Grounds to appeal the bedroom tax for all 660,000 – Part 1

I strongly maintain that every one of the 660,000 bedroom tax ‘DECISIONS’ is wrong and unlawful and that every bedroom tax affected tenant has a legitimate and strong case for appeal.

I also strongly urge every bedroom tax tenant to launch an appeal after they have asked their individual council for more information on HOW they made their decision and I issued a simple template letter – the standard letter – which contained 6 questions.

The purpose of the standard letter was and is to get the relevant information from each Council rather than simply assuming what every Council did in making the bedroom tax DECISION, that is HOW they made the decision.

Once you KNOW how the Council made the decision then you can appeal against it which is the absolute right of each tenant and here I begin outlining some legitimate appeal grounds for every tenant.

In a nutshell:

(a)   The HB Officer (HBO) needs to ask the individual landlords or the tenant of the bedroom sizes.  If the HBO does not know the bedroom size he cannot make a lawful decision as it cannot be relied upon.

(b)   Then the HBO can decide whether they are a bedroom or not.  It is for the HBO to decide and nobody else.

(c)    And only then can the HBO decide whether to refer to the Rent Officer which he must do with a Registered Social Landlord property if he reaches the view that the accommodation is larger than reasonably needed. 

(d)   Then the HBO requires a determination of the Rent Officer that has assessed the property before the HBO takes the decision to then apply the bedroom tax deduction of either 14% or 25% of the eligible rent?

Therefore every one of the 660,000 bedroom tax decisions is wrong in law and against HB regulations and should be appealed and quashed making every council go back and do them all again properly taking into account the individual variables of every individual case.

I estimate this will cost local government a billion pounds at least and that to have a case by case and individual assessment and not a behind closed doors desktop exercise is the right under law and under Housing Benefit regulations of every tenant claimant.

How I came to this conclusion is detailed below and it is a complex issue that is difficult to explain to all tenants in a simple way.  Though any difficulty in understanding is entirely down to my poor articulation! Also note that I have seen some of the council responses which I will comment on separately and the first two Bury and Wiltshire both have clearly unlawful decision-making processes for the bedrom tax.

[Note that this is a long blog and is also available here in a pdf format entitled “Grounds to appeal the bedroom tax” and when you are formulating an appeal a pdf file prints out much better than a blog file and so is easier to reference]

First I explain HOW each Council must make the bedroom tax DECISION and to do this I interviewed Fred the Housing Benefit Officer.

Joe:  Hi Fred, please outline the general situation of how you went about making a bedroom tax decision.

Fred: It’s a simple 3 stage process Joe.  As the bedroom tax can only apply to a bedroom I have to

(a) take a view on what a bedroom is and how many bedrooms each property has; then

(b) decide on each claimant’s need for the number of bedrooms; and then

(c) make a decision on whether the claimant who is the tenant has the right number of bedrooms or not.  If they have 1 more than they need I deduct 14% of their eligible rent from the HB payable or 25% if they have two or more bedrooms.

Joe: Fred, it seems to me that as the housing need or (b) is an objective and straightforward exercise and it all comes down to your view on what is a bedroom and how many bedrooms each property has.  Is that correct?

Fred: Spot on, that’s it in a nutshell.

Joe: Oh good.  That’s my view too I’m glad you confirmed that as there is so much confusion and misinformation around.  What I really want to know is a simple question namely, how should Fred the Housing Benefit Officer (HBO) have made the bedroom tax decision? This is what I want to explain.  Can you take me through the bedroom tax decision-making process please?

Fred: Sure. No problem Joe.

Fred can only (a) follow Housing Benefit Regulations (HBR) and (b) has to abide by the law or legislation.  Fred is not above the law obviously.

So Fred looks at “The Housing Benefit (Amendment) Regulations 2012” which is a Statutory Instrument number 3040 of 2012 and specifically at “Amendment of the Housing Benefit Regulations relating to the determination of the maximum rent (Social Sector) and more specifically I drill down to a further sub-heading called “Determination of a maximum rent (social sector) to clauses (2) to (4) within that and…

Joe:  Fred.  Sorry to interrupt but in layman’s language please?  I want to make this as understandable as possible for anyone to read.

Fred:  Sorry Joe of course.  I look at Section 10 of the HB circular called the A4 of 2012 which is exactly the same wording in any case and this says:

“Those that are considered to be under-occupying their accommodation will see a reduction in their housing benefit calculated by a reduction of:

• 14% of the total eligible rent for under-occupation by one bedroom; and
• 25% of the total eligible rent for under-occupation by two bedrooms or more

Fred points out that it all hinges on a bedroom as the regulations are specific in that regard and not merely on a room.  That is the first key point.  This means that Fred has to make a decision on what is a bedroom.

So Fred tells me that his next step is to find out what a bedroom IS and what IS NOT a bedroom which is notoriously difficult and not a simple question. He says he turns back to A4 of 2012 which is the Secretary of State’s 48 pages of ‘guidance’ on the 7 page long HB regulations called the SI 3040.

Fred:  Joe I then see at point 12 of the A4 2012 guidance the following:

Bedroom size

We will not be defining what we mean by a bedroom in legislation and there is no definition of a minimum bedroom size set out in regulations. It will be up to the landlord to accurately describe the property in line with the actual rent charged.

Fred goes on:

There are a number of very important issues here in these two sentences.  The first is that the section itself, 12, is entitled “Bedroom size.”  That tells me straightaway that the size of a bedroom is a very relevant factor in my deliberations to decide what a bedroom IS.

