The Bedroom Tax loophole

The Bedroom Tax LOOPHOLE!  Yes that’s got your attention hasn’t it reader! And its correct there is a huge issue that can be termed a loophole in the bedroom tax decision making process – it’s the Rent Officer service.

This loophole gives all 660,000 a very powerful argument and ground of formal appeal to have their bedroom tax decisions quashed and their respective councils will all have to go back and do the decision again and properly this time.  If that’s correct this may mean local government is hit with a bill of over a billion pounds.  More importantly it means none of the bedroom tax decisions made can be relied upon in law and they should all be thrown out for that reason especially given the dire financial consequences the bedroom tax decision holds for each tenant household.

I am most of the way through drafting a full argument on this and so far it runs to over 4000 words.  Here I give the simple overview which all stems from the DWP ignorance of Housing Benefit Regulations and specifically little known and hardly ever used regulation HBR paragraph 3 of schedule 2 & (SPC) paragraph 3 of schedule 2 which was amended on 1 April 2013 that is AFTER all bedroom tax decisions were made and so was a current regulation when all 660,000 decisions were taken by local councils.

HBR paragraph 3 of schedule 2 & (SPC) paragraph 3 of schedule 2

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

Read the above regulation which I remind was fully in place while every bedroom tax decision was formulated.  It says the Housing Benefit Officer (HBO) NEEDS TO refer each case where the accommodation is larger than is reasonably needed by the claimant.

It correctly reads when you take out condition (a) which you can because of the word OR before condition (b) that:

You only need to refer RSL rents to the rent officer if accommodation is larger than is reasonably needed by the claimant.

There is no double or alternate meaning of this and it says clearly that to accord with Housing Benefit Regulations – which is what every HBO HAS to follow and cannot have discretion about – that every potential bedroom tax case in registered social landlord accommodation needed to be referred to the Rent Officer service.  If it wasn’t then the HBOs at every council up and down the land have completed a flawed and unlawful decision making process and they need to go back and do them all again.

The regulation when it says accommodation is larger than reasonably needed MUST include EVERY bedroom tax case as that is the nature and essence of the bedroom tax policy.

There are many reasons or explanations why this didn’t happen but they remain explanations that cannot be excused:

  1. The regulation relating to social tenants has been so infrequently used that many council’s wouldn’t even be aware of it.  In fact Wiltshire Council seem either blissfully unaware of it or have decide not to use it which is a blanket policy that fetters their discretion and is for those reason unlawful and needs to be thrown out.  I am reliably informed that the last time one council used this regulation in these circumstances was in 1992 such is its rarity!
  2. The DWP must have been aware of it as indeed they took it out of play from 1 April 2013 yet their heavily prescribed a4/2012 guidance fails to mention it at all and that is significant.
  3. The rest of the DWP guidance in the A4/2012 overtly steers the HBO away from making a correct decision and focuses heavily on reducing the cost of each case to a local council as the primary issue

The full explanation will be a long read with plenty of substantiation why a council has to do what the law says or what HBR says or what guidance says and CANNOT decide not to do so or have discretion.  However the most important matter is that this ‘loophole’ which is an ugly word and means that the policy was not thought through (or IDS doesn’t know his arse from his elbow if you prefer!) and this issue enables all 660,000 to launch a formal and powerful argument appeal to the bedroom tax decision.

All 660,000 bedroom tax tenants should do so as they have been shafted by a behind closed doors desktop exercise all geared to save money on HOW the decision was arrived at.  The law and justice are two separate things and the courts and tribunals interpret the law and don’t necessarily dispense justice.  Yet in the case of the bedroom tax decision making process they are most definitely one and the same.

If there is a huge take up of appeals which is just and right – and not a campaign of direct action or civil disobedience or any other term of nonsense some who should know better describe  it as – then the bedroom tax policy WILL fail as it deserves to fail.  Get appealing

Quick and simple Update

Once you understand the nature of the appeal challenge above – on HOW the bedroom tax decision was formulated go back and look at my 26 page of A4 blog which gives about 20 similar reasons for appeal grounds on HOW the decision was taken which is here

Then you have all the information you will need to write in your own hand  a formal housing benefit appeal.


30 thoughts on “The Bedroom Tax loophole

  1. Joe this is something that occurred to me , if i was in private rented the rent officer would have to come out to mine ..yet as its social housing they are waving my right to be treated in the same way as a private rented tenant under law is ..blatant discrimination !

    1. Yes – that’s another appeal ground – It also shows how bizarre IDS’s guidance to HBOs was – treat the social tenant claim with less rigour than you do a private tenant!

      1. Hi joe how will i no if i’m entiilited to this bedroom loop hole? ive been in my house for 27 years and on bennfits inc working tax credit for many years now not sure how long thou..Will they contact me not sure what to do now?

  2. I’m guessing Joe that as time has gone on, someone at the DWP realised that as the law stood then that people could use that bit to lodge a formal appeal so they removed the clause to prevent it… but after the decesions had already been made.

