HB overpayment but property later reclassified from 3 bed to 2 bed

You could argue that Reg 104 applies if the property was a two bed all along .  You could ask the Tribunal to accept the LA’s concession and go on to argue that the landlord’s designation is not necessarily determinative and the LA must take an objective approach as to whether a room is a bedroom for the purpose of Reg B13

There is a whole raft of case law on this starting with the 3JP’s decision in SSWP v Nelson and Nelson [2014] UKUT 525 (AAC)

You might well have to argue the merits of the re-classification and I would strongly advise you to get your employer to buy you the latest edition of HOUSING BENEFIT AND COUNCIL TAX REDUCTION LEGISLATION, 35TH ED WITH SUPPLEMENT from CPAG (This is the standard text used by Tribunals)

https://cpag.org.uk/shop?f%5B0%5D=field_product_type%3A589

If you are pushed for time, ask for a postponement.  Tell the Tribunal that you are not ready because of the complexity of the case.

I won’t comment on the potential conflict of interest other than to suggest that you have a look at CSHC/0729/2003

See:

https://www.bailii.org/ew/cases/EWCA/Civ/2019/1080.html

““19. There was no real dispute in this case about the purpose of the Regulations and we consider that purpose would be frustrated if a tenant who rented what was objectively classified, for example, as a three bedroom property could by his use or unilateral structural changes to the property change the classification to a two or one bedroom property.
20. … In our opinion the classification and description of a property used as a dwelling is a matter of fact to be determined objectively according to relevant factors such as size, layout and specification of the particular property in its vacant state. That classification cannot be changed except by structural alterations made with the landlord’s approval which have the result of changing the classification of the property having regard objectively to its potential use in a vacant state. Thus the classification of a property as having one or more bedrooms does not change depending on the actual needs of the occupants or how they use the rooms for whatever reason from time to time. ...
21. The issue was raised directly at tribunal level in a number of cases. A three judge panel was convened in SWP v Nelson against a background that there were a number of different approaches taken by First-tier Tribunals to the interpretation of the word “bedroom” in Regulation B13. We consider that there is merit in the approach of the Upper Tribunal to the extent that they recognised that the assessment should focus on the property when vacant rather than how it is actually being used from time to time (paragraph 28) and in their practical approach to considering what may be relevant factors illustrated in paragraphs 30 to 33. To the extent however that the Upper Tribunal entertained the possibility that the designation or choices made by family members as to who should occupy bedrooms or how rooms should be used had any relevance, we do not agree.”“

I had Hockley in mind when I stressed getting the latest edition of Findlay.

I don’t know why or how the landlord reclassified the property, but I had assumed that the “bedroom ” had been simply too small to be used as a bedroom.

I read the opening post the same way as Paul Stockton, i.e. that the LA has accepted it is a 2-bed property and has made a superseding decision to that effect from Nov 2021 because it’s the claimant’s own silly fault for not saying they had 2 bedrooms earlier.  Fair enough on the face of it ... but the LA has also made an overpayment decision relying on it being a 3-bed property.  That is inconsistent and, as Paul says, the claimant can appeal against the entitlement decision underpinning the o/p.  The case is “yes I delayed in notifying you that my non-dep had moved out, but it makes no difference because I do not in fact have three bedrooms”.

How the landlord classifies it will be just one piece of evidence taken into account by the Tribunal when forming its own view as to how many bedrooms the property actually has by applying the Nelson “vacant possession” approach.

There is a risk that the Tribunal will say it is a 3B property, and that the council will revisit the matter for ongoing HB purposes next time it has an excuse for a superseding decision - like this April.

Thank you everyone, the help is much appreciated, yes the 3rd bedroom is smaller than 50 square feet so it was reclassified as a 2 bedroom property which LA accepted but only from the date they were notified in Nov 2021 so still treat the property as a 3 bed for the overpayment period (2019 - 2021)

I think you will have a strong argument if you get the Tribunal to accept the LA’s concession but if the Tribunal does not accept it be prepared to argue the point re the size because its not just a matter of the area, much will depend on whether you could get a single bed etc in there.

You definitely need the latest edition of Findlay

As a matter of interest who is the LA in this case ?