When Thatcher introduced the Community Charge which became known as the Poll Tax it was hated, just as the Under Occupation Charge known as the Bedroom Tax is despised.
What many won’t remember is the Poll Tax was introduced in Scotland a year ahead of its introduction in England & Wales. I was living in Scotland at the time and the Scots truly hated this. How dare she use us as guinea pigs was one of the most tactful ways I can say were the typical comments and you can imagine the outrage and language used was very “Anglo-Saxon” shall we say.
This was also the first time I had experienced what is known as ‘direct action’ which basically means a lawful protest. Briefly the direct action advised the Scottish public to pay the Poll Tax in coins and particular in copper coins – 1p and 2p pieces. The logic in this was because you are paying the Crown they have to accept the coinage and unlike a shopkeeper who can refuse anything more than 25p in copper coins. In short it was a direct action protest which saw the admin costs of collecting the Poll Tax rise dramatically and was lawful. I was impressed and admired the brains of whoever thought up this lawful plan.
The bedroom tax is also despised and I think social tenants should adopt as many direct action measures as they can to stymie (a Scottish word if ever there was one) the bedroom tax process and policy. Did you know for example you can pay as much as you like to anyone in £1 coins and they have to accept it so imagine if every social tenant paid their rent in person and in £1 coins! Sod direct debit which social landlords are imploring every tenant to sign up to at every turn and pay all of the rent not just the bedroom tax shortfall this way and do so for just a few weeks as a protest! Social landlords would incur massive admin costs of taking rent payments in counting the rent.
Legal tender guidelines are here if you want to explore this.
If I was a tenant of say One Vision Housing who sent out the threatening letter to tenants last week I would do precisely this. as when a social landlord declares war on the social tenant then the social tenant should declare war back on the social landlord! I’m not and for the avoidance of any doubt I am not directly or indirectly advising any OVH tenant to do this; then again I am not an OVH tenant.
Read that any way you like! However, what I will say is that the bedroom tax is just wrong and unfair and it needs as much direct action to as many quarters as possible from tenants.
As a general rule of thumb any decision made by a public body such as a local authority, the LA or council, involves a right of appeal to those it affects. The bedroom tax decision is made by the LA and holds such an appeal right to every tenant, so imagine if all 660,000 tenants did appeal!! The system would be thrown into chaos, absolute chaos and I have no problem in advocating and promoting that every social tenant hit with a bedroom tax decision should appeal. It is your legal right after all.
The government in its bedroom tax impact assessment document expects just 20,000 to appeal out of the 660,000 it estimates will be hit by the bedroom tax. That means 32 out of every 33 affected won’t appeal which is a ridiculously low estimate as a damn sight more than 3% will appeal and in my view 100% should appeal. So a direct action response here would be to advise everyone to appeal – and there are many legitimate grounds to appeal on which I will come to and why I do advocate all 660,000 should appeal. That would not just create chaos but pandemonium and incur a huge cost to every LA in administrative terms.
The DWP even puts a (very disingenuous) cost on this to LAs of £4m or £200 per appeal. When a tenant appeals a decision the LA has to open a new file, has to record that appeal, perhaps send out an acknowledgment letter saying it has been received and it being considered, then consider that appeal (and how much time of how many officers is that?), make a decision, and then inform the tenant of that decision. All of that assumes LAs have enough staff to carry this out and they haven’t and would need to recruit staff to do this, and even if they did have enough staff it would cost a hell of a lot more than £200 to do a proper appeal.
When I say a ‘proper’ appeal I mean the LA must look at each individual case properly and come to an individual decision on each case. If they do not then this first appeal hold legal grounds for a further appeal – a council has to do everything by the book in terms of process and if they do not then even if the decision is correct the fact they have not followed the right process means the decision they took is highly likely to be quashed.
Every LA would be severely pissed off if every bedroom tax tenant appealed as this would cost them multi-millions. Yet as I say every tenant has a general right of appeal so use it! If you want to bring central government to its senses and to look again at the bedroom tax policy then having every LA moaning at central government over the cost has a lot of merit. These LAs, ie councils, would place huge pressure on central government, ie the coalition, to look again at the policy as not only would this massively increase LA costs of administering HB it also means every LA is much more exposed to second appeals and legal challenges and of course the costs involved in that. Local government would be spitting feathers!
In summary at this point it took a few years to bring down the Poll Tax. Yet if 660,000 HB appeals were launched it would bring the bedroom tax to its knees within weeks not years.
