Category Archives: Uncategorized

Tribunal judge directs council to inspect and measure a purported bedroom

A very interesting Directions Notice has been issued by a bedroom tax tribunal judge in Kent.  In essence get off your backside and measure the purported bedroom has been issued to the council.

adjournftt

I have no more information on this other than what the above Notice says as it has just appeared on Facebook but what it does say is remarkable.

The role of the First-tier Tribunal is to find fact and given there is an absence of a formal legal definition of the term “bedroom” the judge has to decide whether any claimed bedroom is, in fact, a bedroom or some other form of room.  The bedroom tax being so named as it doesn’t apply on any room other than a bedroom

The Tribunal is clearly annoyed with the council as he has also directed – or ordered – that the council must (a) inspect; (b) measure; (c) actually do a review of its original decision; (d) respond specifically to the tenants points put to it with regards to LACORS (guidance on 2004 Housing Act) issues; (e) placed time limits on all of the above, and then (f) get their backsides into the tribunal hearing when this case is heard.

Note too the judge has been very specific in his directions to the council as to usable floor space by asking for measurements of door openings and radiators as well.  Be interesting to see how this develops though why the judge saw fit to give the council 5 weeks to go out and measure a room is far too long.

An interesting aspect here is that, unless I am mistaken, the Respondent being the council is in a corporate sense not just the HB department.  So has the judge in fact directed the landlord to prove the room size? No judge can direct a non-council landlord such as a housing association as they are not a party to the bedroom tax or any other HB decision.  Yet is an ALMO still part of the council? If so, it seems a Tribunal may be able to issue a direction to the ALMO as landlord as well as the council as landlord.

Anyone cynical enough to suggest that the council or ALMO landlord will invoke paragraph 20 of the A4/2012 bedroom tax guidance which says the landlord doesn’t have to provide the council HB department with any information on the property whatsoever?

This could be an interesting case!!

Wow! CC supports 600 tenants to appeal the bedroom tax – cc all ha’s

Coast & Country Housing Association is supporting up to 600 of its tenants to appeal the bedroom tax.

This is ingenious and look at what this plan is and not simply assume that this anti bedroom campaigner would say that in any case and dismiss for that reason.  Every other social landlord will see just how clever this move is by just barely scratching under the surface of what it means and, more importantly, what it will undoubtedly achieve.

Social landlords like to talk the talk about how they put their tenants at the heart of everything they do, few by comparison walk the walk.  As is invariably the case with social landlords and social housing, once one does something so clever the rest follow and all social landlords will see this here on 24dash and realise just how good a move this is. They should follow too and not just because I have been advocating appealing and advocating landlords to fund and support tenant groups, but because this is an extremely clever bit of business for so many reasons.

Firstly and immediately this stacks up financially.  If say 500 tenants appeal and just 100 are successful then the costs saved in rent collection, in arrears loss recouped and increased guaranteed income for those 100 will more than pay for the costs of 500 appeals. The average bedroom tax nationally according to official figures is £774 per year and for 600 tenants is £464k.  With streamlined processes each appeal has a significant economy of scale and given 20% is a very low appeal success figure then landlords recoup all costs within the first year and more.  Then should the Tories not be voted out next May – and that is a distinct possibility however unfortunate it may read for many in housing – and the bedroom tax remains, then those savings continue for the next 5 years.

Hope for the best yet plan for the worst is very apparent in this plan.

Secondly, CCHA are using a tenant’s champion model to support tenants in appealing and this is real, genuine tenant involvement and I need not remind anyone in housing what a chimera real tenant involvement is or how beneficial it is for a landlord to have a real partnership with their tenants.

Thirdly, the bedroom tax has created a tension between tenant and landlord. Perception is what matters and many tenants perceive social landlords to be in some part complicit in the bedroom tax despite social landlords not wanting to admit that perception publicly. Yet that perception does persist and regardless of whether it is valid or not.  A landlord so visibly and openly supporting its tenants creates huge goodwill for the landlord amongst its tenants.

Fourth, that goodwill doesn’t just manifest in significant PR opportunities or intangible issues; it holds very significant financial benefits for the enlightened social landlord like Coast & Country with many issues but especially the bete noire of the welfare reforms in direct payments .

The scrapping of housing benefit paid direct to landlords and tenants receiving housing payment directly who then have to pay the landlord – direct payment – is THE nightmare scenario in the welfare reforms for social landlords. The direct payment pilots revealed that 6.6% of rent goes unpaid when currently most landlords collect 99%+ of their overall rent.  In simple and stark terms the amount of rent going unpaid potentially increases ten-fold and if that happens social landlords wither and die and very quickly indeed.

Fifth, and very importantly, even if 2% of CCHA tenants win at appeal you will still have 100% of CCHA tenants saying and knowing that their landlord stood four square behind them.  At least my landlord did ALL that they could will be the perception and the correct perception of 100% of CCHA tenants.

Such a move is a no brainer for any and all social landlords and that goodwill this creates in spades will remain for years and surpass any level of goodwill any landlord had before the bedroom tax and other welfare reforms came into operation.  Coast & Country have the proverbial happy customer and a customer is what the tenant becomes when direct payment comes in as the tenant gains control of the payment of rent.

