Is the bedroom tax unlawful? Yes it must and has to be!

What is a bedroom?  That’s a simple question surely for which there must be a simple answer?  Well it’s not and with the bedroom tax coming in very shortly then its a question that needs to be answered else …..How can you tax something if you can’t define it?

Yet this is the situation that will arise when the bedroom tax penalises social tenants by reducing or taxing them 14% if they under occupy the property by one bedroom and 25% if they under occupy by two bedrooms. 

By definition you must be able to state what a bedroom is before you can decide if a tenant is under occupying one or not!

Yet there is no definition for bedroom tax purposes which the government is happy to maintain but surely cannot hold and cannot be allowed to remain the case.

I wrote about this last year and I was minded of this bizarre situation again when Reigate & Banstead Borough Council issued a news release this month which has been forwarded to me today and I quote from this below:

On Friday 7 December at Redhill Magistrates Court, Mr Mohammad Sarwar, Redhill, was convicted of breaching an overcrowding notice serviced on him under the Housing Act 2004.

Mr Sarwar is the landlord of 75 Knighton Road, Redhill, which is a house in multiple occupation (HMO) where rooms are individually let with access to a shared kitchen and bathroom. One room in the property, measuring 4.5 metres squared, was deemed too small for letting in 2007. However, on 28 March 2012, Environmental Health Officers found that the room was occupied.

I have emphasised the size above and of course the news release is wrong and must mean 4.5 square metres  which is or could be 7 feet 5 inches by 6 feet 6 inches; whereas 4.5 metres squared is 14’9″ by 14’9″ which by any definition is a bedroom and quite a large one.

7 feet 5 by 6 feet 6 inches is in lay terms a boxroom and not a bedroom and as this news release says is ‘too small’ to be occupied.

Yet how many 3 bed properties being rented by landlords have the third bedroom at such small a size?  The answer is thousands upon thousands and…the tenant who rents this will be penalised and taxed by having their Housing Benefit reduced even though many boxrooms don’t measure up (no pun intended) to being classed as a bedroom.

How can you legally charge a landlord with renting such a boxroom yet penalise a tenant financially with the bedroom tax for renting one!

Yet this is the absurdity the bedroom tax holds.

As I discusses in my first article on bedroom size back in August a ‘bedroom’ is defined for houses in multiple occupation (HMO) as being at least 70 square feet or 6.5 square metres, but lets keep this in imperial measurements – it needs to be 70 square feet or 10 feet by 7 feet or any such combination that is at least 70 sq.ft. such as 9 feet 6 inches by 7 feet 5 inches – and don’t ask me why as I don’t know but so many smaller bedrooms are 9 feet 6 inches in length.

Many years back I headed up the asylum seeker dispersal programme for a Northern council and the properties under this contract had a single bedroom defined as and needing to be at least 70 square feet and a double bedroom as 110 square feet.  So if a room was less than 70 square feet is wasnt a bedroom and could not be used or classified as such.  The Reigate case I reference above seems almost certainly to be the same HMO issue – though note this definition and HMO room size applies to all occupants not just asylum seekers.

In summary if a room is less than 70 square feet then it cannot be deemed a “bedroom” and if it is not a bedroom then how can it have a bedroom TAX? You cant under occupy a bedroom if it is not a bedroom!

The government is leaving this to landlords to define says Lord Freud yet this is a farce and a legal nonsense for me too.  If your landlord says you have 3 bedrooms then that is what will decide the bedroom tax and this is a joke to put it bluntly yet this is the government’s position. Again I covered this in more detail back in my August 2012 post I mention above and I am staggered as to why we have not heard reports of a legal challenge as to what constitutes a bedroom.  Perhaps they will only transpire once a social tenant has the bedroom tax applied?

Yet in looking further into this today after reading the Reigate article above which was a successful legal challenge to the same issue – bedroom size – and resulted in legal sanction I am staggered as to why no challenge has yet been taken as we have seen challenges to other welfare reforms. With that in mind I did a quick check on Rightmove a house selling and rental site that has national coverage and oft-quoted by government ministers.

I found an ex-council house up for sale in Croxteth in Liverpool and in the particulars I noted this:

“Bedroom Three 2.74m x 2.20m (8’12” x 7’3″)”

Aside from the fact that an estate agent doesn’t know that 8 feet 12 inches is in fact 9 feet (!!!!) work out the size.  In metres 2.74m x 2.2m is 6.028 sq/m and less than 6.5 dq/m and so is not a bedroom.  In imperial 9 ft x 7ft 3 inches is 65.35 square feet and again below th 70 square feet needed to be classified as a bedroom!