Joe:  I see so despite there being no legal definition of a bedroom it does mean that the size of a bedroom however defined is something you must consider?

Fred: Absolutely.  But it is much more than that…

Joe: Sorry for interrupting please go on

Fred:  Yes there is no definition of what IS a bedroom in legislation or law but we do have a definition of what a bedroom is NOT.  The 1985 Housing Act while dealing primarily at section 326 with the ‘room standard’ and the ‘space standard’ does say that a room of less than 50 square feet CANNOT be a bedroom.  So this obviously means a ‘bedroom’ must be at least 50 square feet.  In fact if a private landlord rents out a room of less than 50 square feet or 4.5 square metres we will prosecute and we will win as the recent Reigate case shows.

Secondly the A4 of 2012 like any guidance, yet this is highly prescriptive guidance, has to be read carefully.  I hasten to add says Fred I am not patronising you here Joe, but so many have misread this first sentence of section 12.  Look at it again and read it carefully says Fred:

“We will not be defining what we mean by a bedroom in legislation and there is no definition of a minimum bedroom size set out in regulations.” (A4-2012)

Note well the wording and the choice of ‘legislation’ and ‘regulations’ as this is very significant indeed.  We know that (a) there is no legal definition of a bedroom though we have a definition of what one element of it needs to be, that is a minimum of 50 square feet and, (b) the government is adamant it is NOT going to define a ‘bedroom’ in legislation or law in simple terms.  Yet the latter part of that sentence says there is no definition of a minimum bedroom size in REGULATIONS.  It does not say there is no definition of a minimum bedroom size in legislation or law, but only that there is no definition in the Housing Benefit regulations.

No HB officer or HBO is above the law Joe!  Says Fred.

As part of the decision-making process the HBO has to consider the Housing Benefit regulations but MUST also consider the law in other words and yes that is obvious but easy to miss.  The HBO must include and consider the law in the HBO deliberations of what is a bedroom and how many each property has and that means the 1985 Housing Act.

Joe: I see what you mean now Fred.

Fred: Good I was beginning to think it was just me not being able to articulate that obvious fact.  I was then going to tell you about the legal opinion of a QC who stated…

Joe: Sorry to interrupt again Fred but I just want to be absolutely clear on that.  Are you saying that if a HBO does NOT consider the size of a claimed bedroom then he cannot make a rational decision?

Fred:  Yes precisely!  Though my official comment is no comment or you may say that I couldn’t possibly comment!

Joe:  To be absolutely unambiguous on that if a HBO makes a bedroom tax decision but does not KNOW with any certainty that a claimed 3 bedroomed property has indeed got 3 bedrooms than he shouldn’t make that decision until he KNOWS whether a property has 3 bedrooms or not?

Fred: Yes, The HBO does have to be certain yes and perhaps it is easier if I explain what normally happens with a claimant as a private tenant with a private landlord.  We ask the independent Rent Officer to make what is called a determination which is basically the view of the Rent Officer who is guided by something called the Rent Officer Handbook.  He goes to each property and assesses whether a property has 2, 3 or 4 bedrooms as we pay the private tenant the 2 bedroom rate of LHA or the 3 bedroom rate of LHA.

Joe:  I see.  So if the claimant is a private tenant then the decision is made on an individual basis based on the individual circumstances that prevail in each case?

Fred: Exactly!  And of course because a HBO has to consider each case according to the law he cannot do anything less for a social tenant as this would be a clear discrimination.

Joe: So every social tenant must have any decision made on their Housing Benefit claims done on an individual case by case basis then Fred?

Fred: Yes.

Joe: Thank you.  Can you tell me more on that as many say only a private tenancy can be referred to the Rent Officer?

Fred:  No not at all that is another of the myths that surround the bedroom tax.  As I said at the beginning a HBO must follow the law and the Housing Benefit regulations (HBR).  The regulations (HBR) are my bible says Fred and this is called logically the Housing Benefit Guidance Manual (HBGM) and I can only do what the regulations say there.

It is my job to look at the eligible rent and section to determine whether the bedroom tax deductions apply or not.  “Eligible Rent” is a specific term in the regulations and the whole of section A4 of my bible (the HBGM) is about ‘eligible rent.’  I look there and I find at A4.1440 the following:

Referring RSL rents to the rent officer

4.1440 You only need to refer RSL rents to the rent officer if:

(a)   you consider that the rent is unreasonably high. A rent does not necessarily have to be referred because it is high, or higher than for similar properties. It must be unreasonably high before a referral is necessary, OR

(b)   accommodation is larger than is reasonably needed by the claimant and others who may occupy the accommodation, including those who pay rent to the claimant.

In these cases you must have regard to all the circumstances and housing options available to the individual household.

Source: HB Reg para 3 of Sch 2 & (SPC) para 3 of Sch 2

Fred:  There is a lot here to explain Joe so please let me do so.

Firstly, I check that the source HBR paragraph 3 of Schedule 2 above is still valid and hasn’t been replaced or repealed and it has not.

Secondly, I interpret what is says and while a social rent is very rarely too high which is the first condition of which I must refer it to the Rent Office; and note the HBGM, my bible, says Fred says I need to or must refer.  Yet the second condition where I must refer to the Rent Officer says where the

“accommodation is larger than reasonably needed by the claimant…”

The essence of the bedroom tax applying to any claimant or tenant is that is larger than is reasonably needed and it is only in these precise circumstances that the bedroom tax CAN apply.