Hence lodging an appeal is only the right of the social tenant yet it has more than nuisance value and there are specific challenges I can see for all 660,000 affected.
Specifics -Please bear with me as this is a complex area and not simple to explain
Benefit Regulations (HBR) are the HB rules and they contain a number of specific appeal grounds and not just general ones. One of them genuinely interests me and that is directly related to the changes the bedroom tax directly makes to the HB decision making process.
I was re-reading the Housing Benefit Guidance Manual (HBGM) which is the HB decision makers bible in simple terms and says what each HB claim must contain to arrive at a decision. I have appealed or challenged literally thousands of HB decisions over the years which anyone who has ever worked in supported housing will know is routine as supported housing has plenty of complex but specific regulations in HB terms such as making some ineligible HB costs eligible or very specific rules such as the costs of playground equipment is an eligible cost for DV refuges. However, I don’t consider myself any sort of expert in how HB regulations apply to mainstream social housing however; rather from experience of reading them I can see one very specific bedroom tax related challenge – that the social tenant request their rent is referred to the independent rent officer service.
Prior to the bedroom tax or ordinarily a social landlord rent is hardly ever referred to the independent Rent Officer service. This is because a social landlord is heavily regulated and the rents they set are assumed to be correct; whereas a private landlord is not regulated and the HB decision maker has to assess whether the rent the unregulated private landlord has set is a fair one. So this involves the LA asking the Rent Officer service to physically go out and check the private property as after all they are considering spending public monies in housing benefit or LHA and need to ensure it is spent correctly.
Yet HB regulations hold two specific cases where the LA can and should refer the social housing rent to the independent Rent Officer service and these are when the property has an unusually high rent which typically won’t apply to bedroom tax appeals OR when: –
“…the accommodation is larger than reasonably required by the claimant and any others who occupy the dwelling.”
That is the bedroom tax in a nutshell!
The bedroom tax at its simplest correct level is a reduction in benefit because the tenant has a larger property than the housing need. Therefore it MUST hold that a bedroom tax property is such an accommodation that is larger than reasonably required by the claimant and any others who occupy the dwelling – or in simple terms is larger than the tenants housing need.
As such I maintain every one of the 660,000 bedroom tax affected social tenants has a specific ground of appeal under HB regulations.
The HB regulations also say that every LA must have a policy which contains when and how they refer social landlord properties to the Rent Officer service. Yet because this is so unusual – a social housing property being referred has the same regularity or frequency as a blue moon! – I would suggest many LAs don’t have such a specific written policy on this. Yet when the social tenant appeals any bedroom tax decision by the LA they can reasonably ask the LA (a) to refer their rent to the Rent Officer service; (b) ask the LA to send them a written copy of their policy on referring, and (c) reasonably request that the time allowed for any such appeal be extended until 21 days after the Rent Officer has been involved and after the tenant has received a copy of the Rent Officer’s view of the property.
This argument will send shivers down the spines of social landlords too as if there is an appeal against any HB payments to the tenant, then no district judge will likely award any possession order against a tenant as they only appear to be in arrears because of the initial HB decision that is being appealed. It has yet in law been proven that the socil tenant is IN arrears! That means social landlords must defer any such possession actions against bedroom tax arrears which in turn means arrears will inevitably be higher when any such matters go to court.
Yet as I say above every tenant has a legal right of appeal against a HB decision – and the argument above is not a frivolous one in any way shape or form.
Neither for that matter is an appeal which requests the independent Rent Officer service to determine how many bedrooms a property has despite the National Housing Federation acting as judge and jury on this issue with a very deterministic document they released last week saying the number of bedrooms is, definitively, what the landlord says it is. It is not and only a court can be so definitive on that issue and this is another specific appeal ground for the social tenant.
Yes I am referring to the less than 70 square feet issue again which the NHF say errantly is a non-issue. They are wrong and they should revise their publication which, in reality, the NHF is advising that social landlords should cram as many people into their properties as possible and even more than allowed in privately rented properties!!
So before any housing professional thinks I am being provocative here and simply advising social tenants to have a go at their landlords they should look at what the NHF is advocating – that a social housing property should be allowed to hold more people than a PRS property. This is actually the status quo before the bedroom tax as the Rent Officer handbook makes clear. It says:
Under the Housing Benefit Scheme, rent officers treat bedrooms and rooms suitable for living interchangeably, Local Reference Rents are based on total number of habitable rooms (bedrooms and living rooms, but including dining rooms, some conservatories and living kitchens. Under the Local Housing Allowance Scheme, the LHA is based on numbers of bedrooms alone.