Is this estate agent breaching the Sale of Goods Act or the Trades Descriptions Act?  I don’t know as I’m not a lawyer but in lay terms it would seem so wouldn’t it?

Similarly if a social landlord rents out such a property and has a tenancy agreement which says it is a 3 bedroom property is the landlord in breach of any similar Acts?

My view is that there must be an arguable legal case here.  It cannot be that if the tenancy agreement says the property is 3 bedrooms then it is 3 bedrooms which appears to be the view of landlords and especially government.  If the tenancy agreement says the moon is made out of cream cheese anyone?

Or this “Bedroom Three” above could be rented or sold as such to me or you but is not big enough to rent to an asylum seeker!!  Yes the Daily Mail would love that and would so embarrass the government wouldn’t it?  Imagine the poor 55-year-old widow who has lived in a 2 bed council house for 30 years and brought up her children there who have now flown the coop.  She has made that property her home, her family home, has invested so much time, money, effort and love into that house …and is now going to see her Housing Benefit reduced by 14%.  In a same sized property that would only be suitable for 1 asylum seeker!!

The ‘bedroom tax’ is a farce and is a legal farce and nonsense.  The asylum seeker would not be penalised and yet if the asylum seeker was granted full refugee status and remained in that property the former asylum seeker would then be hit by the bedroom tax!!!

That is government policy!!!

To save re-reading my August discussion I have reproduced what I said then about the coalition position below which also references the comments of Lord Freud.

“I am staggered that there has been no legal challenge to this to determine for the purposes of HB deductions what is a bedroom?  Back in May in an interview with Lord Freud he was adamant the government were not going to define what a bedroom is.  He said: –

Lord Freud is adamant that the government will not define what a bedroom is for the purposes of the policy. ‘It is up to landlords to determine that and they are perfectly capable of doing that,’ he says, speaking slowly and deliberately. This has led to concerns that landlords could reclassify large numbers of properties to allow tenants to avoid the tax – a move which will reduce rental income. Some fear this could breach existing lending agreements and lead to legal challenges from tenants over what constitutes a bedroom.

Lord Freud says: ‘My own expectation is there will be a bit of it [reclassification] but it won’t be a widespread, wholesale move because it has income impacts.’

On the point about legal challenges, Lord Freud, pauses, choosing his words carefully. ‘I’m clearly not expecting that outcome and I’m expecting landlords to act appropriately and smartly,’ he says.”

In summary this is not about how social landlords or estate agents have oversold or mis-sold a property it is about the coalition welfare policy of the bedroom tax (and like all others they have ‘sold’ this on the basis of ‘fairness’ too!) which places landlords between a rock and a hard place.  It’s your problem not ours is the coalitions strategy, we are just going to take money away from and tax social tenants with this legal fiction and back of a fag-packet policy.

In my view the bedroom tax is distinctly unfair and I would argue unlawful without a definition of what is a bedroom.

UPDATE Thursday 24th January 2013

The above post has been viewed by more people than any other blog I have issued and by some way and all in 4 days.

Part 2 of this series in which I look at more potentially unlawful aspects of the bedroom tax is here

Part 3 of this series in which I explain the private rented sector dimension which will add cost to the welfare bill and see tenants crammed into ever smaller accommodation is here

Part 4 released today reveals how the bedroom tax will cost the public purse billions of pounds more per year and is here

Part 5 why social landlords have massively mishandled the welfare reform issue is here It also states that if they continue along the wrong path they have chosen and dont engage tenants and see them as people not ‘bricks and mortar’ that when the overall benefit cap and Universal credit come on stream later this year they will really be in the ….

Part 6 is here – how to get around the bedroom tax

Part 7 is here – that HA tenants have less rights under the bedroom tax than council tenants and HAs may be acting unlawfully in the bedroom tax and showing more of the perversities of the bedroom tax and that the government have misled when they say there is no minimum bedroom size (its only been around since 1935!!)

Interesting quirk is that a council tenant could get a lodger only to find the room they’re renting out is not a bedroom which is a criminal offence.  The council their landlord could proscute them for this…and then evict them for this criminal offence as they have breched their tenancy conditions!

Part 8 is here – Where I let all the new readers of this blog know that the overall benefit cap to be introduced this summer is far more punitive than the bedroom tax

Part 9 is here – Which challenges the government view that the bedroom tax is fair?  If it is fair to penalise a tenant for a spare bedroom or spare bedrooms, then why does this government REWARD owners with £1.4bn per year for keeping bedrooms spare?  Even whole houses empty?

Part 10 – is here and likely to be the most important in any challenge to the bedroom tax as the bedroom tax DOES affect pensioners to the tune of £75m per year – THE most powerful lobby in the country will not stand four square behind its unfairness and lobby against it.