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What is a bedroom?: significant new bedroom tax challenges emerge

Another good post from Joe Halewood on the inconsistencies and inaccuracies behind the bedroom tax. Keep watching his blog for updates:

What is a bedroom?

I asked this simple question a few weeks ago and went on to ask - how can you tax something you can’t define?

It is worth another look and discussion after this report I came across today from the Glasgow Herald which says a group of organisations have received legal counsel on the issue.

It says: -

The Glasgow Advice Agency (GAA) – a consortium of consumer assistance bodies – obtained the opinion from Jonathan Mitchell, QC, who said that, while it was for a local authority to decide what was a bedroom, there was no legal definition. The only guidance uncovered was in the Rent Officer Handbook produced by HM Revenue & Customs, which “makes the important point that actual use by an actual household is usually critical”.

Mr Mitchell said it would be “going wrong in law” if a local authority determined every room that could possibly be slept in was classified as a bedroom, whatever its characteristics or use. He added: “It may be that tenants should be advised that the particular use they make of rooms may have consequences for their benefit.

“If, for example, a family with a disabled child allows him or her to use the living room as a bedroom, this may result in the property being determined to have one more bedroom than before, just as turning a bedroom into a therapy or care room, or a study or playroom, may result in a reduction in the number of bedrooms determined.”

The fact a QC agrees that there is no legal definition of a bedroom is very important to the question of how can you tax something with no definition. It means that any decision on whether the bedroom tax applies has to be a subjective one - and like any subjective decision from a public authority. it is open to legal challenge and rightly so. The entire bedroom tax decisionmaking process is highly subjective and will vary from one council to the next.

Then it goes on to say that the only guidance uncovered was in the Rent Officer Handbook produced by HM Revenue & Customs. This is worth some very close consideration and I have reproduced it in full below:

Deciding what constitutes a room/bedroom

There are no statutory definitions of what constitutes a room or bedroom, so a plain English meaning should be taken.

This again confirms there is no legal definition. We know that the government is stubbornly ruling out defining a bedroom in terms of what it is and even a definition about its size. The starting point for what must become a subjective decision is a plain English meaning - or, as I rephrase it quite deliberately, the ordinary view of a bedroom. I will return to this below as I see a huge significance in this.

The Rent Officer Handbook goes on: -

A bedroom is a room where someone usually sleeps, however they may also use it for other activities such as working. A living room is a room for sitting or eating or watching the television. Sometimes one can be used as the other, and in general lettings can take different forms depending on the nature of the locality and the type of tenant either in occupation or being targeted by a landlord.

What this describes is easy to follow - but again is hugely subjective in terms of making a decision.

My mind goes to the many recent television news reports about the bedroom tax - in particular, some adapted properties which have a lift which goes from a downstairs room to an upstairs ‘bedroom’ and renders both rooms as unsuitable for being classed as bedrooms. Yet in these cases, we have seen the local decision is that they do constitute a bedroom for bedroom tax purposes. Such a determination must be wrong and these rooms cannot constitute bedrooms for bedroom tax purposes. They cannot be rooms where someone usually sleeps can they?

You can extend that line of argument into simpler and wider-ranging applications. If a room could be a bedroom or a study and its ordinary use is a study, is it not a study? The ordinary use of a room changes over time. We no longer have a pantry or a scullery, for example, in modern day house use - yet we often see a room being used as a computer room or study (especially given that the government wishes all welfare benefit claims to be digital and the government’s digital-by-default online access for claiming welfare benefits).

In a disabled household, often a room is used as a boxroom to accommodate necessary equipment. This means it is not in its ordinary use a bedroom.

The term ordinary use is also important and again I will return to this.

Yet the Rent Officer Handbook continues: -

Under the Housing Benefit Scheme, rent officers treat bedrooms and rooms suitable for living interchangeably, Local Reference Rents are based on total number of habitable rooms (bedrooms and living rooms, but including dining rooms, some conservatories and living kitchens. Under the Local Housing Allowance Scheme, the LHA is based on numbers of bedrooms alone. Therefore it will be vital when collecting lettings information to understand precisely how the property is being let to ensure the lettings information is used correctly and not to distort the LHA.

The above has huge significance in the bedroom tax debate. The closest thing we have to a legal definition of what is or is not a bedroom states clearly that there is a key difference between how rooms are viewed for social housing (Housing Benefit) purposes and for private rented housing (LHA) purposes!

If, as the above guidance says, it is vital…to understand precisely how the property is being let for LHA purposes, then it must hold - as the bedroom tax is about placing HB claimants on a similar footing to LHA claimants - that a 3 bedroom property let to a disabled household as a 2 bedroom adapted property is a 2 bedroom property and not a 3 bedroom property.

The coalition has repeatedly compared the bedroom tax in social housing as fair as it equates with the LHA rules for private renters. Yet the above shows that for this to be equitable and ‘fair’ in the coalition or any other meaning of that term, then we must discount second living rooms or parlour rooms where it is known that some local authorities in London are classifying a ‘3 bedroom parlour house’ as a 4 bedroom property for bedroom tax purposes. [A 3 bedroom parlour house has 3 bedrooms and 2 ‘living’ rooms.]

The 3 bedroom parlour house has become a bit of an issue on social media sites - and especially the anti bedroom tax sites. Yet reading the Rent Officer Handbook, the ordinary use of such properties is as a 3 bedroom and not a 4 bedroom house.

IF A 3 BEDROOM PARLOUR WAS PRIVATELY LET IT, WOULD BE A 3 BEDROOM HOUSE. YET WHEN IT IS A SOCIAL HOUSING LET, IT BECOMES A FOUR BEDROOM HOUSE AND SUBJECT TO THE BEDROOM TAX!

Reader - can you like me see huge legal challenges emerging around bedroom tax applicability decisions?

Read the rest of the post here.

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