Coast & Country in this clever plan to support hundreds of their tenants to appeal the bedroom tax have done more than any other landlord to ensure that their tenants remember they stood four square behind them and will be far more likely to pay their rent from direct payment than other tenants whose landlord talked the talk but didn’t walk the walk. Actions do speak so much louder than hollow words even if such words are shouted and those many landlords who constantly restate self-congratulatory messages that only they can believe should sit up and take notice – rather than hand them out.

Tenants on social media are already asking if Coast & Country can do this then why can’t my landlord?

Social landlords need to look at this tenants champion model that sees the landlord supporting tenants groups who in turn are supporting all other tenants and realise this is risk free and a very cleverly thought through business idea. Coast & Country have just put the social back into social housing and will rightly reap the positive bottom line impact this plan will return as well as the plaudits for the sentiment behind it.

CC – every landlord anyone?

Update – For the avoidance of any doubt the above does not downplay the sincerity and the sentiment of this move as the following extract from the news release reveals  I simply chose to emphasise the ingenuity of the above.

“Just one couple..assisted in every way”

just one couple

Bedroom Tax – IDS view of “bedroom” is 1/3 the MINIMUM size of 95 years ago!!!

In 1918, yes the end of the Great War, some 95 years before the bedroom tax came into operation the minimum size of a (single) bedroom was 65 square feet or 6 square metres.   In September 2013 the DWP declared in the HB circular U6 that a bedroom was a room that fits in a single bed measuring 20.67 square feet of 1.8 square metres – LESS THAN ONE THIRD OF THE MINIMUM BEDROOM SIZE OF 1918.

Anyone following the bedroom tax appeal debate will know that the Upper Tribunal lead cases were heard last week of Thursday 18th September and that hearing did NOT just look at whether the overcrowding provisions should be ‘read across’ or not into HB regulations.  The hearing was about the central question of what is a bedroom.

Here is what the Ministry of Justice website says about these lead cases:

CSH/41/2014 CSH/42/2014
Reduction for under occupation – Secretary of State appeal on what constitutes ‘bedroom’ by reference to size or use – relevance of statutory space standards

As you can see the Secretary of State Work & Pensions (SSWP) appeal on what constitutes the term ‘bedroom’ with reference to size.  It was NOT just about the ‘read across’ of the overcrowding provisions in the 1985 Act in England & Wales and the 1987 Housing (Scotland) Act, it was about the minimum size a room has to be in order to be classed as a bedroom.  So the Upper Tribunal may decide a room has to be a minimum of “x” square feet or it may need to include a bed, wardrobe, chest of drawers, etc and be of a size to accommodate that furniture and any access space for making the bed or for getting dressed and undressed as in this governments own preferred minimum bedroom size here.

So many and especially social landlords and their lobbies in CIH and NHF only saw minimum room size in the very narrow and legally procedural aspect of the ‘read across’ and they failed to realise the obvious – that even SSWP’s bizarre and legally perverse notion that a bedroom is a room with just a single bed crammed in and an outwardly opening door is in itself a minimum definition of size, and ironically something IDS as SSWP said he would not be doing in the A4 HB circular of 2012.

The Tudor Walters Committee Report of 1918 – the original Homes fit for Heroes – said that the minimum size of a SINGLE bedroom – note in the bedroom tax the words single or double do not occur – in a house without a parlour is 65 square feet / 6 square metres and in a parlour house the smallest bedroom is 100 square feet or 10.2 square metres.

tudorwalters report 1918

Hence IDS’s bizarre and perverse U6 HB circular, which I have reported before that the DWP has used in its appeals to the Upper Tribunal here is less than a third of the size of the minimum single bedroom of 1918.

IDS is trying to convince the Upper Tribunal that today’s tenant is worthy of a bedroom a third of the size of a tenant in 1918.  Yes I know I keep repeating that but I do so because it is just so bizarre and so surreal and reveals the staggering ineptitude of the policy and the even greater ineptitude and dogma of IDS himself.

What planet is IDS on?

 

Why Tribunals have to consider the government definition of bedroom

Today I put out a blog on the government definition of a bedroom.  Some have argued this is irrelevant and a mere proposed future standard and only on new build properties. They are entitled to their view but here I say why they are wrong.  I fully stand by my view that the government definition is a game changer in appealing the bedroom tax decisions and here I say why.

In very short terms it is the absence of a legislative or regulatory definition means Tribunals will have to consider this government definition and it accords with their remit and purpose to answer the central question of What is a bedroom? Tribunals primary role is to determine fact in the absence of a legislative or regulatory definition and in doing that Tribunals look at all ‘ponters’ as to that question of what is a bedroom.

Tribunal look at tenancy agreements and older HB claim forms as ‘pointers’ too which everyone accepts and they look at all the room size appeal arguments to be found in overcrowding legislation and in the Housing Act 2004 and accompanying 2009 LACORS guidance etc.

