I have written a lot about what is a bedroom – that simple question that is highly pertinent to the bedroom tax debate. After all I argued, how the hell can you tax something which you are unwilling to define?
I have often cited the A4/2012 HB circular as the official guidance from the DWP to local councils and it is explicitly clear the DWP will not define what is a bedroom. It says:
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
A DWP spokesperson said the department did not fear legal challenges due to the lack of definition of a bedroom. He said it is clear that the definition of a bedroom is up to landlords and is whatever is stipulated in individual tenancy agreements.
As you can see the DWP spokesman has said that a bedroom is whatever it says on your tenancy agreement. This IS a definition from the DWP and IS a fundamental change.
Is this a case of a DWP spokesman overstepping the mark and creating new official guidance or is this new policy and the DWP has defined what a bedroom is?
UPDATE & COMMENT
What is NEW here is that the DWP has never before said a bedroom is what is says on the tenancy agreement. It may have been implies or inferred but as you can see from the A4/2012 above it has never been said before and that is very significant indeed, assuming this is now DWP policy and not an accidental or even deliberate piece of misinformation from the DWP spokesman.
The guidance has always said it is up to the landlord to define the number of bedrooms a property has and the social landlord could do this in a number of ways – they had choice in other words, So the landlord could reclassify and or classify this in ‘x’ number of ways. Now the DWP has defined what is a bedroom to mean what it says on the tenancy agreement and taken away any inference and made what it says on the tenancy agreement definitive.
A tenancy agreement is a contract and is subject to legal interpretation – it could say the moon is made out of cream cheese but doesn’t make that legally binding – and we have seen tenancy agreements having their terms ruled as unfair in the past. That means – obviously – that a tenancy agreement is NOT definitive and is subject to the law.
So is a tenancy agreement that says a property has 3 bedrooms when in fact it is only 2 bedrooms plus a boxroom fair? The courts can now decide and directly because the DWP has defined a bedroom as what is says on the tenancy agreement. Before this new change and explicit definition a court case could falter as what the tenancy agreement says was NOT definitive in determining whether the bedroom tax applies. Now with this change it does say the tenancy agreement is definitive.
So a tenant taking a case that the tenancy agreement was wrong was, until today, potentially not going to get into court to be argued. But now the DWP has made the tenancy agreement definitive that constraint or block on a tenant legally challenging the terms of the tenancy agreement has been removed.
This is why in my opinion the DWP has steadfastly refused to define a bedroom for bedroom tax purposes. Yet saying it reveals precisely and openly what the policy does in placing social landlords in a bind and between a rock and a hard place. Now that they have said this explicitly, it shows that the social landlord WILL face legal challenges from tenants on the number of bedrooms that the social landlord informs the local council each property has. It exposes the social landlord to a huge number of legal challenges from tenants on what is a bedroom and how they – the social landlord – has defined this in the tenancy agreement and the tenancy agreement alone.