The bedroom tax
If you are a single person living a 2 bed council house you will see a reduction in your Housing Benefit of 14% because you have 1 more bedroom than you need. If it’s a 3 bed council or housing association house you will lose 25% of your Housing Benefit because you have 2 bedrooms too many. But what is a bedroom?
The bedroom tax as we see above is based on bedrooms yet there is no definition of what is a bedroom and the coalition are leaving that to social landlords to define and DWP will not define what constitutes a bedroom. That is unacceptable and wrong. You cannot have a benefit decided on the subjective opinion of varying landlords it just doesn’t make any sense.
Houses in Multiple Occupation (HMOs) do have a size definition of what constitutes a bedroom. That size is 6.5 square metres or 70.1 square feet if like me you work better in imperial measurements. Anything under 10’ x 7’ is less than 70 square feet (and 6.5sq/m) and so if not a bedroom under HMO regulations. Yet many ‘bedrooms’ can be less than this size of area and shouldn’t be classed as a bedroom for HB purposes; and further I would argue and indeed advocate that tenants who have such small rooms to appeal and challenge any deduction of HB on that basis.
Many years ago I headed up the asylum seeker dispersal programme for a NW council. The government had contracts with local councils which said that properties to be used for asylum seekers has to be dual use so a 3 bed house could accommodate a family seeking asylum or 3 individuals. They had to be HMO compliant too AND a single bedroom had to be 70sq/ft and a double bedroom 110 sq/ft. The important central point here is that central government specified, under contract, what a bedroom was in terms of size – they defined a bedroom.
Many properties are defined in housing-speak to be say a 3bed/5 which means 3 bedrooms to accommodate 5 people (two doubles and 1 single = 5 occupancy) yet the single room is often below the 70sq/ft size making it a boxroom and not a bedroom.
If government can and do define what a bedroom is by saying in asylum contracts it has to be a minimum size then surely that size criterion must follow for what is a bedroom for bedroom tax purposes and HB deductions?
The coalition also advises that these underoccupying tenants can take in a lodger. Yet if a tenant advertises a single bedroom which is less than 70sq/ft are they in breach of the Trades Descriptions Act or some other law for advertising a bedroom which is in fact (legally?) not a bedroom but a boxroom? Would the lodger have a case in law to refuse to pay rent for a boxroom that was advertised as a bedroom? Would HB have a case if they refused to pay HB by claiming it was a boxroom and not a bedroom?
I am staggered that there has been no legal challenge to this to determine for the purposes of HB deductions what is a bedroom? Back in May in an interview with Lord Freud he was adamant the government were not going to define what a bedroom is. He said: –
Lord Freud is adamant that the government will not define what a bedroom is for the purposes of the policy. ‘It is up to landlords to determine that and they are perfectly capable of doing that,’ he says, speaking slowly and deliberately. This has led to concerns that landlords could reclassify large numbers of properties to allow tenants to avoid the tax – a move which will reduce rental income. Some fear this could breach existing lending agreements and lead to legal challenges from tenants over what constitutes a bedroom.
Lord Freud says: ‘My own expectation is there will be a bit of it [reclassification] but it won’t be a widespread, wholesale move because it has income impacts.’
On the point about legal challenges, Lord Freud, pauses, choosing his words carefully. ‘I’m clearly not expecting that outcome and I’m expecting landlords to act appropriately and smartly,’ he says.
Yet the above doesn’t answer the simple questions of what constitutes a bedroom for benefit purposes. Put another way how can DWP or our local HB department determine what is and isn’t a bedroom for deducting benefit? All benefit decisions are rightly open to appeals and eventually full legal challenge. Lord Freud in his last sentence is clearly passing the buck onto landlords. Does this mean the DWP will accept what the landlord says in making a decision on a bedroom tax deduction? Does this also mean a tenant has a legal challenge against the DWP and the landlord in such cases? “Sorry Mrs Jones your landlord says you are not disabled and so we are not paying you DLA or incapacity benefit” says the DWP decision letter! Eh!
That is an analogy of how absurd the process and decision making in the bedroom tax is!! What the hell are landlords doing allowing themselves to be embroiled in this farce? Why are they exposing themselves to costly legal and other challenges in this way?