It is PRECISELY the absence of a legislative or regulatory definition that they HAVE to consider this government definition.

The role and purpose of the first tier Tribunal is to fact find and here we have a government definition that is considered and is reasonable in its definition.  This is no outlandish definition of what a bedroom is unlike the bizarre and perverse IDs view expressed in the U6 HB circular issued a month AFTER the CLG, published their view of what a bedroom is in such considered terms.

This considered and reasonable view is a definition from this government of the core question of what is a bedroom and reading this simply as a future proposal and only for new build is fundamentally wrong.

Read on.

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What is a bedroom?

That simple question is the central question in the bedroom tax policy and the policy is called the bedroom tax as the deduction in HB can ONLY apply to a bedroom and not to any other room.  The ‘spare room subsidy’ term is a huge misnomer as the ‘subsidy’ cannot be reduced on a room, it has to be a bedroom as the legislation is unambiguous about.

The bedroom tax is a question of what is a bedroom and how do we define the term ‘bedroom’ and not whether a room is spare or not.

What is a bedroom is the ONLY question that can be asked when the policy reduces Housing Benefit if the claimant, the social housing tenant is deemed to have too many bedrooms.  You simply cannot escape making a judgement of what a bedroom is or is not in making the decision, and similarly the Tribunals at appeal have to make that determination to decide whether the Social Sector Size Criteria, the correct name for the policy is correct and legally reliable.

The social sector SIZE criteria as the correct name for the policy gives us a huge clue.  A bedroom under any definition must include a size element; it must be of a dimension or dimensions to accommodate what a bedroom consists of.

The decision maker, who is and is ONLY, the council HB officer has to decide the bedroom tax decision and to make that decision they have to come to a definition of the term ‘bedroom.’  Even as they all did rely upon paragraph 12 of the A4 2012 HB circular which says “…it is up to the landlord to accurately describe the property…” and took this “up to the landlord” wording as definitive the council HB Officer took that definition and made a definition of the term bedroom.

Yet it has never been up to the landlord and cannot legally be up to the landlord for so many reasons.  Under law the parties to a HB decision are the claimant and the council and no one else and the definition of “parties” is found in HB regulations and in the legislation which governs the Tribunals.  It does not include the landlord as a party to the decision.

Then the A4 2012 HB circular, or bedroom tax guidance, says at paragraph 20 that the landlords did not have to provide the HB Officer with ANY information at all upon which to make the decision.

So even IDS as the Secretary of State Work & Pensions (SSWP) knew and acknowledged that the decision cannot be “up to the landlord” as local council decision makers claim: Local councils took the view that saying it was “up to the landlord” was the cheapest way for them to make the decision and that is all “up to the landlord” actually means.

Many Tribunal judges have said this as a matter of law and fact and the Bristol statement of reasons says that in no uncertain terms;

bristolnot

“Nothing in the legislation makes the landlord’s definition definitive.”  That is a telling phrase and a legally accurate one yet the attention is drawn the ‘unscrupulous’ bit used to illustrate that legal point.   Landlords do not like this potentially ‘unscrupulous’ tag and rightly, yet more importantly they do not like what it means.  They say in response to this that are you saying the tenancy agreement which, usually but not always, states the number of bedrooms is not worth the paper it is written on – or similar.

Yet landlord hubris is not the issue and as I say above landlords are NOT a party to the bedroom tax HB decision, or in very blunt terms the bedroom tax decision is bugger all to do with the landlords. Landlords are entitled to have a view of course and what the tenancy agreement says is a pointer to the number of bedrooms a property or a dwelling has. But nothing more than that in a legal sense and the same landlords affronted by this need only look at paragraph 20 of the A4 2012 HB circular which says, unambiguously, that they were under no obligation whatsoever to provide the council with any information at all.

I restate even the SSWP accepts the landlord’s word is not definitive, it is merely a landlord’s view or opinion, that is all it is.

The government made a huge rod for their own back in steadfastly refusing to define the term bedroom. Government left it up for local councils to decide a definition of the term bedroom and knowing that local councils who administer HB on behalf of central government would simply decide to take the landlords view as it is the cheapest option.  No other feasible or expedient option exists other than local councils to make the bedroom tax decision, a decision that has to be legally reliable lest we forget, than to merely believe the social landlords word.

Those same local council HB Officers would not merely believe the private landlord’s view yet the SSWP expected them to merely accept the social landlord’s word. In fact when the bedroom tax decisions were first made ahead of 1 April 2013, all local councils had powers to refer cases of under occupancy to the independent rent officer service.  The SSWP however took away their powers to do that with the introduction of the bedroom tax on, ironically, April Fools Day 2013.

What this has all meant is that the ONLY way for a bedroom tax affected tenant to get a legally reliable decision is to go to the independent fact-finding, first tier Tribunal.

Ponder that for a moment – the only way for a tenant to get a lawful decision is to formally appeal to the Tribunal.  That stinks.  It stinks to high heaven and always has, but that is nonetheless the reality.  When the tenant gets to the Tribunal he or she is met with the purpose of the Tribunal to find FACT and that Tribunal decides the one and only question of what is a bedroom.