    My moneys on them doing the same as they did with the workfair ruleing and will just apply another change to retrospectivly remove the right from a date prior to 1st april… probably along the lines of “the right of referal to the HO prior to this amendment also removes the right prior to the date of change” or somesuch legaleaze.

    However it does show the utter incompetance of the DWP and IDS, once again, and their failiour to see and understand how the law works to introduce stupid, idealistic, and damaging legislation.

    Sadly it was Blair who first used this wheeze of retrospective legislation (it had been done before but I believe it was in the early days of parliment) when he introduced IR35 and at a stroke proved that the law could be changed in retrospect which I believe was a hugely damaging and dangerious precedent to set in modern times.

  3. great stuff Joe, it is all starting to make sense to me now, how us under occupiers are being shafted by this fascist Govt, by our councils and our HA’s what a bunch of b******ds they all are.

  4. RE my previous comment, ” by our councils and our HA’s what a bunch of b******ds they all are”
    special attention to WPH and WMBC

  5. Reblogged this on Vox Political and commented:
    Here’s an article that needs a little more exposure, especially after Saturday’s demonstrations against (among other things) the over-occupancy charge – or, as we know it, the Bedroom Tax. It seems that, according to Housing Benefit Regulations that are currently in force, if it is believed that accommodation is being overoccupied, the case MUST be referred to the Rent Officer service for a decision. If this has not taken place, but you have been docked Housing Benefit under the ‘over-occupancy’ regulations, then your Housing Benefit Officers have made a flawed and unlawful decision.
    To me, it seems likely that we are looking at another cock-up of Workfare proportions and can soon look forward to another piece of retroactive legislation that will seek to legalise the mess created by ill-conceived, ill-executed nonsense that should never have been passed into law in the first place.

  6. is it true if you take up the muslim faith and have a spare bedroom that, this spare bedroom can be used for prayer and you do not have to pay the extra???i think alot of people will be turning muslim if this is true.

      1. Hi Joe ive been in my house for 27yrs not sure how long ive been on bennifts thou as i have claimed working tax credit in yrs gone by.. how will i no if im entitled to it? kind regards

  7. This seems so complicated in laymens terms to understand. To ask some one to write an appeal on this loop hole is going to need some one compitant with legal issues and ligislation. It going to be some one with legal qualifications to get this underway. Its going to have to be a large organisation like a trade union that is on the side of the housing tenant.

    1. I disagree and heres why.

      (a) the HB officer can ONLY and HAS TO follow the law and HB regulations. (b) when HB regulations say very clearly that the HB Officer must refer a case yet didnt do this, they have acted unlawfully. (c) hence appeal ground is that they didnt do what they have to do and (d) the loophole as stated in the blogpost has all the argument any tenant needs

  8. There is no loophole.

    Reg 7A(4) allows decisions where Housing Benefit regulations change (by virtue of reg 88(3)) A change in legislation is a change in circumstances.

    Reg 8(2) states that in cases where a change will occur in the future, the effective date of the decision is that future date.

    Reg 8(10) confirms that a regulation change is a change of circs and it has effect from the date the regs change.

    Therefore there is no loophole as the above legislation well and trulty closes it.

    The 660,000 advance Housing Benefit notifications are correct and in accordance with Benefit Legislation as per the above regulations.

    The date of decision is the date of the change (and not the date of the letter in cases of advance notification). The law in force would be the law applicable from the 1st April 2013 and not before as advanced notifications regarding Bedroom Tax reductions are applicable from the 1st April 2013 and not before.

    1. Interesting argument but one I dont agree with. I am well aware that future decisions can be taken now and HB regs allow for it yet that means any council could send me a bedroom tax decision for 20 years time which is frankly ridiculous.

      Your argument confuses the effective date of decision with HOW the decision was made and they are two separate issues. The HBO cannot simply choose to overlook the then existing HB regulations such as referral to RO as this is not within the powers of the HBO. The HBO has to apply existing regulations even in light of future changes in HOW the decision is arrived at and especially so given the important and significant consequences of the bedroom tax decision and in the context of no legal definition of a bedroom which the HBO must have to decide – AND more importantly it will be up to a judge to decide on that and not me or you.

      Nobody can prejudge that (no pun intended) but it remains a very powerful argument and especially when the A4/2012 guidance which is all the HBO had to go on states nothing at all about this referral issue at all. If your view of this is correct you really do have to ask why was this NOT included in the guidance

  9. Just a note to…. Thank You …..Joe Halewood… For coming to KHT meeting 25th April 2013…And explaining variables of BT & answers…. which would in effect …. Stop the BT & councils going bankrupt over appeals lodged for BT ….. I wonder how long it will take before they ask you in again…. for a chat ? Mmm…. lol….
    Best Regards,
    Maureen Fitzsimmons
    P S Many hundreds more Thank You..s from people… who have been given hope when there was absolutely nil & none …………..x

  10. Liz White-Davies commented. What would any appeal hope to achieve?

    The bedroom tax system might affect over half a million people nationally, if everyone appealed, let alone they had to re-appeal against the decision some housing authorities could go bust.