Joe: Sorry, Fred, but does that mean that Housing Benefit Regulations state clearly that the HBO would have to refer every bedroom tax case to the Rent Officer to make a ‘determination’ so that the HBO can make a DECISION on whether to apply the bedroom tax deduction?

Fred:  That is exactly what I am saying yes.  And there is another very important point you need to add to that.  The HBGM bible which says the HBO must refer to the Rent Officer if the accommodation is too large

“…these cases you must have regard to all the circumstances and housing options available to the individual household.”

So the HBO must have knowledge of ALL of the individual circumstances and give due regard to them as well as part of making the decision.

Hence even to make the decision to refer to the Rent Officer the HBO must have already reached a position on the number of bedrooms and that must involve a decision on what a bedroom is and what size each purported bedroom is too.

Joe: So you are saying then Fred that…In short the HB department of every council needs to ask the individual landlords or the tenant of the bedroom sizes.  Then the HBO can decide whether they are a bedroom or not.  And only then can the HBO decide whether to refer to the Rent Officer which he must do with a Registered Social Landlord property if he reaches the view that the accommodation is larger than reasonably needed.  Then the HBO requires a determination of the Rent Officer that has assessed the property before the HBO takes the decision to then apply the bedroom tax deduction of either 14% or 25% of the eligible rent?

Fred: Spot on! The HBO cannot determine the ‘eligible rent’ unless the HBO has gone through all of this as if he hasn’t then the HBO has arrived at a DECISION that he cannot rely upon or KNOW to be the case.

Joe: Thanks Fred that’s really useful.  Don’t worry I won’t ask you for an opinion on whether if the HBO has not done all of this then any purported DECISION is unlawful!

Fred: Damn!  I have always wanted to say “You may say that, I couldn’t possibly comment!”

Interview ends

______________________________________________________________________________

I now move to discuss the above in a lot more depth and also provide many more legitimate grounds of appeal for every bedroom tax tenant.

I start with the social landlord and social rented sector view of the bedroom size issue which they are desperate to avoid and the extract below is from yesterday from CIH Cymru/

The social rented sector view of bedroom size issue

The question being asked by anxious households relates to whether a bedroom of less than 70 square feet constitutes a bedroom (referenced from Part X of the document relating to overcrowding legislation).

CIH Cymru’s interpretation is that the overcrowding legislation is not about making a case for a bedroom not being a bedroom, but about making sure that the total number of people in a property does not exceed the permitted number (the ‘space standard’) and that children of certain ages and genders aren’t sharing (the ‘room standard’).

The legislation considers all rooms ‘available as sleeping accommodation’; that is all rooms in a dwelling excluding bathroom, hallway and, depending on size, the kitchen. So it also includes living rooms, which means that whether a second or third bedroom is less than 70 square feet will not affect a reduction in the ‘bedroom tax’ for tenants deemed to have a ‘spare room’; the overcrowding judgement is about the number of people in the home compared to the total available space, and not the availability/size of bedrooms. As such it will have no impact on the ‘bedroom tax’ penalties.”

That is the best explanation I have seen from the social landlord or social rented sector of ‘their’ view.  And I recognise that correctly CIH Cymru say it is their interpretation just as my view above is mine.

Where we fully agree is that the existing legislation which is the best we have for bedroom sizes shows that a thorough investigation is needed to determine what a bedroom is.  It necessitates a specific view as in sighting of the property in question and not merely seeing the HBO do a desktop exercise to come to a decision which is what has happened with the bedroom tax decisions across the country.  A one-size-fits-all blanket policy which sees every council fettering their discretion which is unlawful.  The discretion that has been fettered also reveals that each decision-making process ignores the HB regulations which say – if the accommodation is larger than is reasonably needed – the essence of all bedroom tax decisions – then the Rent Officer must be involved.  This also means the HBO has ignored this element of the decision-making process as to (a) eligible rent and (b) the bedroom tax application and again is unlawful because of that.

I use the bedroom size issue to highlight one issue but ignoring the regulations and not finding out enough detail on which to make the bedroom tax decision is a general appeal and unlawfulness ground for every tenant also.

Interpretations?

My view and the SRS sector view are interpretations.  Perhaps the view of a barrister holds a lot more weight and thankfully there is one by Jonathan Mitchell QC in the public domain on precisely this issue.  The relevant bit is at point 6 which says:

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

When a QC is asked about bedroom size and its relevance to the bedroom tax decision and he states “…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: – Then you need to take careful notice of that and especially if you are Fred the HBO!

When he goes on to say anything under 50 square feet cannot be a bedroom and in effect anything between 50 and 70 square feet is half a bedroom then as I pointed out the HB regulations say you must give due regard to it and Fred the HBO and his colleagues across the country also need to have done that. Yet they have not.  The process they have followed is one of a desktop exercise and a blanket one without full detail of the facts and that any decision taken in those circumstances must be quashed and the local council has to go back and do the process all over again.

The issue of ‘half a bedroom’ too is important as both the room and space standards make clear this is already a concept in Housing law through the 1985 Act as is ‘half a person’ too.  And as a tenant needs to be under occupying by one full bedroom (1.0) for the bedroom tax deduction to be made then it is of particular relevance to every bedroom tax decision.

So when the CIH Cymru interpretation ends with “…it will have no impact on the ‘bedroom tax’ penalties” then I strongly disagree with that conclusion as the bedroom size issue will definitely have an impact on the (eventually correctly decided) bedroom tax decision.

There are a host of other appeals for every tenant to the bedroom tax decision and moving away from the bedroom size issue.

