A disabled woman who converted a bedroom in her rented housing association property into a second living room so she could have a living space separate from her carers was still liable for the higher rate of the so-called ‘bedroom tax’, appeal judges have ruled.

The Inner House of the Court of Session held that the reclassification of a fourth bedroom to a second living room, which was based on the advice of a social worker, did not affect the property’s designation for the purposes of the “spare room subsidy” under the Housing Benefit Regulations 2006.

The court allowed the appeal 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, which meant the tenant’s entitlement to housing benefit increased as a result.

Spare room

Lord Brodie, Lady Clark of Calton and Lord Glennie heard that Miss IB, an adult single woman with a severe learning disability and autistic traits who was unable to live on her own, lived with two carers in a property comprising five main rooms plus kitchen and bathroom.

The local authority, Glasgow City Council, reduced her housing benefit by 25% on the basis that she was under-occupying the rented property by two bedrooms.

But Miss IB successfully appealed that decision to the extent that the First-tier Tribunal decided that the property had three, not four, bedrooms because: “What was formerly a fourth bedroom on the ground floor was a living room at the relevant date and had been for a number of years.”

Accordingly, the first-tier Tribunal concluded that a 14% discount was appropriate as the number of bedrooms in the property exceeded by one, the number of bedrooms to which Miss IB was entitled under the regulations – a decision which was upheld by the Upper Tribunal following an appeal by the Secretary of State.

Upper Tribunal

The Upper Tribunal decided that on the facts found by the First-tier Tribunal, the reclassification 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.

Referring to the 2014 Upper Tribunal decision in SWP v Nelson and Fife Council, the judge said: “I am of the opinion that the Nelson decision goes no further than saying that normally the family designation and choice is not a relevant factor, but leaves open the question of whether or not there might be exceptional circumstances when re-designation might be appropriate…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 that this re-designation is not available to a mentally disabled person when required on profession advice, then I consider that would amount to discrimination for no rational reason.”

Error of law

However, counsel submitted that the Upper Tribunal erred in law in concluding that the actual use of the room as a living room, even when based on professional advice from a social worker, was relevant to the question of whether or not a room was a bedroom for the purposes of the regulations.

The proper approach, it was said, was to consider whether a vacant room could be used by any of the people listed in the regulations as a bedroom taking into account its physical characteristics.

It was also argued that the Upper Tribunal judge erred in raising a discrimination issue in relation to the definition of the word “bedroom”.

Counsel instructed by the guardians of Miss IB accepted that the issue was whether established use and designation were relevant factors to be taken into account in determining whether a room is a “bedroom” for the purpose of Regulation B13.

It was submitted that where use of a room was an issue, relevant factors would include the necessity or otherwise of the use, the question of structural alteration or otherwise and the landlord’s consent to such use or otherwise.

In the present case the First-tier Tribunal made their decision on facts found that, Miss IB “required her own living space because of her disability” and the Upper Tribunal was correct to give proper regard to that finding.

Further, it was argued that to reclassify a room by reason of structural alteration needed because of physical disability but not a room required because of mental disability where no structural alterations were necessary was discrimination, for which the Secretary of State had not put forward any justification.

Judgment

Delivering the opinion of the court, Lady Clark of Calton said: “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.

“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.”

She added: “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.”