What that means is a social housing property in HB terms is judged by how many rooms could be a bedroom, yet in the private sector only bedrooms are considered by…the independent Rent Officer. The same independent Rent Officer who when asked to make a determination of a social housing property would have to follow the same, and more generous rules that apply to private properties! Yes the social tenant is discriminated against and this is what the NHF wants to continue by its errant deterministic view that the number of bedrooms is ‘what the landlord says it is!’
Hence the status quo is that a private tenant can have more spare rooms paid for by housing benefit than th social tenant can! Bet you love that don’t you IDS!
Aren’t you lucky the NHF who claim to represent social landlords don’t realise this discrimination and have not put out, as they bloody well should have done, a paper exposing this blatant discrimination. Yes either that of the NHF do want to squeeze more tenants into social housing properties than is permissible in private rented!!
No doubt the NHF will now try and excuse this on the fact that a Rent Officer referral is as frequent as a blue moon to a social housing property and as such they had not seen this line of argument. Though probably not before the CIH issue a similar overly deterministic and de facto publication on the matter! In short the NHF as being as omniscient in this as OVH attempted to be in their disgraceful and outrageous ‘disclaimer’ letter that I discussed last week.
What the NHF said on LinkedIn in their own group entitled “National Housing Federation – Welfare Reform discussion network”
Bedroom sizes and statutory overcrowding
We’ve become aware of a rumour circulating on facebook and elsewhere that bedrooms under 70 sq ft should not be counted for the purposes of the social housing size criteria for claimants of Universal Credit and Housing Benefit. This rumour is incorrect. Further details are on our website.
This was followed by lots of nodding dog sycophantic comments from other members of the group – ie housing professionals who think what the NHF say is the de facto Oracle on all things housing including the legal position which of course it can’t be. What really angers me is that they try to blame this “incorrect rumour” on vulnerable tenants on Facebook or similar social media sites. I first raised the minimum bedroom size issue over a year ago and first worked with it over a decade ago as it was used for the dispersal of asylum seekers programme and all rooms had to be 70 square feet to be allowed to go onto the asylum seeker housing contract each regional authority held with the Home Office.
So yes an asylum seeker is better treated than the social tenant in terms of benefits for housing!! Wonder how well that will go down with the UKIP dominated Tory party!
The article above sees the NHF dismiss this ‘incorrect rumour’ as they put it by ridiculing the notion of the half a bedroom which a leading QC has termed a room between 50 and 70 square feet. The NHF ridicule a leading barrister’s opinion no less in their determination to appear omniscient! Yet they go on to say and allow the notion of half a person!! Half a bedroom is much less conceptual than half a person yet this clearly escapes the omniscient NHF.
Their final sentence goes on in this omniscient deterministic bent when it says: –
“There may sometimes be a legitimate question about whether a particular room should properly be designated as a bedroom, but this is a matter for landlords to determine.”
That is false and it is NOT simply what the landlord says and especially not given the Rent Officer factor I discuss above. Time to repeat my very pertinent analogy of what was witnessed on the TV news a few weeks ago by the whole country – the through-ceiling lift as this describes WHY a private tenant is more favourably treated in HB terms than a social tenant.
The through-ceiling lift – is as it suggests where a disabled person has a lift from a downstairs room which goes to an upstairs room. The case on the TV news said that the lift took up so much of the upstairs room that it was impossible to fit a bed in it yet it was still being counted for bedroom tax purposes as the property was a 3 bed one on the tenancy agreement which was then adapted to become in reality a 2 bed one.
If this was in a private property the Rent Officer would be guided by the Rent Officer Handbook and the RO would correctly rule after following this guidance say the property was a 2 bed one, which it is, and only the 2 bed LHA rate of housing benefit would be applicable. That guidance is as I said above and the property is – in reality and fact – NOT what the landlord determines and NOT what the landlord says it is on the tenancy agreement. In fact the tenancy agreement is wrong and need to be changed to reflect this.
It cannot hold – legally – that the exact same property can be determined for the payment of Housing Benefit to be a 3 bed if its landlord is a social one and a 2 bed if the landlord is a private one. That is a blatant duplicity and a blatant discrimination which the law could not uphold.
Further, the DWP do not and never have said what the landlord determines the number of bedrooms IS the number of bedrooms and that’s that! They said it ought to be in a memorandum but not that it IS and the DWP also steadfastly refused to rule out what a bedroom is in the official guidance they gave to LAs – the A4/2012 HB circular.
