A few weeks ago I published a standard letter which I made freely available to all bedroom tax affected tenants that contained six questions tenants should ask the HB departments at their local councils. These questions all focused on HOW the council made the decision to apply the bedroom tax deduction.
I have received details of the responses of two councils, Bury Council in Greater Manchester by letter and Wiltshire Council by email and both these responses contain so much information for the tenant to appeal and, more importantly, very strong evidence to suggest the bedroom tax decision-making process in both councils was and is unlawful in so many areas.
If I am correct in that and even if only on one issue in each Council then this is going to cost those councils huge amounts running well into millions as it only takes one issue of unlawfulness to make the whole decision-making process unlawful in its entirety.
At worst for each Council there are cast-iron grounds for every bedroom tax affected tenant to appeal in each Council and this alone will cost many millions for each Council to defend these decisions at the tribunals. Then when these original decisions are thrown out or quashed each Council will incur many millions more in having to go back and redo every single case.
Time to look at the issues.
The first three questions of the standard letter were interrelated and said: –
- A copy of the council’s written policy that includes a definition of a bedroom.
- Failing that a copy of the councils informal or working definition of what is a bedroom for under occupation / bedroom tax purposes.
- A copy of the council’s written policy which states precisely how the council makes a bedroom tax decision
Bury Council responded with in relation to question 1 “A bedroom is not defined in the regulations.” Then in relation to question 2 with:- “The Council has taken the view that it is for the social landlord to define what a bedroom is and how many bedrooms there are in a property.”
Wiltshire Council responded by conjoining questions 1 and 2:-
“The word “bedroom” is not defined in the legislation. Wiltshire Council follows the guidance of the Department for Work and Pension (DWP) as set out on paragraph 12 of circular A4 2012, namely that it is for the landlord accurately to describe the property in line with the actual rent charged. In simple terms, we accept the information that we receive from the relevant landlord with regards to the number of bedrooms in each of their properties”
My immediate thoughts late last night when I received a copy of Bury Council’s response was No it is NOT up to the landlord to define a bedroom it is up to the council and no one else. The landlord is asked to accurately describe the property or if you like give their view (as that is all it is) on the number of bedrooms. Section 12 of the A4/2012 guidance 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.”
Interestingly Wiltshire Council’s response which I received this morning said exactly the same thing and used the same quote. Read the full verbatim extract of the A4/2012 again and you see that carefully as Bury Council clearly has NOT done so and neither has Wiltshire Council. It says the landlord will accurately describe the property and NOT (a) define what a bedroom is, and (b) how many bedrooms, however defined, each property has. Moreover, Bury Council has later said in its response it has not wavered from the A4/2012 guidance yet it has. Again this was the stated position of Wiltshire Council in their response too!
The HB Officer (HBO) in each council has to DEFINE what a bedroom is and at least have a working definition of what a bedroom is and cannot simply accept the word of the landlord.
In simple terms:-
Firstly, this is a dereliction of the HBO duty to define.
Secondly, it is akin to a social landlord making benefit or welfare policy.
Thirdly, the social landlord has no authority to do this.
Fourthly, the council has no authority to allow the social landlord to do this.
Fifthly, note that the councils merely leaving the definition up to the landlord is a blanket policy and they have fettered their discretion by doing so and this is an unlawful policy for that reason.
Start to unpick that or consider carefully and you see that both Councils have in their respective decision-making processes abandoned or fettered their discretion, they have taken the easy way out and I maintain that ‘easy way out’ is unlawful. To be clear this is not challenging the legislation itself at Wiltshire Council erroneously believe and comment upon, it is challenging the way each Council has applied the regulations and come to a decision.
Even if any council simply accepts the landlord’s word they have made a decision to accept the landlord’s words haven’t they? Both have accepted that the number of bedrooms, however defined, is as the landlord says and Bury Council has gone further by accepting the landlord’s definition of a bedroom which it is not for the landlord to do or for the Council to accept.
In fact if you read the A4/2012 guidance at section 20 it begins with:-
“There is no obligation on landlords to reply to a request for information.”
And there is another appeal ground and another potential unlawfulness in both these Councils. If the landlord is not compelled to provide the information then how can it be if the landlord does the word of the landlord becomes sacrosanct? Further how can both these Council’s who state they follow the A4/2012 guidance – which is highly prescriptive and not ‘mere’ guidance such as look before you cross the road – decide that they will take the landlord’s word as definitive? In ease of administration or ‘taking the easy way out’ dimension yes, but in terms of making a decision and a legally binding decision that can see a tenant claimant lose 20% or more on that tenants minimum subsistence level income or welfare benefits as that is the correct context.
