OPINION OF SENIOR COUNSEL FOR GLASGOW ADVICE AGENCY (HOUSING BENEFIT AMENDMENTS 1. By email instructions of 9 February 2013, I am asked for my opinion on questions relative to the imminent introduction of new underoccupancy provisions by the Housing Benefit (Amendment) Regulations 2012, published at http://www.legislation.gov.uk/uksi/2012/3040/contents/made. These will come into force on 1 April. It is unnecessary to repeat their terms and effect; as identified by agents, the critical questions are permutations of what is meant by the word bedroom in the added regulation B13 in the principal regulations (the Housing Benefit Regulations 2006). It is for local authorities, who administer housing benefit and are accordingly the relevant authorities for the purposes of regulation b13, to determine the number of bedrooms in a dwelling; so, to do so, they must determine whether a particular room is or is not a bedroom. Usually, no doubt, that will be obvious and uncontroversial. But there will be obvious borderline cases. Is a small windowless room a bedroom or a box-room? What about rooms which were originally designed as a bedroom, but are essentially used as a study or home office? Or a living room which is also slept in? 2. As in any question of statutory interpretation, the question is what Parliament meant by using the language it did. In this case, it has not answered the question by defining the word. The word bedroom is not defined or explained anywhere in the regulations or the principal legislation, the Welfare Reform Act. Nor is it the subject of an entry in Words and Phrases Legally Defined, or in Stroud s or Jowitt s Judicial Dictionaries. Searches on Westlaw show no example of statutory definition of the word, other than an unhelpful example in article 4 of the Rent Officers (Housing Benefit Functions) Amendment Order, SI Page 1 of 7
2007/2871 1 ; and they show no useful discussion of the concept, either in case law or otherwise, that I can find. We return, therefore, to considering the word as one of ordinary language. The Oxford English Dictionary gives as its relevant definition A room used or intended to contain a bed or beds; a sleeping apartment ; Chambers gives a room with a bed; a sleeping apartment. That does not answer the questions here. As a matter of ordinary use of language, a bathroom with a bed in the bath is not a bedroom, although a guest sleeps there. A living-room with a sofa-bed in it, which is frequently slept in by a member of the household, may well be regarded as a bedroom, although not everyone would call it so. In the Court of Appeal decision in Burnip v Birmingham, and indeed the cases in the Upper Tribunal which led to that, there was no controversy or discussion as to this aspect; it was common ground which rooms were bedrooms, or at least the point was not argued. 3. Because the word bedroom is a word of ordinary language, and bears no statutory definition, it is for the local authority administering the regulations to determine in any particular case whether a room in a dwelling is or is not a bedroom, as a matter of ordinary usage of the word and applying this to the facts as it sees it. This is essentially a question of fact, not law; Cozens v Brutus, [1973] AC 854 at 861: The meaning of an ordinary word of the English language is not a question of law It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved. If it is alleged that the tribunal has reached a wrong decision then there can be a question of law but only of a limited character. The question would normally be whether their decision was unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision. In the present case, the local authority is the tribunal, and its decision in this regard is accordingly one for its judgment. Nevertheless, the word is not so clear and 1 bedroom means a bedroom, except for a bedroom which the tenant shares with any person other than (i) a member of his household; (ii) a non-dependant. This is circular. 2 http://www.voa.gov.uk/corporate/publications/manuals/rentofficerhandbook/toc.html Page 2 of 7
unambiguous, in its application to given facts, that it cannot be taken further; the context and policy of the statutory provisions in issue is important; cf. Yemshaw v Hounslow, [2011] 1 W.L.R. 433, considering the meaning of the ordinary word violence in a particular context to decide whether it included verbal threats and abuse. So some guidance on this is appropriate. 4. There are two fundamentally different ways of answering the question as to whether a particular room is for the purposes of the regulation to be taken to be a bedroom. It might be answered by considering the dwelling as an empty property available for letting, so that the number of bedrooms was a given fact regardless of how the property was used; or it might be answered by considering the dwelling as it is actually used, so that the number was ultimately dependent on the use made of the property by its occupiers and the number of bedrooms is seen simply by asking how many rooms are used as such. Neither approach, however, could be conclusive on its own. In the first case, it seems obvious that if, in a five bedroom house with a combined kitchen-living room, one bedroom is fitted out as the new kitchen, the house is now a four bedroom house; so design cannot be the conclusive factor. In the second case, the owner of a five bedroom house who lives alone, so sleeping in one room only and using the other rooms for storage, could hardly say that the house is now a one-bedroom house. The question must be answered in the round, taking into account not only the design and intended use of the property but also its actual use by its actual occupiers. It is important here to bear in mind that the regulations are primarily concerned with actual use, not with design or planning considerations; so the actual use made should be the normal test. But logically the regulations do contemplate that rooms which are not used as bedrooms may nevertheless fall to be regarded as such; otherwise, regulation B13 would be meaningless. So it cannot be conclusive to ask simply, is this room being used as a bedroom or is this room being slept in. Page 3 of 7
