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:
- 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!
- 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.
- 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 https://speye.wordpress.com/2013/04/09/grounds-for-all-to-appeal-the-bedroom-tax/
Then you have all the information you will need to write in your own hand a formal housing benefit appeal.