Until recently the government, as a collective body, refused to define the term ‘bedroom’ and in fact said “We will not be defining what we mean by bedroom in legislation” at the infamous paragraph 12 of the A4 2012 HB circular. Yet the Tribunal judges do not look to legislation they look to fact as Judge Moss said so cogently in the Sunderland Tribunal case referenced SC236/13/02942.  He said at [58] :

“The issue for the Tribunal is the meaning of the word bedroom.  It is not defined in legislation. It is an ordinary English word. Consequently it is a question of fact for this Tribunal to decide whether the room in question is a bedroom or not.”

The Tribunal decides each case on the individual facts of that case and as they appeared to be fact at the time the decision was made.  What the tenancy agreement may appears to be fact 10 years before or what a property may be re let as in 10 years time are irrelevant.  The facts as at the date of the decision is what counts as Judge Moss says at [66] in the above case.

What is fact and what is a bedroom, or what is a bedroom as a matter of fact is the purpose and the role of the Tribunal.

We come back to that same simple question whatever way we approach the bedroom tax decision – What is a bedroom? That simple question is inescapable and is the ONLY question in the morass of myth discussed about the bedroom tax / spare room subsidy / Social Sector Size Criteria; and by whoever puts in their fourpenneth word be it tenant, activist, landlord, local council or IDS and the DWP.

The Tribunal judge now finds that the government have, all along, had a stated definition of what is a bedroom and what a bedroom constitutes.  That government view says a single bedroom needs to be at least 7.0 square metres in dimension or 75 square feet.  It says a single bedroom needs to have a minimum width of 2.15 metres or just over 7 feet.  That government definition says a single bedroom need to include enough space to accommodate a single bed, a chest of drawers, a dressing table and chair and a bedside cabinet: It says too that there needs to be access space between these normal bedroom furniture items and enough access and activity space to make the bed or get dressed and undressed.  Yes this is not a legislative definition but it is a GOVERNMENT DEFINITION.

The Tribunal must evaluate and consider this definition of this coalition government.

The Tribunal, like any court, also has to consider long standing and tried and tested legal doctrines such as the man on the Clapham omnibus.  In short what would a reasonable fair minded and objective person say is a bedroom.  This is precisely why the fact this government definition is not in legislation is still highly significant and why in terms of the bedroom tax appeal it is a game changer.

The Tribunal must ask itself what would the ordinary person in the street say is a single bedroom and what a single bedroom contains.  Would this reasonable and venerable man say it is reasonable that a single bedroom contains a bed and wardrobe and chest of drawers and enough space to get dressed in and make the bed?  There can only be one answer to that and that answer is Yes.

The highly descriptive nature of the government definition, and bear in mind this is a MINIMUM definition too, is highly persuasive, and will be highly persuasive when argued at a bedroom tax Tribunal appeal hearing, and it IS something that each Tribunal judge must consider in determining its role of whether a room is a bedroom or not.

The DWP and some legal commentators don’t like this.  They are wedded to obscure legal procedural matters of HOW the term ‘bedroom’ should be interpreted and they will cite legal cases such as Pepper v Hart and Quintavalle is the correct way to look at the term ‘bedroom’ and not use Brutus v Cozens which is the ordinary English language way of asking what is a bedroom.  These legal commentators may assume that I have come to this opinion above through ignorance of these cases and I have not read many counsel opinions of what in pari materia and other legal phrases say and mean.  Or that I have read that Pepper v Hart which the DWP quote in their appeals is a largely discredited legal opinion in legal circles.  Perhaps they should read that the Upper Tribunal in the Bolton case also ruled that the term ‘bedroom’ is an ordinary English word or phrase and that is the correct way to interpret it in bedroom tax circumstances.

Many legal commentators said the size issues of appeal such as the 1985 Housing Act would not hold when I raised them yet many Tribunals were persuaded.  They said that room size arguments and the use of Uratemp to further them would not hold too, yet many Tribunals were persuaded.  Now they are saying that the government definition of what is a bedroom is not significant. Hmm!

As an aside and for absolute clarity the Upper Tribunal in Edinburgh this week may well conclude that the overcrowding legislation should not have been read into the bedroom tax decision.  I maintain it has to be considered not out of legal procedure but because it is a factor that Tribunals need and have to consider in light of the absence of a definition of bedroom in legislation or regulation.  The absence of any one determining factor such as this and the preponderance of size related factors as to what constitutes a bedroom HAS to be a consideration.  There are so many pointers regarding a minimum size that the fact finding first tier Tribunal would be erring in law by not considering such matters …and that is the governments own fault for steadfastly refusing to define the term ‘bedroom.’

Legal commentators were also initially aghast and outraged with the Jayson Carmichael case.  He was one of ten collective cases which lost in a judicial review at the High Court and gain at the Appellate court yet won on an individual fact basis which saw the mere first tier, fact finding Tribunal rule against the Court of Appeal. How dare it do that!!  Yet when they discovered his case was taken by barristers they put on their proverbial flip flops again.  Other legal commentators also then said the FTT route was the best way of getting a lawful decision on bedroom tax cases too after this Jayson Carmichael decision.

