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New bedroom tax court decision says councils decide what counts as a bedroom

06 June 2017

Disabled person’s own use of a room is not relevant to the issue of whether it is a bedroom for bedroom tax purposes.

In a disappointing new judgment, the Court of Session in Scotland has ruled that the classification of a property as having one or more bedrooms is not related to the actual needs of the occupiers.

A First Tier and then an Upper Tier Tribunal (in CSH/734/2014) upheld a disabled claimant’s bedroom tax appeal because one downstairs bedroom was no longer a bedroom as it had been especially converted to a living room for her.

In doing so, Upper Tribunal Judge Agnew explained that the claimant was someone with a severe learning disability and autistic traits and:

“… can get unsettled and agitated and wants her own space to watch television programmes she likes and listen to music.

She has a television in her bedroom but does not use it.  She has carers who call twice a week to take her out and spends some time in her living room with them.”

Glasgow City Council Social Work Services had also stressed that both the claimant and her carers would benefit if she had a separate lounge to use for the above therapeutic purpose and carer support and privacy.

As a result, Judge Agnew held that whether a room is a bedroom is a question of fact to be decided in light of the circumstances pertaining to the case at issue:

“I found it credible and reasonable that the appellant required her own living space because of her disability and was satisfied that due its long-established use as a living room, the room in question had ceased to be a bedroom.”

However, in Secretary of State for Work and Pensions against The City of Glasgow Council and IB [2017] CSIH 35, the Court of Session has upheld the DWP’s appeal against Judge Agnew’s decision.

This is on the grounds that the correct legal test is not what use is made of the room, but whether the room could be used as a bedroom looking at the property as if it was vacant:

“In our opinion, in a disputed case in the first instance it is for the local authority who is responsible for administering the housing benefit system to come to a decision objectively about the classification of the property offered for rent in its vacant state.  

That may involve taking into account, for example, the number of rooms, their size, layout and function as living/dining space, kitchen, washing/toilet facilities and what other space is available.  This may include deciding whether a room is suitable to accommodate a bed with, for example, sufficient space, height, light, privacy to be classified as a bedroom.  The classification decision is not dependent on suitability for occupancy by more than one person. 

… 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 [Housing Benefit General] Regulations.

We consider that our approach to the interpretation of the word “bedroom” for the purposes of the 2006 Regulations does not raise any discrimination issue. “

 For an overview of the bedroom tax see our Bedroom Tax factsheet