5. Useful guidance, I think, is to be found in the Rent Officer Handbook which is produced by the Valuation Office Agency of HMRC 2. In particular, its guidance Deciding what constitutes a room/bedroom 3 is illuminating. I have found no similar publication elsewhere which seeks, as this does, to provide guidance as to real world problems such as those identified by agents. It is not, of course, authoritative, in the sense that it has not been approved by the higher courts. But guidance from this body is not to be lightly disregarded; it is the only useful guidance I have found from any independent source. It makes the important point that actual use by an actual household is usually critical; two identical properties occupied by a family in one case and as an HMO in the other might respectively be three bedroom and five bedroom houses, because that was how they were used. An authority might work out general guidance using this as a starting point, without treating it as conclusive. 6. With this background, I suggest that there are however some fairly clear criteria which might be used to determine whether a particular room is or is not a bedroom for the purpose of the regulations. The first is size. A cupboard, or a bed closet, is not a bedroom; a box-room might be. The Rent Officers Handbook suggests that, to be properly classed as a bedroom, at least a small single bed will fit into it, and in most cases it will have a window ; it elsewhere says, slightly more precisely, that anything smaller than 2m by 2m is probably best not classed as a bedroom. It is relevant, also, that the space standard of the Housing (Scotland) Act 1987, section 137 (3) and the Housing Act 1985, section 326 (3), excludes from consideration rooms of less than 50 square feet (which is 4.64 square metres) and classes rooms between that and 70 square feet (6.5 square metres) as only, in effect, half a bedroom. The only other relevant space standard I have found is regulation 8 of the Education (School Premises) Regulations 1999, which provides A bedroom for a single pupil shall be of a floor area not less than 6.0m. Putting all this together, a local authority must decide what is the smallest size 2 http://www.voa.gov.uk/corporate/publications/manuals/rentofficerhandbook/toc.html 3 http://www.voa.gov.uk/corporate/publications/manuals/rentofficerhandbook/other/p rocedures/r-roh-rooms.html#p80_746. Page 4 of 7
it would accept as a bedroom, but if it were to decide that it would not accept rooms below one of these sizes or something close to that I do not think it could be faulted. Below 4.64 square metres a room could hardly be a bedroom; above 6.5 square metres it is clearly large enough in principle, as the 1987 and 1985 Acts recognise. On the margins, it would be entitled to consider also whether a room had a window or external ventilation, because a room of this size which lacks these is clearly not as habitable as a similar room with a window. But if a room is large enough to be a bedroom, however much larger it is it will not become two bedrooms; one room can never be two rooms. 7. The next, and probably in practice most important question, is the fitting out and use of the room. This wraps up a number of indicators. Does it contain a bed? Does somebody regularly sleep there? If so, it will almost certainly be a bedroom in the absence of strong pointers in another direction, such as simultaneous use as the family living room. If not, it is significant to ask whether it is dedicated to other uses so that it could not be used as a bedroom; thus, for example, a room which is used as a study or child s playroom could normally still be used as a bedroom, while a room which is full of gym or therapeutic equipment so that there was no space for a bed could not. In the first case, it is a matter of opinion and judgment whether it is still to be described as a bedroom. If it could no longer practically be used as a bedroom, it would be surprising if it were found that it was nevertheless a bedroom for the purposes of the regulation, although an authority would in my opinion be entitled (but not bound) to decide that it was if it had been deliberately been put out of use as such to avoid the application of the regulations. Ultimately, it may not be possible to say more than that the basic character of a room is or is not a bedroom, considering its actual and potential use as such. 8. Ultimately, accordingly, this is a matter of judgment for the authority. It would be going wrong in law if it determined that it would reach its decisions with the aim of minimizing the number of bedrooms calculated so as to defeat the regulation; the consequences of the Page 5 of 7
determination are a matter of law and cannot be for the local authority to take into account. But, equally, it would be going wrong in law if it determined that every room which could possibly be slept in would be classified as a bedroom, whatever its characteristics or actual use. I emphasise that this is a matter of judgment, rather than discretion, because the ultimate question in every case is do we regard this room as a bedroom, it is not do we want to regard this room as a bedroom. 9. With this background, I can deal relatively briefly with the specific questions raised by Govan Law Centre as examples of the general issue. a) In some cases this would certainly be lawful, even though such rooms were in similarly-built neighbouring houses used as bedrooms. But the mere fact that the room is used for medical or care needs does not take it out of the description bedroom if it is used, or perhaps (this being a matter for the authority s judgment) could still be used as a bedroom. This is not really something to be dealt with by a policy in the manner contemplated, but by general guidance; a public body can hardly have a policy as to what the word should mean, as distinct from an opinion what it does mean. b) No particular adaptation is required; nor is any particular adaptation necessarily enough. The nature and extent of adaptations to a room, particularly if structural, will be likely to be highly relevant to whether a room used for therapy and care needs rather than as a bedroom might still be described as a bedroom, as explained above. c) This would not be lawful. A house with two bedrooms, 3m by 4m each, is a house with two bedrooms, even though they could be knocked into one bedroom 6m by 4m if a dividing wall was removed; the question as worded indeed recognizes that. Other than in the case of the smallest rooms, for which see above, the floor space of the property is irrelevant; regulation B13 is not concerned with the overall size or quality of a property. Page 6 of 7
d) I cannot see at present how a social landlord which is not the relevant authority for the purposes of the regulations could sensibly develop policies in this regard. It is not the decision maker. Nor would a lease which asserted that a property had a particular number of rooms free the relevant authority from its statutory duty to make up its own mind. e) I can think of no unintended consequences or adverse implications which would be likely to flow from a decision that a particular property had X rather than Y bedrooms, other than those of the regulations. f) It may be that tenants should be advised that the particular use they make of rooms may have consequences for their benefit; and these may be unexpected. If for example it seems convenient for a family with a disabled child to allow 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 if it seems convenient to turn a bedroom into a therapy or care room, or a study or playroom, this may result in a reduction in the number of bedrooms determined. For this reason, it might well be helpful if local authorities could develop and publish guidance as to how they will make decisions in such circumstances. THE OPINION OF JONATHAN MITCHELL QC 12 February 2013. Page 7 of 7