It’s time social landlords challenged this collectively on behalf of their tenants or TPAS or another umbrella body on behalf of tenants challenged this nonsense. It’s also time for social landlords and tenants groups to develop standard letters so tenants can appeal every bedroom tax decision or determination where they have a boxroom.
What about public interest lawyers? Is there a public interest issue here? Damn right there is as central government are taking money away from tenants living on subsistence level benefits and it affects hundreds of thousands across the country.
I had only thought about the lodger angle today. The government are advocating and promoting this yet are noticeably silent on what a bedroom is and of course that means they are ignoring a potentially huge legal issue on whether a lodger pays the tenant or on whether the DWP refuses to pay HB to the lodger. If so taking this one stage further would the lodger also have a claim against the social landlord too? I could get really semantic and pedantic and say a tenancy agreement may allow a tenant to rent out a bedroom to a lodger or boarder but not a boxroom. If we have a definition and if we do I fail to see how it can be less than 70sq/ft then has a tenant broken his tenancy agreement is he rents out a boxroom? The more one looks at this the more ridiculous the Lord Freud and DWP and Coalition policy and position is! It is a legally fraught position too that as yet to my knowledge has had no challenge….Why?
One other point on the lodger issue has come to mind. If a tenant has a lodger isn’t that two separate households or a HMO too? If they have two lodgers then that’s 3 separate households surely? Note 3 people living in 3 separate households is one of the benchmark factors in determining what is and isn’t a HMO.
Here’s where this policy gets bizarre and surreal. If you take in a lodger as the government are promoting then your home forms 2 separate households and comes under the vague definition of a HMO and if you don’t it doesn’t. So do as the government advocates and promotes and you have a better chance of the HMO size standard being relevant legally and conversely if you don’t the chances of the typical HMO size standard of 70 sq/ft has less applicability! If you take in 2 lodgers you have 3 people in 3 households and conform to a more definitive HMO and so surely space standards of 70sq/ft would have to apply?
So a quick recap, no lodgers and who cares if it is a bedroom or boxroom. Take in 1 lodger and it’s easier to argue the bedroom/ boxroom position. Take in two lodgers and then it can only be a boxroom! That is the bizarre and oppressive nature of this policy and it is a joke!
Yet you also have as a tenant more legal obligations to ensure the bedroom is a bedroom and not a boxroom for HMO size purposes! Did you see anywhere in the governments leaflets promoting this any reference to you creating a HMO? Does the all-singing, all-dancing Universal Credit IT system include the tax or non-tax implications of taking in lodgers which is even more confusing thanks to another knee-jerk intervention by Lord Freud that I discussed here in a blog called lodger, bodger, silly old codger for good reason.
If the UC IT system does not cover the mysterious vague tax treatment of lodgers and tenants then how can it deliver a final assessment of a tenant’s entitlement to all benefits? It can’t can it and so tenants will be waiting longer for decisions and so build up more arrears (and take out more Wonga loans in the meantime?) Also how is the definitive word of the landlord to be considered by the UC IT system? Does a landlord have to supply it with the landlord classification of whether 1 Acacia Avenue is a 3 bed or a 2 bed property? And all this digital by default…eh! I digress.
So is anyone any clearer on what the f*ck is a bedroom then?
The Law Lords in the (little known, relevant and worth reading) case of Uratemp Ventures v Collins determined what is a dwelling which they did, then why is no one asking them to define what is a bedroom?
Landlords and tenant groups need to get off their backsides and ask that the judiciary does determine what is a bedroom? Surely there is also plenty of interest and scope for public interest lawyers here too.
Hmmm, I wonder how many private landlords are renting out boxrooms and having 3 persons share a 3 bed house? Quite a lot I imagine and especially as it is in their financial interests and indeed a large government steer to do this with LHA caps. Is the SRS landlord who wants to constantly (often with good reason) decry the private landlord for iffy practises going to hide behind the fact that they too are renting many 3 bed properties which are in fact 2 bedrooms and a boxroom? That would be duplicity wouldn’t it and rank hypocrisy.
So tenant groups it looks like it’s all up to you then!!