Here I discuss with another example why the way or HOW councils have made the bedroom tax decision is far more important than the decision they have reached for the social tenant to appeal.
I want rid of the bedroom tax and the quickest way I see that happening is if as many tenants as possible appeal it formally. I maintain this is the most likely way to challenge it and get rid.
Ten years ago this month in April 2003 I challenged a local council for the first time in Supporting People which is the funding providers of support services to vulnerable people such as those who are homeless, fleeing violence, have mental health or physical or sensory disabilities get. The council wanted the money back and having just got these providers this SP funding which ran into tens of millions of pounds per year nationally my role was about to change. 95% of my time for the next 8 years or so was spent fighting the providers corner and telling councils to, politely of course, go away and you are not having the money back. I was successful and well paid and developed many creative ways how to challenge local government – the exact same skills needed to appeal the bedroom tax as it is local councils the tenant is challenging here.
The biggest issue which again is directly transferrable was not the merit of the council decision but the process councils had taken to arrive at the decision. In simple terms arguing the decision to cut money was unfair or wrong got you nowhere at all. It was just a moan even if it was incredibly unfair. The way to stop the cuts was to look at HOW the council made the decision and what process or procedures it took.
In simple terms if the council didn’t do what it should and had to do in making the decision then that is what I challenged – HOW they had gone about it and not what the decision meant or what merit the funding cut had. The social tenant needs to look at the bedroom tax in exactly the same way.
A few weeks ago I released a template or standard letter containing 6 simple questions to ask of your local council and this was and is necessary so you the tenant know HOW your council took your bedroom tax decision. This is the first step and you need to know rather than simply assume what the HB department of your local council has done in arriving at a decision.
Yesterday I released two posts and these are the second step in this two-step process of appealing.
The first was a very lengthy 26 pages of grounds for appeals or reasons and all about how a council SHOULD have taken the bedroom tax decision. The second gave evidence of how Bury and Wiltshire councils had done this and why I maintained they had acted unlawfully as I suspect every council will have done in making the bedroom tax decisions.
This is the tricky bit and the tenant needs to think hard and put a bit of work in as I cannot draft a template letter that all can use to appeal. Instead the tenant has to read the grounds for appeal and write them in their own language and in their own way. I can’t spoonfeed the tenants appeal with a standard letter like simply asking for more information and asking the 6 questions for more information; tenants have to do this themselves and the grounds for appeal paper gives you the ammunition to do precisely that.
The tenant needs to prepare his or her arguments for the bedroom tax appeal letter and the real tricky bit is thinking clearly because your mind id full of the consequences of having little money for food or clothing or how the hell can you afford the roof over your head with this nasty Housing Benefit cut which leaves you with a bedroom tax shortfall. It’s bad enough now never mind what the bedroom tax will mean but that is precisely what you have to do – step outside the impacts and consequences it will have and see a way to fight it. Don’t get mad get even and all those other silly expressions we all know and hear. In short don’t focus on the problem, focus on the solution.
My apologies if that reads as patronising it is not intended to and yes as I am not affected by the bedroom tax it is easy for me to say I agree. Nevertheless what each tenant has to do is focus on the solution and the best one you have is the appeal which goes to the tribunal which is an informal court where an independent judge puts you the lowly tenant on the same level playing field as the large council you are challenging.
Here is an example of what I mean about an appeal over HOW a council took the bedroom tax decision.
One of the standard letter questions relates to whether a council referred your case to the independent Rent Officer service. ALL councils can do this on two occasions (a) if your rent is too large which mainly doesn’t apply, or (b) if the accommodation is too large for your housing need which is the bedroom tax in a nutshell.
1. What do the Housing Benefit Regulations say?
Referring RSL rents to the rent officer
4.1440 You only need to refer RSL rents to the rent officer if:
(a) you consider that the rent is unreasonably high. A rent does not necessarily have to be referred because it is high, or higher than for similar properties. It must be unreasonably high before a referral is necessary, OR
(b) accommodation is larger than is reasonably needed by the claimant and others who may occupy the accommodation, including those who pay rent to the claimant.
In these cases you must have regard to all the circumstances and housing options available to the individual household.
Source: HB Reg para 3 of Sch 2 & (SPC) para 3 of Sch 2
As you can see point (b) above says a council CAN and SHOULD refer your case to the Rent Officer service if your accommodation is larger than is reasonably needed.
2. What did Wiltshire Council say they DID?
“There is no formal policy as to when Wiltshire Council would refer a
social housing property to the independent rent officer service. This would
only be done in exceptional circumstances where the authority considered
that the rent was unreasonably high”
Wiltshire said a referral would ONLY be done…WHERE…the rent was unreasonably high. This gives two grounds for appeal for every one of the 3054 social tenants in Wiltshire estimated to have got a bedroom tax deduction.
Firstly, the regulations which Wiltshire has to follow show that they could have referred the decision to the Rent Officer, yet they did not. This means in simple terms that when making the bedroom tax decision Wiltshire did not do as they should have done. Hence the decision-making process is wrong as is the decision taken because they went about it the wrong way.
Secondly, a further appeal ground is apparent as Wiltshire had a blanket policy and did not refer any cases to the Rent Officer which means they ‘fettered their discretion’ in not doing so. Again because the Council went about it the wrong way the decision is massively exposed to be appealed.