Over the past two weeks I have been formulating and drafting and fine tuning many legitimate appeal grounds for all 660,000 tenants to use and readers of my many previous posts will know I have always maintained there are legitimate appeal grounds for all 660,000 and I have been in a minority on that view.  My stating that all have legitimate appeal grounds could have been seen as my bloody-mindedness or arrogance as the majority of opinion is that there will be few if any legitimate appeal grounds for all 660,000. This bedroom size issue I had only previously seen as a case by case issue or a specific legitimate appeal ground to some tenants but not all.

Yet this is no longer the case unless when you receive your council’s response to the 6 questions of the standard letter which ask how the council has arrived at a decision mention the council has the tenants bedroom sizes and considered them as part of the decision-making process, which they will not have done and one reason why question 4 of the standard letter asks “A copy of any letter or other correspondence you sent to my landlord (insert landlord name) asking for information about my property.” And question 5 of the standard letter asks “A copy of any correspondence you received back from my landlord in response to your request.”  – is to see excatly what has been sent.

The six questions in total of the standard letter as revised while seemingly reading as innocuous and simple are in fact very revealing and probing questions of relevance for every tenant as they reveal precisely what your council has done.  I stated that one purpose of the standard letter was to get confirmation of what the tenant assumed the council HBO had done such as ask the landlord for information and the landlord supplied that information which the landlord was under no obligation to provide at all!

I hadn’t previously mentioned this point before but  section 20 of the A4 of 2012 makes very clear when its opening sentence is:-

“There is no obligation on landlords to reply to a request for information.” 

So how can the HBO rely on the mere ‘word’ of a social landlord when the social landlord was under no obligation at all to provide any information!!

In summary at this point if you are a social tenant and haven’t yet submitted your standard letter requesting further information then do so.  The legitimate subsequent formal HB appeal right you have – and which I suggest is written in your own words – is:

(a)    The council has not considered the bedroom size issue in any decision making process which they have to do despite section A4 of 2012 misleading them away from that;

(b)   The council has failed to consider all relevant and potentially relevant factors in making the bedroom tax decision;

(c)    The council has simply considered this decision as a desktop exercise and has not asked the landlord or the tenant for pertinent information – bedroom sizes – upon which to make a considered decision as they must on a case by case basis;

(d)   The council has not received information back from the landlord or from the tenant over bedroom sizes which it needed to do to arrive at a decision on an individual case by case basis

(e)   The council decision is irrational and is based on irrational heavily prescribed guidance from the Secretary of State given in the A4 of 2012.

Those above 5 summary points which the tenant should flesh out make one legitimate ground of and for formal appeal.

And you can think of a few more and ALL of these are in the correct context of such a decision.  The HBO by taking away £14 pw from £71 pw of JSA / IS for example has taken these poorly considered decisions in the context of in effect placing a tenant 20% below the minimum subsistence level.  That is arguable whether it is a ground in and of itself, but it is not an emotive and even if you consider it not to be a legitimate ground (and I strongly maintain it is) then all other legitimate grounds have to be viewed in that correct context and are substantiated by that context.  I will write more about this life-changing context in the week.

Additionally I will write more and strongly suggest you include in your appeal the ‘status’ of the A4 of 2012.  Briefly, and in simple overview, guidance can be ‘mere’ guidance such as look before you cross the road, or it can be statutory or non-statutory.  All types of guidance do need to be given due regard by a public authority such as a council too.  Why this is more than ‘mere’ or simple guidance is precisely because there is no legal definition of a ‘bedroom’ on which ALL bedroom tax decisions hinge.  The A4 of 2012 fills that void.  It is also full of strong steer on the ease of administration and cost of making that decision too as is evident throughout its 48 page length.  Further that these 48 pages include process diagrams, timescales for each stage and sample letters and even ‘direction’ that an award notice cannot be sent out until after the bedroom tax comes into force.  It could never be described as mere guidance when it is 48 pages long and the SI 3040 to which it refers is only 7 pages long!

The more you look at this issue the more legitimate appeal grounds emerge is a good rule of thumb.

Another stating the obvious appeal ground is that many tenants received what I would call ‘indicative’ letters stating the decision ahead of 13 March 2013. On 13 March the regulations changed to allow fosters carers and the parents of soldiers full exemptions for one spare room and a ‘discretionary’ exemption for one spare room for a disabled child.  This left 11 days to re-consider all cases and it is highly unlikely that the HBO or your landlord would know if you are an approved foster carer or your son or daughter is in the armed forces or even severely (however narrowly defined ala Gorry case) and they have not asked you or your landlord before.  So how can any council rely on the purported ‘decision’ they have arrived at? Of course, the only answer is they cannot!

My home city of Liverpool with almost 12000 estimated cases would have needed to review or re-evaluate over 1000 cases per day.  Each case would involve finding out whether the tenant was an approved foster carer or had a child in the armed forces or had a severely disabled child and nowhere holds such information except the tenant personally.  Even if a correctly operating council realised this just the sending of a letter to you from the HBO requesting that information and returned by the tenant would take up most of this time and then like a ‘bedroom’ can anyone give me even a working definition of a severely disabled child? I strongly doubt they could so how in simple but blunt terms can ANY council have made a bedroom tax decision on which they could rely because of this very late change of regulations?  The only answer is they could not have had the time to do that.

