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  4. Bedroom tax assessment must look at vacant dwelling, Inner House rules

Bedroom tax assessment must look at vacant dwelling, Inner House rules

1st June 2017 | welfare/benefits

The conversion, on the advice of a social worker, of a bedroom in a housing association property to a second livingroom in which a tenant with a severe learning disability could settle in her own living space, separate from that of her carers, did not affect its classification for the purposes of the spare room subsidy, or bedroom tax, the Inner House ruled yesterday.

Lord Brodie, Lady Clark of Calton and Lord Glennie allowed an apeal by the Secretary of State for Work & Pensions against decisions of the First-tier Tribunal and Upper Tribunal that a house occupied by IB should be classed as having three rather than four bedrooms, and IB's entitlement to housing benefit increased as a result.

IB, who was unable to live on her own, was tenant of a property comprising five main rooms plus kitchen and bathroom. She lived with two carers. The local authority reduced her housing benefit by 25% on the basis that she was under-occupying the property by two bedrooms; on her appeal that was altered to a 14% reduction, the tribunals holding that the designation of the fourth bedroom as a livingroom was not a family choice or designation but was set in place by the social worker who planned the return of Miss IB to her home with carers. It was found that IB could get unsettled and agitated and wanted her own space to watch the television programmes she liked and listen to music.

Referring to a decision relating to adaptations for a physically disabled claimant, the Upper Tribunal judge stated: "I therefore see no reason why designation on professional advice for a mental health or mental disability condition could not also be one of those circumstances that a tribunal can take into account in determining whether or not a room is available to ‘be used as a bedroom’... If re-designation is limited to physical conversion only for a physically disabled person, but this re-designation is not available to a mentally disabled person when required on professional advice, then I consider that would amount to discrimination for no rational reason.”

Lady Clark of Calton, delivering the opinion of the court, noted that "bedroom" was not defined in the regulations and said that it was "essential to consider the statutory context" in interpreting it. She continued: "In our opinion the classification and description of a property used as a dwelling is a matter of fact to be determined objectively according to relevant factors such as size, layout and specification of the particular property in its vacant state. That classification cannot be changed except by structural alterations made with the landlord’s approval which have the result of changing the classification of the property having regard objectively to its potential use in a vacant state. Thus the classification of a property as having one or more bedrooms does not change depending on the actual needs of the occupants or how they use the rooms for whatever reason from time to time."

She concluded: "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 livingroom 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 [Housing Benefit] 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... In the developing case law..., the alleged discrimination focused on the additional needs for an additional bedroom because of disability and other reasons. In the present case it is not submitted that IB requires an additional bedroom."

Click here to view the opinion of the court.

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