When the bedroom tax decision is seen in that correct context is arbitrary as there is no formal policy in these Councils and it massively fetters the discretion of the Councils it becomes a huge legal mess and massive grounds for appeal.
Let’s develop that even further. The social landlord has a vested interest in stating a property has 3 bedrooms when it has only 2. The Janet Bell case I reported on here shows that a property is not the same as its number of bedrooms and the definition of and number of bedrooms in each property are the key determinants here. Yet both Council’s have chosen to ignore or disregard that conflict of interest of the social landlord, who I remind in any case need not provide any information or data at all!
Social landlords are running scared of challenges to the definition of a bedroom and their number as if a property is decided to be a 3 bedroomed one that only has two bedrooms then the total asset value may fall as may their rental income stream. In that correct context it becomes even more irrational of a council to simply accept the word of the social landlord as to the definition of and number of bedrooms. Yet that is precisely what Bury and Wiltshire Council’s have DECIDED to do.
Let’s look at the decision to simply accept the landlord’s word from another angle. I have seen what Bury Council was given by a social landlord and it is simply property address and number of bedrooms (in the landlord’s view or opinion.) It does not contain any size data of these alleged bedrooms and so by merely accepting the landlord’s word these are in fact and in law ‘bedrooms’ what has the Council done?
Go back to section 12 of the A4/2012 guidance and read again carefully:
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.
The first part of sentence one says there is no definition in legislation and the second part of that sentence says no minimum size in regulations. These are two different things and what it means but does not say due to its clever wording or sophistry is that there is a legal definition in legislation of what is NOT and cannot be a bedroom – a room of less than 50 square feet (S326 1985 Housing Act.) Yet the council has not asked for room size and so cannot KNOW that a bedroom as claimed by the landlord is in point of fact and in law a bedroom. That is not only fettering discretion it is fundamentally wrong and a huge misreading of the A4/2012 guidance. As I argued earlier that is a fundamental appeal and legal challenge to the way these Council’s have applied the guidance as part of their decision-making process and not a challenge to the legislation itself which both Bury Council and Wiltshire Council maintain it to be.
Every tenant affected in Bury and in Wiltshire Council’s given a bedroom tax decision has significant grounds for appeal and for legal action against those councils.
Again as I said above there are so many grounds to appeal over the bedroom tax decision-making process for each and every one of the 660,000 estimated to have received a bedroom tax deduction. I have merely scrape the tip of the iceberg so far and have another 10 or more arguable appeal grounds and published here in more detail.
The bedroom tax decisions are without hyperbole truly life-changing decisions alone even without factoring in first time payments of Council Tax, welfare benefits increasing at a lower level than inflation and all other contingent factors.
One other really fascinating response was from Wiltshire and mirrored in the Bury response too. Wiltshire Council said:
With regards to a possible appeal, you cannot appeal against the legislation itself. If you believe that your property does not have two bedrooms, it is suggested that you take this up with your landlord in the first instance, as we have simply accepted the information that we received from them
Bury Council said:
“Where there is a dispute the customer will be asked to contact their landlord and provide the Council with written evidence from the landlord …”
Silly me I thought an appeal to a benefit decision was merely a matter between the two parties of claimant (tenant) and decision-maker (the Council) and didn’t realise that the claimant as appellant has to contact third parties!!
Forgive my sarcasm reader but this is bloody ridiculous of both Bury and Wiltshire Council’s to state such a view and I would argue outrageous and unlawful too. The Council’s in both these cases have relied upon without any questioning alleged ‘evidence’ of the landlord in a decision of which they are not mandated to take part and have not sought to verify and now they are directly claimants to complain to this third-party as a way of avoiding scrutiny of the Council’s decision and decision-making process!
Just a simple addition to that is please note that Bury and Wiltshire Council’s failed to answer the preamble question in the standard letter and inform the tenant of the date of when an appeal had to be made by! That ‘omission’ takes on a new light doesn’t it in that context! Oh yes of course that is an appeal ground too and a very pertinent point to add to all appeal grounds too.
Dear Tenant – were you wavering whether to submit the standard letter? Did you think you had no legitimate grounds for a formal HB appeal which follows? Are you still of that view which was perhaps derived from thinking the 6 questions seemed innocuous? Well you know what to do and when you do please remember to put it in a letter and not an email so you get a written response by way of a letter from your council on their letter headed paper.
The Bury response is below
What Bury receive from the landlord is below – Yes folks that is it!! The council took a decision based on that and that alone from the landlord who did not have to provide anything at all yet they maintain is definitive! The entire bedroom tax decision-making process is a behind closed doors desktop exercise that can take the social tenant significantly below minimum subsistence levels is based entirely on this!!
That just cannot be right or lawful