Hence no reliable decision could have been made by 1 April 2013 by any council HBO and that is what their job is… to arrive at a reliable decision on each individual case which NO council could possibly do by 1 April 2013.  That is an obvious and easily argued and legitimate appeal ground for all 660,000 tenants.  For example to drill a bit deeper a council could not check their own approved foster carers list as an approved foster carer in Liverpool may have been approved by social services in Cornwall or Aberdeen and there is no ‘ease of administration’ way of finding this out with any form of reliability,

I also have not heard of any data sharing protocol between local government and the army, the air force and navy to facilitate a quick electronic exchange of information from the armed forces to all local councils, it would require a formal protocol be set up and agreed and then swift transfer of such information electronically.  Yes it would be quicker to write a letter which I gather will not have happened with any council in this 11 working day period.  That for me is another bloody obvious appeal ground for all 660,000.

Every tenant could draft their own standard letter for information, an additional one asking:

(a)   Please advise how between 13 March 2013 and Thursday 28^th March 2013 your decision factored in a decision on whether I am an approved foster carer?

(b)   Please advise how between 13^th March 2013 and Thursday 28^Th March 2013, this being the last working day of 11 in this period you decided that I do or do not have a child who is serving with the army, the Royal Navy and the Royal Air Force?

Alternatively and in the absence of receiving such a letter in this period from your local HB department asking for such information simply adopt these and other questions as a formal appeal ground.

I maintain my council could not have reached a decision as to the under-occupation charge applicability or bedroom tax deduction upon which they could reasonably rely as they are charged to do on a case by case basis as to whether I am an approved foster carer or not in the 11 working days between 13^Th March 2013 when the Secretary of State changed the Housing Benefit regulations via the U10 of 2013 HB circular.

I further contend that as Liverpool City Council could not possibly has given due regard to each case to consider the approved foster carer issue and that of whether my son or daughter is serving with the armed forces or indeed whether any of my children have a ‘severe’ disability, however defined, in this time period.  Hence I strongly contend the purported ‘decision’ arrived at by Liverpool City Council must be unreasonable and little more than a sham and I ask this tribunal on these bases to strike out or overturn or otherwise remove this claimed ‘decision.’

The above two paragraphs alone could well be enough to overturn the decision without any further grounds of appeal.  However, I would strongly advocate you present as many as possible such grounds claiming the decision-making process that your local council operated to allegedly reach their decision was irrational and a sham or could not possibly have taken due consideration or given due regard to your individual circumstances, potential or actual.

If one part of the decision-making procedure fails that may well be enough to say the entire decision-making process – which every tenant does have the right to appeal against – is wrong, unlawful and any decision arising from it be struck out.

That is a simple but effective and legitimate appeal ground and argument.  Two short paragraphs which are a simple but obvious example and doesn’t need any great deal of advice to see.

Simply imagine you and a colleague are say 2 HBOs working in Liverpool exclusively tasked with reviewing 11,680 bedroom tax decisions between you in 11 working days?  You have 162.8 working hours between you in that 11 days so you have 72 seconds to check each alleged decision with regard to the changed HB regulations!! 

If Liverpool had 10 dedicated staff working full time exclusively on checking every one of the estimated 11,680 ‘decisions’ down entirely to the new HB regulations brought in and announced on 13^th March 2013 then each case sees the council spend FIVE MINUTES finding out if the tenant is a foster carer or has a son or daughter in the forces and you ask whether the bedroom tax decision is reliable and should not be thrown out of the tribunal court within 10 seconds!!

The Bedroom Tax holds many grounds of appeal to all 660,000 affected and here I discuss some of them.

What is the bedroom charge decision-making process?

This is probably the most important area for appeal against the bedroom charge. Yet it is the most misunderstood aspect of the entire policy and it needs very careful consideration.  Once you understand the decision-making process then you can easily formulate an appeal to the bedroom charge decision.

At the simplest level the Housing Benefit Officer (HBO) (a) decides how many bedrooms you have, and (b) what your housing need is for bedrooms, and (c) from these two decides is you have any spare bedrooms. It has to be a bedroom not a mere room and the HBO decides what a bedroom is and how many bedrooms you have.

Even if your social landlord informs the HBO that you have a 3 bedroomed property that contains 1 bedroom or 999 bedrooms the HBO still has to decide whether to accept that social landlord view and the HBO MAKES THE DECISION.

So whether the HBO accepts your landlord’s opinion or not the HBO makes the decision on (a) what is a bedroom and, (b) how many bedrooms you have in your property.  And to take that to a ridiculous extreme, even if your social landlord enters the data on the HBO’s computer screen or directly by electronic means the HBO still MAKES THE DECISION.

So when you read that the social landlord makes the decision on what is a bedroom and how many bedrooms you have then THIS IS FALSE.

So when you read the number of bedrooms is what it says on your tenancy agreement is the number of bedrooms you have then THIS IS FALSE

The ONLY person who decides what a bedroom is and how many bedrooms you have is the HBO

Even when Steve Webb the junior minister at the DWP says in a parliamentary written answer that:

“The removal of the spare room subsidy will take account of the number of bedrooms as designated by the landlord. The number of bedrooms within a property is a matter between the landlord and tenant.”

(Hansard Citation: HC Deb, 11 March 2013, c100W)

DO NOT MISREAD THAT!  (a) Yes the social landlord is free to designate the NUMBER of bedrooms, and (b) the NUMBER of bedrooms is between landlord and tenant BECAUSE IT IS A CONTRACT.

However and whatever the social landlord ‘designates’ the HBO still makes the decision and is free to agree or disagree with the landlord’s view, opinion or account of the number of bedrooms however they are ‘designated.’

IT IS THE CHOICE AND DECISION OF THE HBO NOT THE LANDLORD FOR (A) WHAT A BEDROOM IS AND (B) HOW MANY BEDROOMS THERE ARE.

