroom had been converted into a living room so that she could have her own space and privacy from her carers, who used the other living room, and that therefore she only had one extra bedroom for the purposes of the bedroom tax.
The Upper Tribunal (SSWP v IB  UKUT 282 (AAC)) upheld this decision on the grounds that the fourth bedroom had been re-designated on the advice of a social worker, who had planned the return of the claimant to her home with carers. The Court of Session allowed the Secretary of State’s appeal.
Following SSWP v Nelson and Fife Council  UKUT 525 (AAC)  AACR 21, it held that the assessment should focus on the property when vacant rather than how it is actually being used from time to time.
The Court did not agree that the designation or choices made by family members (even under professional advice) as to who should occupy bedrooms, or how rooms should be used, has any relevance:
“We are of the opinion that if a room is converted by the landlord or with his consent in such a way that it can no longer be classified objectively as a bedroom, for example, if it is converted into a wet room or if a wall is knocked down between two small bedrooms to provide a larger bedroom, the result of objective assessment of the property may be that it has one less bedroom after the conversion work. That result arises regardless of whether the physical reconfiguration is done because of the mental or physical disability of one of the occupants or merely as a way of upgrading the landlord’s property or for some other reason. We would expect the landlord to reflect the conversion work in the lease terms and in the landlord’s description of the property. That may impact on the rent which the landlord is able to charge. (para 24).
It follows therefore that we consider both the First-tier Tribunal and the Upper Tribunal judge to have erred in law in concluding that the re-designation of a bedroom to a living room by or on behalf of IB with or without professional advice about that re-designation was a relevant factor. An applicant for housing benefit and the occupants of a dwelling may choose or need or be advised to use the property in a way which best suits their needs but in our opinion that is not relevant to the issue of what is a bedroom for the purposes of the 2006 Regulations.” (para 25).
The full judgment is available here: Secretary of State for Work and Pensions v The City of Glasgow Council & IB  CSIH 35, 31 May 2017