Is the bedroom tax unlawful – part 2

Having a spare 15 minutes on Sunday morning I drafted and posted a blog asking the question Is the bedroom tax unlawful?  I went on to say in my view it must be unlawful for a number of reasons.

  1. Firstly, there is no definition of a bedroom so how can you tax something you can’t define?
  2. Secondly, what definition that does exist under housing law says that a room under 70 square feet is not a bedroom.
  3. Thirdly, so many third bedrooms in rented and sold properties have the smallest ‘bedroom’ at less than 70 square feet so are landlords and estate agents breaking the law by advertising them as 3 bedroomed properties?

This blog post also highlighted that one Surrey council had successfully prosecuted a landlord for renting out a room smaller than this minimum bedroom size (MBS) recently.  So the legality or lawfulness of what constitutes a bedroom is out there in law and capable of being used to answer the fundamental question I asked, namely What is a bedroom?

The blog has had 20 times the normal views in just one day than I would expect in a week and at the time of writing this still attracting more and more views and my email and other inboxes have had scores of replies.  Because the responses I get tend not to be comments below the blog but emails I now look at and discuss some of the main theme in those responses is ….Why havent social landlords done anything or more about this?

1.  Why havent social landlords done ‘anything’ about it?

The general argument being made is that social landlords are supposed to be on the side of tenants and have charitable aims, so why havent they raised the minimum bedroom size (MBS) issue?

Firstly, it is not true to say social landlords have not doen anything about the bedroom tax and if anything they have lobbied hard on the general issue of the bedroom tax being unfair. Yet that is the problem as social landlords have focused their challenge on the morality or fairness of the issue and not on its legality. Why should a couple in their 50s who have brought up a family in a 3 bed house and now the children have flown the coop be penalised has been their line of argument.  A perfectly good argument I agree but nonetheless an emotive one.  Yet more importantly it hasn’t been a logical one in my view.

When you challenge decisions you don’t get embroiled in the emotive morality of the decision or the merits of it; rather you must firstly ask is this decision lawful.  If it isn’t lawful or you can create enough fuss about the legality of a decision then there is no need to get into the merits or consequences of such decisions – if it is unlawful then such consequences won’t flow.

Secondly, as the people who are to be affected are tenants isn’t the real question why the hell haven’t TPAS or TAROE or other tenant lobby groups not raised the legality of the MBS issue?  This is a far more pertinent question.  My third bullet point above makes social landlords potentially complicit in the current legality of the MBS and especially when the bedroom tax comes in.  If they are renting properties they SAY are 3 bedroomed ones yet the boxroom is less than the MBS then they are the ‘perpetrators’ here of potential unlawfulness by renting a 3 bed when in fact it is a 2 bed and a boxroom. I can’t think off the top of my head where the ‘perpetrators’ ie those that impact the ‘unlawfulness’ lobby against its change; it is usually the ‘victim’ of that, in this case tenants, that challenge the legality of the matter.

So why haven’t tenant groups challenged the Minimum Bedroom Size or MBS issue?

Thirdly, and as I have been arguing for some time, the entire raft of welfare reforms from the coalition of which the bedroom tax is just one have always placed social landlords (rightly or wrongly) in an invidious position AND run a huge reputational risk to social landlords that they and not the coalition would be blamed for them.  I drafted a blog titled are social landlords complicit in the bedroom tax just the other week which covered many such points.

Looking at and positioning social landlords as potentially complicit in the bedroom tax and then in simple terms inferring the view that they haven’t challenged the legality of the MBS in the bedroom tax because it would expose that they have mis-sold (or mis-rented) their properties as 3 beds when in fact they are 2 beds can and easily has led to tenants citing this as a reason for social landlords lack of challenge to the MBS issue.  That is a huge reputational risk social landlords have run and on balance they have severely neglected this reputational risk.  Despite this having been fostered on social landlords by the coalition bedroom tax policy social landlords have totally mishandled and some have not even this reputational risk.

However, on balance, why the hell haven’t tenant groups seen this MBS issue and challenged it?  It is tenants who will be the recipients of this tax and tenants who will suffer financially.  All tenants caught by the bedroom tax will suffer and while that will lead to higher arrears and affect social landlords financially, it will be some but not all affected tenants that go into arrears. I could equally argue that this is why social landlords have not done more to challenge the legality of the MBS, yet without being an apologist for them I think they simply haven’t seen this potential legal route to challenge or question the legality of the bedroom tax.

NOTES

Other response themes I have received look at whether there is a legal link between HB and housing law? If HB departments within councils check to see whether there is a minimum bedroom size (MBR) and evidenced and successfully prosecuted in the Reigate case in a multiple household property then why not in a single household property? If HB is not paid for a HMO room that is below 70 square feet then why should it be paid for a single household property?

Others ask:

Should all landlords have to put room sizes on tenancy agreements?

If they did couldn’t HB depts then check?  Should landlords have to put room sixes on tenancy agreements? If they did what impact would that have on overcrowded / overoccupying issues?

Is it the case that HB pay the same for a 30 square feet room that they do for a 500 square feet room? Yes it is.  So should they?

The above are just a small selection of responses yet all stem from asking the simple question namely, What is a bedroom?  The proverbial can of worms has been opened that affect many areas of housing policy, affects tenants and their children, landlords, government, estate agents and others.  I’m sure there are many other issues to be raised too and I will post a series of blogs on them here.

A request if I may.

I am not a legal expert and so would like and welcome broad comments from those that are on the legalities I have raised around the minimum bedroom size (MBS) issue. Perhaps the law is deficient here? Perhaps HB regulations are deficient? Perhaps there may be huge retrospective consequences of a landlord renting a 3 bed that is really only a 2 bed? Perhaps that also applies to estate agents too?  Does it also apply to RTB sales as well?  All of these could be a mis-selling issue?

I say that because an answer surely must be found to the MBS issue as it affects hundreds of thousands of tenants many of whom are vulnerable.  It affects ALL tenants even those nor in receipt of HB too as ‘self-payers’ have been paying rent on what they are told is a 3 bed house when in fact it could be a 2 bedroom.

THe other reason I seek some legal answers is in terms of challenging this distinctly unfair ‘bedroom’ tax.  It deserves to be challenged and exposes too one key and concurrent theme I have in my blogs – that this coalition especially makes policy out of political dogma yet doesn’t see the consequences through.  That for me is an affront to democracy and bad governing and goes way beyond party politics.  If a government enacts policies and doesn’t know the consequences and impacts that policy will have, then that government should be challenged at every turn for the sake of the country.  This is not an issue of party politics but a national issue that affects all party voters adversely and bizarrely and whether or not they work or are on benefits.

This MBS issue has aroused much awareness of the legality of the bedroom tax policy.  So while I argue above it is for tenants rather than social landlords to challenge, the issue is so big that they should combine and challenge the bedroom tax policy together.  That helps social landlords get over charges of complicity by tenants and they need to do that.  Surely is the much less pressure and lobbying placed on government has delayed the overall benefit cap then the pressure the legality of the bedroom tax would place on government can surely see the bedroom tax delayed as well.

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