I know turn to the appeal grounds

1.  What IS a bedroom?

To be able to decide how many bedrooms you have the HBO firstly has to define what a bedroom is.  Yes that is stating the bloody obvious but with so much nonsense talked or written about the bedroom charge it needs to be stated!

This is hugely subjective as there is no legal definition of what a ‘bedroom’ is!  That in itself gives a number of major appeal grounds.

(i)  If there is no definition of what a bedroom IS, then how can the individual HBO decide? – a clear APPEAL ground on the arbitrary nature.

(ii) If the government refuse to define what a bedroom IS in legislation which is what they have said then how on earth can a HBO KNOW what a bedroom is?  If you have ever watched an American TV show you will have heard the anecdote about a US Supreme Court judge on pornography that goes “I can’t define it, but I know it when I see it!”  Yet the HBO has never SEEN your property and do how can he KNOW?  – a clear APPEAL ground

(iii) If you were a private tenant with a private landlord the HBO would ask the independent Rent Officer service to go and see and come back with a determination of how many bedrooms you have: yet the entire bedroom charge decision-making process excludes this sensible and reasonable action and has been conducted as a behind the scenes desktop exercise – another APPEAL ground

(iv) The HBO needs to follow HB regulations in making any decision and of course needs to follow the law too.  The HB regulations do allows for the HBO to refer your property to the independent Rent Officer service and if the HBO has not done this then the HBO has missed out this guidance the HBO must follow – an APPEAL ground

(v) Every council needs to have a formal policy and a transparent one for when they refer a social housing property to the Rent Officer service.  If your council cannot produce such a policy then they have made the decision in an unlawful  and opaque and arbitrary way – an APPEAL ground

(vi) Similarly every council can refer a social landlord property to the Rent Officer on only two grounds – the property is unusually expensive which is unlikely to apply to any social housing property, OR if the “accommodation is larger than is reasonably needed.” The bedroom charge policy is all about accommodation larger than is reasonably needed by definition. – an APPEAL ground

General issue – what is a bedroom?  The application of the bedroom charge necessitates a definition.  Is it a room with a bed in it?  Of course not else putting a mattress into the bath makes it a bedroom!  What we can say with some certainty is that in order to be a bedroom it must first be a room and conversely if it is not a room then it cannot be a bedroom.  A ‘room’ is not a term of art it has its ordinary meaning and choose any online or paper dictionary and it will say it is a space enclosed by walls and have a door.  This means a toilet or a pantry is a room but of course these are not bedrooms.  A classic example of this was the Janet Bell case.  A vertical lift was installed on disability grounds and during its installation the wall of the former 3^rd bedroom was removed.  This became no longer an enclosed space and no longer a room, hence it could not have been a bedroom.

Janet, as strange as this reads, lives in a 3 bedroomed property with only 2 bedrooms.

That is an important sentence as it shows correctly that a property is not the same as the number of bedrooms it holds – a 3 bedroomed property does NOT mention a property with 3 bedrooms, or at least necessarily.

(vii)  If the HBO at your local council has merely assumed that a 3 bedroomed property has 3 bedrooms and made the bedroom charge decision on that basis then that is a further TWO appeal grounds.  Firstly, it is a blanket policy as the HBO has fettered their discretion which is unlawful – APPEAL

(viii)  Secondly, a property is NOT the same as the number of bedrooms it contains as it could contain less as in the Janet Bell case or it could contain more if you have two or even three living rooms or it could contain rooms ‘designated’ by the landlord as a bedroom which are in fact not a bedroom in law – an APPEAL ground.

(ix)   Hang on if we have no legal definition of what a bedroom is how can there be a definition in law?  Simple, we have a legal definition of what is not a bedroom.  The 1985 Housing Act section 326 states explicitly a room of less than 50 square feet cannot be a bedroom.  Even as some have incredulously argued this only applies to overcrowding or over occupation and not to under occupation then remember I have said so much nonsense has been talked about the bedroom charge!  This would still be an appeal ground in any case as that highly tenuous caveat or constraint would still have to be decided by a court and not by certain housing ‘professionals’ who have stated that view that it only applies to overcrowding but not under occupation – hence an APPEAL ground

Thus far I have outlined 9 appeal grounds [(i) to (ix) above] and all relate to legitimate grounds for all 660,000 bedroom charge affected tenant households.  In short everyone has a legitimate case to appeal and appealing in itself is NOT some direct action spoiler tactic but is entirely legitimate.

The bedroom charge decision making process has more holes than Rab C Nesbitt’s string vest!

I now turn to many such appeal grounds and largely based on misdirection from the Secretary of State to the HBO as found in the heavily prescriptive HB circular A4/2012.

The A4/2012 is not ‘mere’ guidance such as look before you cross the road or do not put your hand in the fire.  It is 48 pages long and most HB circulars have less than 8 pages. It contains an incredibly strong steer from the DWP and a steer that is acutely political and misdirected; it includes examples; it includes standard letters to send out by the HBO, it includes process diagrams with timetables and so much more.  This is not mere don’t put your hand in the fire guidance, it is highly prescriptive as I demonstrate below.  Moreover, even if it is ‘mere’ guidance and arguing against myself, the HBO at every council still needs to give this ‘due regard’ in any case.