In admittedly crude but nonetheless valid terms, Tribunals find fact not merely interpret the law and that’s a huge difference to other courts and they are constituted that way and governed that way too unlike other courts and an alien concept to those who don’t work at Tribunals but only in other courts.  I have explained above why Tribunals will consider this very significant government definition of a bedroom and I stand by those reasons very strongly indeed.  This is a game changer in terms of appealing the bedroom tax decision, all of which are legally unreliable and politically and financially expedient decisions too.

Yet that would mean I must not be this arrogant upstart who dares speak out against the lawfulness of the bedroom tax and that my views are merely those of someone who has openly said his rationale is to get rid of the bedroom tax and gets blinded by or is ignorance of fact and is an easy target for the ‘shoot the messenger’ strategy legal commentator adopt repeatedly and whom I call naysayers.  Or those housing naysayers who said appealing the bedroom tax gives ‘false hope’ to tenants rather than some hope and hope that has materialised into winning appeals and given tenants their life back after the bedroom tax decisions imposed were proven to be legally unreliable and the sham I have always maintained.

What is a bedroom reader?  Forget my view and forget the naysayers view and, more importantly, consider how will Tribunal determine that simple question?  If Tribunals, and some will, hold onto the ridiculous legal fiction of IDS that a bedroom is merely a room that can fit in a single bed alone with no other furniture and no access and no activity space, then those Tribunal decisions are wide open to appeal further as they would be unreasonable and not give enough weight to fact and to how the man on the Clapham omnibus would decide what is a bedroom.

Be in no doubt the highly prescriptive government definition of what is a bedroom is a game changer in appealing the sham decisions taken by local council HB Officers made with IDS’s thumbprints in the back of their heads.  Time for all bedroom tax affected households to appeal and put this offensive and ill conceived policy to bed.

The law cannot operate without the MOTCO doctrine as it is a benchmark of what is reasonable and what the ordinary reasonable man would say is reasonable.  The law would have to invent a concept of reasonableness if MOTCO did not exist.  Yet it does exist and has been around since Victorian times and ratified again and again recently by the Supreme Court and upheld once more.  It is a central doctrine and concept in determining both law and fact and Tribunal will use it and will use it in conjunction with the governments stated definition of what a bedroom is.

The government definition is not just a proposed MINIMUM standard; it is the government’s stated view and considered view of what a bedroom constitutes.  It cannot and will not be ignored as being irrelevant because it is not in legislation or regulation; it is precisely the fact that it is not in legislation or regulation that says why the Tribunal will use it to interpret the term ‘bedroom’ and Tribunals have little choice but to do precisely that.

 

What is a bedroom – There is a minimum size and specification…from the coalition

This coalition government DO have a minimum room size and minimum room width and a detailed specification of what constitutes a bedroom and below is a game changer in the bedroom tax and especially in appealing this ill-conceived policy.

In the bedroom tax everything hinges on the term ‘bedroom’ as Housing Benefit is only reduced (the ‘bedroom tax’) if you have a spare bedroom. Nothing is deducted for a spare toilet or any other spare room, it is only on a spare bedroom, however defined.

Until now it has been believed there is no definition of the term bedroom and the DWP infamously issued the U6 HB circular in September 2013 to say a bedroom is merely a room that can accommodate a single bed.

Yet in August 2013 this coalition government put out a highly detailed definition of what is a single bedroom, a twin bedroom and a double bedroom.  A single bedroom the government say measures at least 75.55 square feet in floor space and includes:

  • A bed
  • A wardrobe
  • A chest of drawers
  • A bedside cabinet
  • A table and chair

And with access space in between the above so the bed can be made and the wardrobe can be accessed and also further activity space for which they give the example of room to get dried after a bath or shower and room in which to get dressed.

This is a game changer for the bedroom tax appeals.  The government cannot hide behind IDS’s nonsense and for me legal fiction that a bedroom is merely a room that can fit in a single bed and nothing more.

I am urging every bedroom tax affected household to ask their local council to review all of the 481,000 decisions in which a room is deemed to be a bedroom when it is less than this 75.35 square feet and / or is not of a size to accommodate all of the above items of normal bedroom furniture.  If your council does not revise its decision then I am urging all to formally appeal to a Tribunal on the ground that the disputed room is not a bedroom as it fails to meet the government’s own definition of a bedroom.

What does the Government’s definition say?

Fig 1 – The Requirement

hs requirements all

Note well point 1.3 above which says that ALL bedrooms should provide a minimum area and minimum width.

Figure 2 – The Minimum size and width

hs bedroom size

The minimum size in floor space of a SINGLE bedroom is 7.0 square metres or 75.35 square feet and the room must have a minimum width of 2.15 metres or 7 feet 1 inch.

A DOUBLE bedroom (or twin) needs to be 11 square metres or 118.41 square feet with a minimum width of 2.55 metres or 8 feet 5 inches.