    The cost of the appeal judges and county court hearings are not cheap. It would at least cost a £1000 and upwards. If referred to the higher courts this would be very expensive.

    If taken to the European of human rights this could be even more expensive
    and you could even sue the government for an early retirement.

    (Find out which one of your human rights could apply to you. The Articles are basically simple to understand. Briefly e.g. Article 8 ‘Respect for home’. “The citizen has a right to occupy his home and not to be expelled from it” (35)

    The appeal process for this amount of people would takes years not months and the overall cost would be in billions not millions. And possibly the time it will take to have your appeal hearing another government might come in and scrap it as said by Labour leader Ed Miliban.

    I commented yesterday on a different post blog by Speye/ Joe “The bedroom tax smoking gun!”

    How do you challenge this Government regarding its ancient draconian action? Of excessive rent increases to force people out of their homes by means of EXTORTION which is criminal offence.

    If someone knows about suing in the UK courts or European courts of human rights who could get a UK Law Firm or American which knows there shit in regards to big money suing in the millions, well there 600,000 of us and I could do with an early retirement pay cheque and a shark Law Firms could make many, many, millions from this ancient draconian government policy actions.

  11. If this loophole did exist it would only assist Housing Association tenants whose HB takes the form of a “rent allowance”. In “rent rebate” cases where the Council is the claimant’s landlord, referral to the Rent Officer doesn’t happen.

    As for the loophole itself, it doesn’t exist for the reasons explained by Al Dermot: the bedroom tax decisions made ahead of 1 April 2013 were made on the basis of the regulations as amened from 1/4/13, this happens every year in a small way when the annual uprating is carried out. Moreover a referral to the RO can only be made in the event of certain “triggers” – mainly a new claim or change in household composition. Absent either of those triggers in any particular case, there were no grounds to make the referral during the bedroom tax preparations. But even if there had been such grounds, the eligible rent determined in accordance with the RO determination would have been immediately superseded from 1 April as a consequence of the change in the Regs.

    There really is no loophole here.

    1. I have never said anything factually different to that and I quoted the regulation including the triggers one of which is the property is too large for the housing need which is the essence of the bedroom tax.

      Superseding decisions point was covered in an earlier post and you view is the same as HB having their cake and eating it in as they want it one way for making decisions but not allow for notification of decisions (awards) which they claim was before April 1st. The term ‘loophole’ was used but doesn’t accurately describe I agree and also said that. Yet he fact a RO referral was available but not used for HA tenants IS grounds for appeal. The fact it could not have been used for council tenants is also a ground of appeal (not a level playing-field).

      Ultimately, we are all entitled to our opinions and I respect yours here, but it will come down to lower tribunal judges to decide (or even higher) and all i di was provide a possible set of legitimate grounds which the tenant has nothing to lose by using at appeal

  12. You make some good points on this blog – especially about those councils who are hiding behind Circular A4/2012 and insisting that there is no right to appeal against the Council’s decision to adopt a landlord’s property description withoput question. You are absolutely right to say that the number of bedrooms is a question of fact to be determined by the HB decision maker and is therefore capable of being challenged on appeal. But there really isn’t any mileage in this loophole argument. One modification to my earlier comment – if there had been a Rent Officer referral before 1/4/13 on size grounds that would last for a year so it would buy the individual some time. The difficulty though is the trigger for referral in the first place. There are two requirements: the first is that one of the events set out in HB Reg 14 has occurred (new claim, change of address, change of household make-up), and the second is that the Council considers the accommodation to be unreasonably large. Without the first being satisfied, you don’t get as far as the second. The Council cannot just arbitrarily decide one day that it would like to refer a case to the Rent Officer. If I understand your argument correctly, you are saying that an appeal could be made against a decision to apply the bedroom tax from 1/4/13 on the grounds that the Council did not refer the case to the Rent Officer before 1/4/13. To make out those grounds properly, the claimant will need to identify the date on which the referral should have been made in accordance with Reg 14. There is a risk associated with that strategy – if the RO values the accommodation below the bedroom tax eligible rent the claimant will be stuck with it.

    A Council tenant has no appeal on these grounds – the Tribunal would strike out the appeal as standing no prospect of success. It might not be a level playing field, but the Regs make no provision for the RO to deal with rent rebates.

  13. Reblogged this on Grannie's Last Mix and commented:
    Although this excellent blog post appeared back in April its just as pertinent now. Everyone who knows someone struggling with the pernicious bedroom tax should share this with them. I also discovered yesterday that allegedly some people have successfully avoided bedroom tax by reclassifying their spare room as a prayer room and placing a small altar in the corner of the room. As I say, this is hearsay and I have no way of checking how true it is. I’m assuming if it is true its got something to do with government/LA’s not being able to discriminate on grounds of religion. If anyone has any more information about this I’d love to hear it.

  14. My sister lives in a council flat she is on benefits has to pay the bedroom tax,and also has to move to a one bed flat which means her son and grandson cant visit as they are too far away to do a day visit.Does this loophole help her not have to move.

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