That is what I mean by an appeal over HOW a council took the decision. In this case Wiltshire had two flaws in HOW they decided all cases and so all decisions are flawed and open to appeal. Even if you are a single person living in a 40 bedroom social housing mansion in Wiltshire the bedroom tax decision is wrong and can and should be appealed because they went about making the decision in the wrong way. A crazy example yes but it shows why a process challenge is far better than a merit challenge (this is unfair etc)
What really becomes interesting, if as I suspect the appeal would make Wiltshire go back and do all decisions again, is that from 1 April 2013 Wiltshire cannot refer the case to the independent Rent Officer as this has been removed from Housing Benefit Regulations – a point confirmed by Wirral Council in Merseyside. They said in response to a request for further information on the bedroom tax decision that: –
“It is relevant to advise the Regulations have been amended with effect from 1 April 2013: Local Authorities are no longer able to refer claims from social housing tenants to the Rent Officer for the reason the property may be larger than reasonably required by the tenant.”
This is interesting for two main reasons. Firstly it confirms that prior to 1 April 2013 when ALL bedroom tax decisions were taken across the country that a council COULD refer to the Rent Officer service and proves Wiltshire were wrong.
Secondly, if the appeal means that Wiltshire have to go and do all decisions again, which is likely, then how are they going to assess whether Mrs Jones of 1 Anystreet, Chippenham, Wiltshire has a property with 3 bedrooms or it has 2 bedrooms? They simply can’t rely on the word of the landlord or that Mrs Jones tenancy agreement says it has 3 bedrooms. I keep referring back to the Janet Bell case as it is so significant. She has a three bedroomed property with a tenancy agreement that says it has 3 bedrooms yet it only has 2 bedrooms and a property however described on a tenancy agreement is not the same as the number of bedrooms it has!
Further what if the alleged 3rd bedroom is less than 50 square feet and the tenancy agreement says it’s a bedroom when I would strongly argue it cannot be? The smallest I have been informed is one of 7 feet 8 inches by 4 feet 1 inches which is 31 square feet! It is stated as a bedroom on the tenancy agreement so don’t assume that just because the tenancy agreement says it or your landlord has told the council it is a bedroom that it is a bedroom. The only way it can be determined is by appeal and let the court decide.
Moreover, just because you as the tenant have signed the tenancy agreement which says it is a 3 bedroom property doesn’t mean you have agreed it has 3 bedrooms. A tenancy agreement is a contract and contract terms are often wrong and often have to be changed. That is why one branch of law a huge branch is called Contract Law and any contract has to reflect what the reality is and not what one party such as the landlord believes it is.
I will summarise here by saying the purpose of this paper was to look at and explain why appeals as to HOW a decision is made are extremely important and they give the best chance of overturning the initial bedroom tax decision.
What has become apparent from all council responses so far is that the councils have simply accepted the word of the landlord as to what IS a bedroom and as to HOW MANY bedrooms a property contains. It has been a behind closed doors desktop exercise in ease of and reduced cost of administering the bedroom tax decision. Yet councils as a public authority cannot do that. They have to do each decision properly and have to go about that properly.
So when Wiltshire say a they did that:
“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”
– then they have acted unlawfully as each and every council has to investigate each case individually and has to do that properly reflecting the individual circumstances of each claimant – the tenant. It should not and cannot take the easy way out and then decide it has to do things properly as that is their duty which they can’t escape.
My post of yesterday gives 20 or more legitimate grounds of appeal for EVERY tenant nationally contains many more similar examples of HOW councils took the bedroom tax decision wrongly. Yes its long but read it and it gives you the ammunition you need to write an appeal.
It is your right to appeal Mr or Mrs or Ms Social Tenant and you should – unless you want to have no money to put food on your table, do not want to keep the roof over your head or do not want your children to stay at the weekend; or you do not want the grandchildren over of a weekend or even during the week so your son or daughter can go out to work; or simply don’t believe your rented property is not YOUR HOME.
One final point is when Wiltshire say this regarding a tenant making an appeal and in the context here of the tenant believing they have a different number of ‘bedrooms’ however defined. They 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.
Under no circumstances accept this twaddle! You as the tenant are appealing the way your council simply accepted the landlords word your property has ‘x’ number of bedrooms and did not check this or do as they, the council. should have done. You are NOT challenging the bedroom tax policy BUT the way in which the council applied the regulations of the policy in making the decision. This is a key difference!
What Wiltshire Council is outrageously doing here – and Bury council said the same – is they are giving you false information in the hope you do not appeal as each appeal will cost the council huge amounts of money to defend.
Councils have a vested financial interest in dissuading you from appealing and if each of the appeals cost the council £1500 to defend then in Wiltshire’s case this is £4.6m for the 3054 cases they have made unlawfully in my view. That is a REAL vested interest and you cannot believe all that they say.
Specifically here the dispute is between the claimant (the tenant) and the decision maker (the council) and your landlord is a third-party and frankly has bugger all to do with the dispute. The council is the enemy here if you like and they hope by advising you to complain to your landlord that you run out of time to appeal and/or you spend you energies blaming the landlord and do not appeal the decision of the council – a decision each and every one of them has taken in my view unlawfully and ought to be appealed.
Unless of course…well you know the rest of that dear reader don’t you!