Yet the government, this coalition government go much more detailed into what a bedroom is and needs to include and the above dimensions are minimums and assume a regular shaped room.  A bedroom needs to include typical items of bedroom furniture that a fair minded observer – the legal doctrine of the man on the Clapham omnibus – would include and say are reasonable in a single, twin or double bedroom

Figure 3 – What a bedroom must include according to Government

hs furniture schedule

The above is in list form but you can see a SINGLE bedroom has to have a bed, a wardrobe, a chest of drawers etc all of which have a typical size for a room to be deemed a bedroom according to this coalition government.  This is a government definition of bedroom lets not forget

The government also says there is a need for typical access and activity space in a bedroom

Figure 4 – Bedroom Furniture Schedule

hs bedroom space furniture

Comment

Everything hinges upon the definition of a bedroom in the bedroom tax and one of my earliest arguments back in January 2012 was how can you tax something you refuse to define?  Yet we have a government definition of what constitutes a bedroom and a definition which is the government’s position on what is a bedroom has been since at least at least August 2013 when they released it.

The DWP said in the bizarre U6 HB Circular of September 2013 that a bedroom is a room that can fit a single bed in it, just that and nothing more.  That has always been a nonsense and legal fiction yet some tribunal judges have ruled that way citing the absence of a definition of bedroom and going along with the knee jerk view the DWP expressed in the U6 of September 2013.

The DWP has also argued in seeking permission from the Upper Tribunal to appeal decisions it has lost that any room which is capable of being a bedroom is a bedroom and citing this U6 circular.  Yet the above is the coalition’s own definition of what a room needs to be to be capable of being deemed a (single) bedroom which it says is so much more than a room that can fit a single bed in it!

Where is this government definition to be found?

It is the “Housing Standards Review” from the Department of Communities and Local Government or CLG which is the government department that looks after housing.  In August 2013 they issued a consultation paper and with that part 2 was called “Illustrative Technical Standards” which contains all the drawings used here.

The Housing Standards Review is an attempt to set a national standard of minimum housing size and quite cynically some say it reduces the overall size of new properties.  However, that is another issue for another day notwithstanding that we have the smallest house sizes in Europe.  The real issue is that we do have a coalition government definition of bedroom and that is hugely significant.

The DWP cannot argue that the term bedroom’ is merely a room in which merely a single bed fits and nothing else.  They cannot state this is the government position because another government department and the one which is responsible for housing in CLG says a very different thing.

Some of the naysayers we chirp up that this is not a definition in legislation or regulations.  They are right it is not; yet the purpose of the Tribunal is to find fact in the absence of a definition in regulation or legislation and Tribunal judges rightly adopt a position of what would a reasonable fair minded person say is a bedroom – the legal doctrine of the man on the Clapham omnibus.

The phrase ‘man on the Clapham omnibus’ was reviewed by the UK Supreme Court in the case of Healthcare at Home Limited v. The Common Services Agency [2014] UKSC

“The Clapham omnibus has many passengers. The most venerable is the reasonable man, who was born during the reign of Victoria but remains in vigorous health. Amongst the other passengers are the right-thinking members of society, familiar from the law of defamation, the officious bystander, the reasonable parent, the reasonable landlord, and the fair-minded and informed observer, all of whom have had season tickets for many years”

Would the man on the Clapham omnibus, or a fair minded member of the public if you will, say a single bedroom for everyday use is a room with a bed a chest of drawers, a wardrobe and space to make the bed and to get dressed reasonable?  Yes he would.

This, in short, and there are many other arguments, is why this is a game changer.  It matters little that this definition is found in a document that aims to reduce overall property sizes or does it matter that it is not a definition found in legislation or regulations; we have a government definition and a highly detailed definition of the central question in the bedroom tax policy of what is a bedroom.  It is not an unreasonable definition and accords with what a reasonable person would say a bedroom is and constitutes and it comes from the same government that IDS is a part of.

It cannot hold that any Tribunal can accord with the narrow IDS view of a bedroom being a room with just a single bed in it and not can any local authority administering the scheme too.  Of course LAs will not change as it costs them too much to make a proper and legally reliable bedroom tax decision and it will only be the Tribunals which do give a legally reliable decision so the bedroom tax affected household will have to go to Tribunal to get one.  That will cost central government a fortune and if it does then that is its own and the First Tier Tribunals with their remit and purpose of fact finding are going to be very busy.

 

UPDATE 16:00 hours

Some have argued, and wrongly, that this government definition above is just a proposed future issue that only applies to new build, and as such has no relevance.  Here I discuss in some detail why that view is fundamentally wrong and Tribunals will have to consider all of the above.

 

Will direct payment cost social landlords £1.27 BILLION PER YEAR?

This week Moodys, the ratings agency, getting very twitchy and saying that Universal Credit with its monthly payment of benefit to tenants and its direct payment of housing benefit to tenants rather than to social landlords as now, will see costs increase by 6.6%.  In a piece in Inside Housing it said that Moodys…

“…warned that the payment of benefit for housing costs to tenants ‘is likely to increase the risk of non-payment or underpayment of rent’. It pointed to an average 6.6% fall in rent payments recorded under Department for Work and Pensions demonstration projects trialling the payment of direct benefit.”