In this we see the guidance saying that the number of bedrooms a property has is what the landlord says it is when they inform the LA of this having accurately described the property.
So we come to another specific HB appeal ground for the social tenant affected by the bedroom tax.
The LA in considering whether the bedroom tax applies to a property has asked the social landlord for their view on how many bedrooms the tenant’s property has. That is what the A4/2012 guidance says and what the LA must follow. So if the social landlord has said the property is a 3 bed one when the tenant maintains it is a 2 bed plus a boxroom then the tenant can challenge that on two grounds. They can challenge the landlord’s view that it is a 3 bed and they can challenge the LA’s simple acceptance of this landlord view.
The LA would not simply take a private landlord’s opinion that a property is a 3 bedded one would they? They would have it checked as after all this is public money and the LA is a guardian of the public purse in this regard. So why should they simply accept the social landlord’s opinion that the property is a 3 bedded one?
Anyone who has ever worked in social housing knows that the smallest bedroom is often very small indeed with the majority being possibly less than 70 square feet. Some social housing properties could have the smallest ‘bedroom’ at less than 50 square feet such as 7ft x 7ft and that size of room is legally not a bedroom under the 1985 Housing Act. If a private landlord attempted to rent a 7 x 7 room out then he would be prosecuted by the LA as in the Reigate case recently and it would definitely NOT qualify for any housing benefit as the Rent Officer would not permit it. Yet why is it acceptable for public purse monies to be paid for such a bedroom if the landlord is a social one? That is patently absurd.
This is a real fear for social landlords who KNOW that many of their smallest and so-called ‘bedrooms’ are in reality a boxroom. They fear the loss of income and rightly so if a property is downgraded from a 3 bed to a 2 bed and the reaction of their financiers to this reduction in the property asset value – a 2 bed being worth far less than a 3 bed in simple terms. Yet instead of being creative and reclassifying a property as say a 2.9 bed one they are adopting the ostrich syndrome and hoping this discrimination they have now in their favour over a private landlord continues. That is an incredibly high-risk and stupid strategy as the minimum bedroom size issue and this current discrimination they hold of having their word simply accepted by LAs in determining HB claims will be challenged legally.
When it is challenged and if they lose the loss in financial terms for social landlords could mean closure! So relying on this not coming to the courts or allowing themselves to be reassured by the omniscient NHF publications is a risk way too far.
It costs tenants next to nothing to appeal a HB decision on the bedroom tax and they should appeal any such decision on the above grounds and I strongly suspect they will. There are plenty of angry housing professionals out there over the bedroom tax just as there are plenty of angry welfare benefits and rights officers who are angry over the unfairness of the bedroom tax. Just as there are plenty of angry housing and other lawyers angry over the unfairness of the bedroom tax that will support the social tenant in such appeals and in legal challenges. This is a massive public interest issue too so the massive cuts to legal aid will not prevent such cases being taken and argued and that exposes the risk too far strategy from social landlords.
Yes I fully agree they have been well and truly shafted by the government in the bedroom tax and they will suffer massive financial losses because of it. Yet they have done next to nothing except adopt the lazy consensus tag they were given by Grant Shapps the former Housing Minister and that is a risk too far, ably aided and abetted by the NHF and CIH.
So WHEN, and not if, the social tenant challenges the pig’s ear of discrimination and lack of pre-thought the coalition put into this policy the social landlord is going to be placed in an even more invidious and financial precarious position brought about by not challenging the bedroom tax.
Social landlords like to claim they are community champions who are best placed to look after the interests of the social tenant. Even if that is true all they have done (with the few honorable exceptions I have previously applauded) is bugger all to help the social tenant except pass on the bedroom tax’s top-down imposition – from central to local government to social landlord – onto the poor vulnerable tenant at the bottom of the chain.
In focusing exclusively and not as just one needed dimension on the bricks and mortar position of their own finances and neglecting the people dimension, or the lot of the social tenant, what they like to call the customer for pity’s sake, social landlords have exposed themselves to far greater arrears losses than if they had done the right thing and challenged the bedroom tax for and on behalf of the social tenant – an irony that will being a smile to the face of the rightfully disaffected tenant and what they deserve for this high risk business madness!
The social tenant in appealing their HB decisions will FORCE the social landlord to lobby government too just as it will force LAs to put pressure on the coalition – something they should have done in any case. Anyone see the bedroom tax being abandoned and the social landlord forced to write off bedroom tax arrears?