Misdirection and Sophistry

Section 12 is very revealing of the attempted clever sophistry of the DWP and it needs to be read very carefully and re-read as so many have got a false interpretation of this, and I include myself in that at least initially. It reads:

Bedroom size

We will not be defining what we mean by a bedroom in legislation and there is no definition of a minimum bedroom size set out in regulations. It will be up to the landlord to accurately describe the property in line with the actual rent charged

When you read that carefully as you must it says the landlord accurately describes the property but NOT that the landlord says how many bedrooms there are or what a bedroom is.

More importantly please note the cleverness of “…what we mean by a bedroom in legislation and there is no definition of a minimum bedroom size set out in regulations

The choice of “regulations” instead of “legislation” is very important to note as it means the Housing Benefit Regulations.  The DWP does not say there is no definition of a minimum bedroom size in legislation as we all now there is in section 326 of the 1985 Housing Act; rather it says “regulations.”

(x) The HBO needs to follow the HB regulations and of course the HBO also has to follow the law yet the Secretary of State is steering the HBO away from this Act with this sophistry and misdirection – I see this as an APPEAL ground because as you will see this ‘misdirection’ as I term it is contained throughout the A4/2012 guidance

Yet a number of other important points are also contained in those 2 simple sentences at 12.  Firstly by stating there is no legal definition of a bedroom and the government are not going to define as well, this guidance takes on an incredibly powerful ‘steer’ to the HBO.  In simple terms you haven’t no legal definition so we, the DWP and I, the Secretary of State are going to guide you in how to decide what a bedroom is!  I restate this is not ‘mere’ guidance, it is highly prescriptive and a very strong steer.

The last sentence of section 12 is also entirely nonsensical – “It will be up to the landlord to accurately describe the property in line with the actual rent charged.”

(xi)  Note the landlord describes here and not designates as Steve Webb errantly says and most definitely does not DECIDE what a bedroom is or how many bedrooms each property has…and in line with the actual rent charged!  That is an appeal ground as the Janet Bell case illustrates.  She lives in a 3 bedroomed property with only 2 bedrooms yet still – and correctly so – is charged and pays a 3 bed rent level. Yet this very prescriptive guidance tells the HBO if the accommodation is a 3 bedroomed property with a 3 bed rent level it must have 3 bedrooms!  Yet that is not the case – Hence this is another APPEAL ground on misdirection and the guidance is not fit for purpose in that sentence to add to that appeal ground too. This sentence leads the HBO to adopt a blanket policy and fetter discretion which as I said above at (vii) is unlawful.

(xii)   Section 17 of the highly prescriptive A4/2012 guidance says “It is likely that the easiest and most cost effective way to gather the required information on the number of bedrooms in a property will be to work with the registered landlords in your local authority area to gather this information, rather than writing directly to tenants.” APPEAL, APPEAL, APPEAL!!

A HBO cannot guess this REQUIRED information rather the HBO has to collate and then confirm this information before the HBO makes a decision.  To be steered away from writing to or communicating with the tenant on cost effective or ease of administration grounds when the bedroom charge can see a social tenant’s income reduce below the minimum subsistence level as a result of the bedroom charge decision is just not acceptable.  Note well that this context applies to every single ground of appeal I mention here and enhances each and every one of those appeal grounds.

(xiii)   Section 19 says “There will be claimants affected by this measure who live in significantly adapted accommodation due to someone in the household having a disability. It will not always be practical or cost effective for these people to move to different accommodation or they may have no other option for making up the shortfall in rent.”   This is another case of misdirection a it assumes that significantly adapted accommodation does NOT change the number of bedrooms.

Yet and again as the Janet Bell case reveals the vertical lift – the significant adaptation – did and does reduce the number of bedrooms.  I can also see cases where for example the smallest bedroom has been adapted into a wet room for a wheelchair user being the same situation – a 3 bedroomed property with only 2 bedrooms. This is both misdirection and a fundamental flaw in the guidance on the decision-making process – So a general appeal ground for all as well as a specific appeal ground if the adaptation renders a FORMER bedroom not be a bedroom, however defined.

(xiv) On the specific point of disability I need to add more detail.  There is a gentleman in Caerphilly that has an alleged ‘bedroom’ which in fact accommodates his plumbed-in dialysis machine.  Emotive issues aside note that the dialysis machine is plumbed-in and a permanent structure and is not (presumably) something that could be portable or ported to be by his bedside or next to him on the settee.  This is NOT the same as using a bedroom to store a wheelchair or other necessary equipment this is something which is plumbed in.  That much be a specific appeal ground that may well be enhanced by (presumably) it being sited where it is as part of a health or social care assessment.

(xv) Whilst on disability issues a few other issues spring to mind for specific appeal grounds.  The first is that as a severely disabled child is allowed a spare bedroom in the calculations (assuming the council agree) then that must apply to severely disabled adults too.  Yes the Burnip case or correctly the Gorry issue is constrained and restrictive, it must surely follow that is a child is allowed and extra bedroom then an adult in the same circumstances must also be.  If you are in that situation or even if you have medical reasons and supporting evidence that you need to sleep apart from your partner then I would appeal on those grounds.  This is more than wishful thinking or a lay view of the law.  The severely disabled child is only exempted IF the council agrees and that introduces the ‘discretionary’ exemption and gives a precedent for local councils to have discretion.

(xvi)  Secondly, it is ONLY the tenant or partner of the tenant who is allowed a bedroom for a non-resident carer.  I know a case where the 16 year-old son of a tenant needs and has, as part of his social services assessed care plan, a non-resident carer.  Yet he is not entitled on this basis as he is not the tenant or tenant’s partner.  Further as he is 16 is he a child for the purposes of the severely disabled spare room ‘discretionary’ exemption?  Moreover, as he already has a room of his own does he in fact fall between all these mandatory and ‘discretionary’ exemptions? Or does as I argue above the council have discretion to make his non-resident carer exempt?  A general appeal argument here is that if the council does not have discretion they clearly should and the guidance and policy is not fit for purpose.  If they do have ‘discretion’ then should this not be a ‘discretionary’ exemption but a mandatory one and again the policy and guidance is deficient?

