Stevenage Borough Council v ML (HB)

For the bedroom-tax provisions in regulation B13, whether a room is a bedroom is not determined by its current use or by its suitability for an adult alone. The question must be assessed by reference to any occupier within the categories specified by the regulation. Statutory and non-statutory standards concerning space, overcrowding and houses in multiple occupation cannot be imported to construe Housing Benefit Regulations 2006 regulation B13. In particular, standards directed to actual occupiers cannot supply a test for hypothetical future occupation, and non-statutory guidance has no statutory force. On remittal, the tribunal must apply the factors identified in SSWP v Nelson [2014] UKUT 525 (AAC), including whether the room can accommodate a single adult bed, bedside table, clothes storage, and dressing and undressing.

The claimant occupied social-sector rented accommodation and received housing benefit. The local authority reduced his benefit by 14% under regulation B13 of the Housing Benefit Regulations 2006, on the basis that he under-occupied the dwelling by one bedroom.

The First-tier Tribunal allowed the claimant’s appeal. It found that a small room with a sloping ceiling was not a bedroom, having regard to its use as a store room, its unsuitability for an adult, and standards concerning overcrowding and houses in multiple occupation.

The local authority appealed. The central issue was whether those considerations justified treating the room as outside regulation B13, notwithstanding SSWP v Nelson [2014] UKUT 525 (AAC).

1. Appeal allowed. The First-tier Tribunal erred in law and its decision was set aside.

2. The tribunal had adopted considerations which SSWP v Nelson [2014] UKUT 525 (AAC) showed were legally mistaken. Current use of a room is not determinative. The bedroom question must be considered in relation to any occupier specified in paragraphs (5) and (6) of regulation B13, rather than solely an adult. Legislation on overcrowding cannot be used to construe regulation B13.

3. The claimant’s reliance on the Housing Act 2004, the Housing Health and Safety Rating System, and LACORS guidance did not justify departing from Nelson. Those materials did not prescribe room sizes. Their space and overcrowding provisions depended on actual occupiers and could not be applied to hypothetical future occupiers. The guidance had no statutory effect. Provisions concerning houses in multiple occupation were irrelevant because the dwelling was not such a house.

4. The Upper Tribunal declined to substitute a decision. In view of the sloping ceiling, it was concerned that the factors in paragraph 31 of Nelson had not all been considered. The case was remitted to a differently constituted tribunal. It must consider those factors, including whether the room can accommodate a single adult bed, bedside table, clothes storage, and space for dressing and undressing.

• Upper Tribunal (Administrative Appeals Chamber): the local authority’s appeal was allowed. The First-tier Tribunal’s decision was set aside and the case remitted for rehearing by a differently constituted tribunal.
• First-tier Tribunal: allowed the claimant’s appeal against the local authority’s housing-benefit reduction decision of 1 March 2013.