6.6%?

Inside Housing didn’t comment on this (now there’s a surprise!!) but they should and everyone involved in social housing should sit up and take notice. The national rent roll, the sum of all social housing rents is about £19.5 billion per year (4.1m rents at circa £90pw) so 6.6% of that is £1.27 BILLION PER YEAR

Welfare reform (sic) policy will directly lead to £1.27 BILLION less paid in rent to social landlords each year!!

When I first started writing about the welfare reform (sic) policies I said they were an attack on social housing itself and they are a radical attack on the social housing model, the social landlord and the social tenant.  They require a radical response and all social landlords and social landlord lobbies (who frankly are getting money for old rope) need to grow a set and tell the coalition precisely where it can stick its welfare reforms.

IF as is widely reported the bedroom tax has seen about £140 million or so increase in arrears tol landlords then direct payments risk at £1.27 Billion is more than EIGHT times a greater financial risk

Social housing receives £1.125 Billion per year in subsidy as the last settlement was £4.5 Billion over 4 years and so we see that Universal Credits direct payment alone is likely to cost social landlords more than that each year.

capital funding

UK Social landlords provide much cheaper rents in return for this subsidy which if they only charged the same in rent as private landlords get in LHA the overall HB bill would increase by £4.2 billion.  Yet UK social landlords do not put forward this correct argument that ‘subsidy’ is an invest to save programme for which government gets a bloody good deal in return.  They should be putting forward this economic argument and should also be saying that they are the only sector which is prepared to take in the SODS as well (Sick, Old, Disabled, Supported) as the private rented sector doesn’t do this by and large.

Social Housing provides a phenomenally good economic and socio-economic return to the taxpayer and government….yet they never ever make that point.  They couldn’t lobby their way out of a wet paper bag and because of this successive governments have taken advantage of their lack of influence and ‘power’ and none more so than this coalition who are shafting social housing at every turn.

The private landlord lobbies such as the NLA in response to any suggestion that a new proposal would cost them thruppence more over 50 years lobbies like the the one thing social housing is not, a sector, and they tell government where to go.  Yet inflict direct payment and cost UK social landlords £1.27 billion per year and lets give the tenant a cheap tablet computer is the response.  And even when those landlords reveal that the simplest form of direct payment costs them an additional £1500 per year per tenant as Peter Fitzhenry of Golden Gates Housing Association in Warrington did, the rest of the UK’s social landlord and their woeful lobbies simply ignored.

I have been criticised as being cynical over social housings woeful efforts at influence and lobbying from within social housing.  That just about sums up UK social housing – blame the messenger while burying its head in the sand and ignoring the message which is a wet fish slapping them in the face!  Plus ca change!!

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On a related point of rental income the Statistical Data Return (SDR) was published last week.  This is the annual dataset of all rents by housing associations by the Homes & Communities Agency, or HCA the social housing regulator.  This revealed that housing associations or as the HCA correctly calls them PRIVATE Registered Providers charged and received £130 million MORE in rent through the Affordable (sic) Rent model with almost 80,000 properties let out at an average £31.38 more in rent each week.

SDR2014

This is why so many social landlords are reporting much increased surpluses presumably yet £130 million more income pales into insignificance given that direct payment alone will cost £1,270 million more – and that doesn’t include social landlords other increased costs of rent collection or the much increased arrears from the bedroom tax and benefit cap.

68% of these AR properties were not new build properties but existing properties which were vacated by tenants and then simply relet to a new tenant at the much higher AR level.  The amount of AR units doubled, up 102%, last year and while this varies from one social landlord to the next, does represents a cultural shift of HAs moving away from their founding ethos which will reignite that internal housing debate, yet is also a typical social housing issue – Social landlords don’t lobby they merely reactively adopt  the follow whatever funding is available strategy.

The two issues are very much linked as social landlords, collectively, do have huge potential influence given how much they save the taxpayer and the exchequer and as I discussed here the tenant is about to become a real customer with direct payment and not a captive one as they are now; yet social landlords never proactively attempt to wield or unleash that latent power.  It is time they did and, for once, meet a radical set of proposals which we have in the welfare reforms (sic) with a radical response and finally start to lobby.

Finally, I am not advocating that HAs do become FULLY private organisations by telling the coalition to shove their meagre capital subsidy for which they give so much back in return to the taxpayer: Rather they need to impose the latent ‘power’ they do have and remind this coalition government (and the next) of what a bloody good deal social housing provides in economic terms to the exchequer.

Why not top slice 2p a week off every social housing rent and put into a £4.25 million per year fighting fund charged with lobbying for the sector; a simple and cheap way of flexing their muscles and buying top lobbyists for the sector which currently they are not and stop playing at games with campaigns which look good and are the ‘sectors’ needs and wants yet have little to no influence.

Social housing needs, like every other industry, a powerful proactive lobby in order to survive. Yet all it has is latent power and individual and collective leaders tugging their forelocks at the latest attack on the social housing model.  Though I doubt not even the threat of a further £1.27 Billion per year cost to them will make them wake up and smell the coffee.