(xvii)  The last part of section 19 steers the HBO to rule that only a discretionary housing payment or DHP is warranted.  Yet a DHP by definition is discretionary and time-limited yet this 16 year-olds disabilities are so severe and numerous that they will be with him for the rest of his life.  Is that an argument to launch an appeal as this appears to breach a council’s equality duties?  I would suggest so and strongly.

(xviii)      Section 20 goes on to say “In some circumstances it may be necessary to contact a claimant directly for information about the number of bedrooms in their property.” What! In SOME circumstances!!  That is again a strong steer and misdirection from the Secretary of State.  In any case what is a definition of a bedroom or even a working definition of a bedroom that a tenant is supposed somehow to know?  If there is no legal definition then how is a tenant supposed to know?  Added to that argument is the next section (21) which says “If a claimant does not reply to a request for information the local authority has the power to suspend their housing benefit under normal decision making rules.”  How the hell can a tenant know the number of bedrooms if he or she doesn’t know what a bedroom is? And the sanction for not knowing for the tenant what nobody in the country can KNOW is zero benefit!! – APPEAL!

(xix)  Sections 22 through 24 then steer the HBO to write to some tenants and ask them to confirm how many bedrooms they have…again.  How does the tenant know?  They simply cannot KNOW in the absence of any definition let alone a legal one!  If the tenant asks for a definition and the HBO says it is whatever is one your tenancy agreement then this is false and is also a blanket policy by the council and HBO – Again I see an appeal ground here

(xx)  Section 25 says:- “Once you have written to claimants informing them of potential changes to their Housing Benefit and confirming the information you hold for them, as in paragraph 22, it will then be necessary to write again to confirm change to their benefit. As an award notice cannot be sent before the legislation comes in to force, you may wish to combine this notification with the annual review letter in April to avoid multiple communications”

I could write pages on this point alone with regard to the tenant being notified of the formal award decision.  The guidance is very clear and says a council may write to you indicating what the decision WILL be but then needs to send you a formal BENEFIT DECISION NOTICE sometime after 1 April 2013.  You as the tenant cannot formally challenge the earlier indication letter as any such challenge or appeal has no basis as you can only challenge a decision and only after that decision has been notified to you. If you are one of the many tens of thousands of affected tenants in Sefton, Leeds, Newcastle, Plymouth, Wirral, Cornwall, Erewash, Bedford and so many other local authority areas with a purported Notice sent to you before 1 April 2013 then you can make that a formal appeal ground and I would strongly argue and maintain your one month appeal period can only run from 1 April 2013 and not before.  There has been a bit of debate about this as HB Regulations do allow you to be told ahead of a decision yet HB regulations also say this can involve a superseding decision (HBR 57) and this is clearly what is in mind here with section 25.  The same prescriptive guidance also restates that you can’t notify (formally) a decision until after the regulations come into effect at 35 which says: – “Once a claimant’s under-occupancy has been confirmed they should receive a change of award letter from the local authority explaining exactly what this will mean in financial terms. This cannot be done until the regulations come into force.”

So the notification issue of a ‘decision’ or purported decision is very relevant too and if before 1 April 2013 then how can the council say they have followed the A4 of 2012 guidance?

Summary

Above there are 19 pages of argument containing about 20 or so legitimate grounds of appeal for every one of the 660,000 social tenants affected by the bedroom tax purported ‘decision’ which in fact is a decision that cannot be relied upon at all.

The bedroom tax decision making process is Rab C Nesbitt’s vest – so full of holes and I would argue the process every council has adopted is irrational and so much so to make the bedroom tax decision making process itself legally irrational. Yet irrationality in its legal meaning is notoriously difficult to prove.  Despite that the poor HBO like Fred didn’t have a hope in hell’s chance of being able to make a correct DECISION at all yet that is no reason why such purported decisions should be allowed to stand.

I can only speculate what the consequences will be if all 660,000 do lodge an appeal yet they have every right to and should. I also do not hold with any argument which says this will cost local government money to have to redo all of these decisions.  Yes it will and yes it is unfair BUT is it better to let those purported decisions stand and let the poor tenant take the hit?  Of course not!   It may well cost local government £1bn to go back and correct this and yes that is a chronic waste of public money and especially to ‘justify’ a £480m alleged saving in the first place.  Whether central government have to reimburse local government for that is not my concern an certainly not the tenant’s concern either!

What my concern is and what I argue I have proved here is that the bedroom tax decision-making policy so heavily steered by central government and inflicted upon local government was so inept and so poor and so costly. I have merely commented upon this decision-making policy for what it is and critically using regulations and legislation to do that constructively and in some detail.

It is not my fault or the tenants that the bedroom tax policy is a pig’s ear or that the decision-making policy is even worse than this.  That fault and all the blame for that rests entirely with the coalition government.  If they want to impose life-changing policies on the easy target that the social tenant is then they deserve all the scorn they will get for that – as would a Labour government if they were in power. This is no political diatribe it is apolitical.

This is merely my view as an individual who despises vulnerable easy targets getting picked on by bullies such as dogmatic and incompetent governments.  Apologies if my having humanity in this way upsets you.

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