The Secretary of State for Work and Pensions v Hockley & Anor

The Court of Appeal considered the meaning of "bedroom" in Regulation B13 of the Housing Benefit Regulations 2006, as amended, and whether entitlement under B13(5) must be assessed by reference to rooms that can accommodate the particular claimant or by reference to rooms that could be used as bedrooms by any of the listed categories of person. The court held that the size criteria operate objectively and by reference to a room's capability to be a bedroom for any of the listed categories, not by reference to the particular claimant's circumstances. The Upper Tribunal's decision, which had adopted a subjective approach tied to the particular occupants, was quashed. The court relied on the statutory language of B13(5), the objective operation of the size criteria as a proxy for need and the statutory purpose of limiting housing benefit for under-occupation. The judgment discusses and places the decision in the context of earlier authorities including Nelson, the Court of Session decision in IB and the Supreme Court decision in Carmichael.

Background and parties: The Secretary of State for Work and Pensions appealed a decision of the Upper Tribunal concerning application of the size or bedroom criteria introduced into the social rented sector by Regulation B13 of the Housing Benefit Regulations 2006 (as amended). The first respondent (RH) and her family lived in a property described as having three bedrooms. The local authority applied B13 from April 2013 and reduced their housing benefit on the basis that the family had one excess bedroom. RH appealed to the First-tier Tribunal. The case progressed to the Upper Tribunal, which allowed the appeal, and the Secretary of State appealed to the Court of Appeal.

Nature of the application/relief sought: The Secretary of State sought to quash the Upper Tribunal's interpretation of Regulation B13(5) and to establish that a "bedroom" is to be assessed by reference to whether a room is capable of being used as a bedroom by any of the listed categories of person rather than by reference to the particular claimant's ability to use that room as a bedroom.

Issues framed by the court: The court identified the key issue as the "connection issue": whether a room must be classified without reference to the particular individual (objective test) or must be capable of being used as a bedroom by the actual occupants or class of occupants (subjective test). The court also addressed related arguments about statutory purpose, the appropriate methodology for applying B13, and discrimination arguments in the context of Carmichael.

Material facts: RH lived with her husband and two sons (born December 2004 and December 2006) in a tenancy described as three bedrooms. Two of the rooms were small; the FTT found the small rooms were not capable of sleeping two people. RH and her husband slept in the double room and each boy slept in one of the small rooms; there was no spare room. The local authority applied B13 and reduced housing benefit. RH applied for a discretionary housing payment which was initially refused but later granted for the duration of the appeal.

Court's reasoning: The court analysed B13(5) and concluded that the regulation uses the listed categories as depersonalised proxies to determine entitlement to bedrooms. The assessment is objective and should be performed by reference to the property in a notionally vacant state. The statutory language does not permit severing a claimant’s entitlement from the characteristics of the categories listed in B13(5); rather the proper inquiry is whether a room is capable of being used as a bedroom by any of the listed categories. The court rejected the Upper Tribunal's approach which introduced a subjective inquiry tied to the actual occupants. The judgment considered and distinguished other decisions: it found its reasoning consistent with the UT decision in Nelson and the Court of Session decision in IB, and it treated Carmichael as addressing discrimination questions and the scope of justified distinctions under the Convention but not changing the objective approach to defining a bedroom under B13(5). The court noted the purpose of the regulations is to quantify benefit entitlement (using bedrooms as an imprecise proxy) and to promote efficient use of social housing stock; mismatches can be mitigated by the discretionary housing payment scheme.

Disposition: The Court of Appeal allowed the appeal, quashed the Upper Tribunal's decision and held that RH was entitled to a two-bedroom property for the purposes of Regulation B13.

The appeal was allowed. The Court of Appeal held that under Regulation B13(5) a "bedroom" means a room capable of being used as a bedroom by any of the listed categories of person (an objective assessment), not a room capable of being used as a bedroom by the particular claimant. The Upper Tribunal erred in law by applying a subjective test tied to the actual occupants; its decision was quashed and RH was found entitled to a two-bedroomed property for the purposes of B13.

Appeal from the Upper Tribunal (Administrative Appeals Chamber), decision of the Upper Tribunal in this matter [2017] UKUT 471 (AAC). Prior proceedings included a First-tier Tribunal decision concerning suitability of rooms which led to the Upper Tribunal appeal. The case reached the Court of Appeal on the Secretary of State's appeal against the Upper Tribunal's interpretation of Regulation B13.