The bedroom tax vote – Why I won’t be yodelling naked!!!

The bedroom tax vote will NOT, I repeat NOT change the policy ahead of the General Election in May 2015.  The events surrounding it may cause all sorts of political shake ups but the vote will NOT change the bedroom tax for tenants or landlords affected by it before the next General Election.

It will change diddly squat, nil, zip, nada, and absolutely bugger all …just in case you haven’t yet got the picture.  So, please, please, please ignore all the absolute crap you read about this vote and what it means for the bedroom tax.  It means that the bedroom tax will NOT change one iota before the next General Election.

Here is why.

Read the Bill here if you must which is a proposal to change some of the bedroom tax rules.  A Bill needs to go through numerous stages to become an Act or the law.  Yesterday the Second Reading was past with the vote.  After the Second Reading it then goes to Committee Stage then to Report Stage then to a Third Reading Stage then it goes to the House of Lords who can propose amendments and the Bill gets batted back and forth until final amendments are made  and then it gets sent for Royal Assent which puts it on the statute books, that is becomes law.

bill

Tortuous and not a short process just in practical terms.

Then and those who have read the Bill itself will know and seen Section 7 (2) This Act comes into force at the end of the period of 3 months beginning with the day on which it is passed – So a further 3 months and so just in practical terms the chance of this Bill becoming law before the General Election that is within 8 months are slim to none.

I now turn to look at what the Bill says which you will soon see reader is a crock.

Here is what 2(a) says: -

(a) an adaptation has been made to the dwelling to provide assistance to meet a disability need of the claimant, the claimant’s partner or a close relative of the claimant or the claimant’s  partner who resides at the dwelling and the claimant has provided the relevant authority with 

such certificates, documents, information or evidence as to demonstrate, to the reasonable satisfaction of the relevant authority—

(i) the disability need of a person referred to above;

(ii) that an adaptation has been made to meet that need; and

(iii) that the cost of the adaptation is not less than an amount prescribed in regulations made by the Secretary of State;

In plain English, and as far as that is even possible – where a property has had an adaptation to provide assistance to meet a disability need of

  • the claimant,
  • the claimants partner or
  • a close relative who lives there (a parent, parent-in-law, son, son-in-law, daughter, daughter-in-law, step-parent, step-son, step-daughter, brother, sister, or if any of the preceding persons is one member of a couple, the other member of that couple) then the bedroom tax may change.

Yet what is an adaptation?  A grab rail is an adaptation which meets a disability need.  So is a vibrating pillow for a D/deaf person.  So what type of adaptation is needed to trigger this additional bedroom to be exempted?  Yep that’s one for the MPs to squabble over before this Bill goes anywhere.

And note what 2 (a)(iii) says about that: -

“… the cost of the adaptation is not less than an amount prescribed in regulations made by the Secretary of State”.

So IDS who is the Secretary of State could prescribe that this only applies to any adaptation costing £1 million or more read literally.  Churlish of me reader? No as this Act says it can be amended by the Secretary of State by statutory interpretation so IDS can assuming this Bill reaches Royal Assent before the next election then issue a statutory instrument to this effect!

And does this really apply to anyone who lives at the property and not just as now the tenant or the tenant’s partner?  Yes it would seem to apply to the tenant, the tenant’s partner and any ‘close relative’ which is a specifically defined HB term as long as they live in the property.  So you know you don’t really want your elderly parents to come and live with you….ahem…!  Oh and this will have to be debated ahead of this Bill becoming the law too.

Oh and Yes. IDS could issue another SI which says this only applies to any occupant if their name is Maud and they have climbed Machu Pichu after they attained the age of Methusalah

Ok I will stop being flippant.

This Bill is going to get bogged down in Committee and Report Stages and there is so much contention within it not least the intention to not impose the bedroom tax if the tenant cannot downsize due to a reasonable offer of alternative accommodation.  Anyone define suitable for me?

Ah yes that will have the same problem that the absence of a definition of bedroom has for the bedroom tax itself.  And the process for appealing any declaration of a ‘suitable’ offer is?  Yes who the hell knows and another matter for Committee and Report Stages.

In simple terms if the fact remains that 94% of bedroom tax households cannot downsize then that must mean that 94% will not have the bedroom tax applied.  That, dear reader, just ain’t gonna happen.  Unless of course the Minister Mark Harper can magic up 470,000 new properties out of the ether as he magicked up the £1 billion alleged cost of this Bill yesterday!

This Bill is a dog’s breakfast.

It will never come to be law and yesterday was just a game of politics between the parties and absolutely bugger all to do with changing the lot of the bedroom tax tenant or landlord or the policy itself. It was just political chicanery with feigned concern for the bedroom tax affected tenant and MPs looking out for their own backsides and only their own as per usual.I could write many more reasons why this Dog’s Breakfast of a Bill will never materialise but there is no need.

I did tweet earlier this week that if this Bill was passed and in operation before the next general election I will yodel naked from atop Nelson’s Column.  Don’t worry reader and as you can see from the above I have no plans to practise my yodelling!

 

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