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Neutral Citation Number:	2014 UKUT 525 AAC
Reported Number:
File Number:	CSH 41 2014
Appellant:	Secretary of State for Work and Pensions
Respondent:	James Nelson and Fife Council
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	26/11/2014
Date Added:	08/12/2014
Main Category:	Housing and council tax benefits
Main Subcategory:	payments that are eligible for HB
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2015] AACR 21. Housing benefit – maximum eligible rent – under occupation – whether size the determinative factor in determining whether a room was a bedroom – relevance of legislation on overcrowding The appellants were brothers, each of whom received housing benefit (HB). In both cases the council decided that they were occupying three bedroom properties and reduced their HB under regulation B13 of the amended Housing Benefit Regulations 2006 (the Regulations) for under occupation. They successfully appealed against that decision to the First-tier Tribunal (F-tT) which held that the third room in each case was too small to be a bedroom under the statutory overcrowding provisions of the Housing (Scotland) Act 1987 and that Parliament would have clearly stated in the Regulations if it had intended the overcrowding provisions to be disregarded. The Secretary of State appealed against that decision and among the issues before the Upper Tribunal (UT) was whether the F-tT had correctly determined what constituted a bedroom for the purposes of the Regulations and whether it had given adequate reasons for its decision. Held, allowing the appeals, that: 1. the F-tT’s conclusion regarding Parliament’s intentions ran counter to the well established approach whereby, when Parliament enacted a statutory test that used familiar and ordinary English words but did not define them, the court construed the meaning by looking at the mischief at which the Act was directed and then considered whether as a matter of common sense and every day usage the facts of the particular case brought it within the ordinary meaning of the words used by Parliament: Customs and Excise Commissioners v Top Ten Promotions [1969] 1 WLR 1163 (paragraphs 19 to 23 and 54); 2. the underlying purpose of regulation B13 was to reduce the under occupier’s benefit entitlement. The relevant test focused on the availability of rooms usable as bedrooms by those people listed within sub-paragraphs (5) and (6) (listed people). Essentially it involved an assessment of the vacant property (not how it was used). The landlord’s description for letting purposes provided a starting point for designating rooms within a property. Arguments over whether a room should be classified as a bedroom would be answered by its description, the reason for its categorisation and how similar rooms were used elsewhere in the area. Arguments over whether a room or space was suitable as a bedroom for a particular listed person required several factors to be considered, including (a) size, configuration and overall dimensions, (b) access, (c) natural and electric lighting, (d) ventilation, and (e) privacy (paragraphs 24 to 35); 3. the F-tT erred in law when deciding that the size of a room, in particular its floor area, was the determinative issue. The 1987 Act and the Regulations differed in their intent, approach and underlying purpose and these differences were such that it was wrong to transport only some elements of the 1987 Act into the application of regulation B13. The 1987 Act did not have the consequence that of itself the use of a room below the relevant size was an offence, while a room with a floor area of 50 square feet was more or less left out of account (paragraphs 36 to 49); 4. the UT’s conclusions did not preclude a decision-maker from having regard to size for different purposes. However, the differences between two statutory regimes meant that the only effective relevance of the overcrowding provisions was to provide cross checks that indicated that a room may be too small and thus the need to provide reasons to justify the decision why in each particular case the room was too small or not (paragraph 55); 5. each step of the F-tT’s reasoning process was wrong in law, including its reliance upon paragraph 63 of Circular A4/2012. Assuming that the Circular was an admissible aid to the construction of regulation B13, or relevant evidence for ascertaining Parliament’s intention, the UT did not see how it supported the F-tT’s conclusions when read as whole (paragraphs 57 to 61).
Decision(s) to Download:	[2015] AACR 21bv.doc