One of the criticisms of the bedroom tax appeal strategy and a legitimate one is that it merely delays the inevitable.
That argument goes that if the social tenant wins on a decision-making process ground such as the council did not refer the case to the Rent Officer when HB regulations says they should have done and the tribunal throws out decision and the council has to go back and make the decision again properly. The council will have to do this and then come back with the same decision albeit correctly determined and hence the inevitable is merely delayed.
Let’s leave aside the fact that this will be extremely costly and time-consuming to the local council and to the judiciary will so many appeals the tab for which must presumably be picked up by central government or even the underlying purpose that it will draw a huge amount on unwanted political attention on central government. Also leave aside that as the councils are now not allowed to refer a RSL case to the Rent Office service from 1 April 2013 and so to arrive at a new decision will be costly if it has to adopt a similar procedure of determining each case on an individual basis.
Rather let’s firstly assume the new decision comes back and is all fine and dandy legally in terms of process but is the same decision on 1 October 2013 and we merely consider the social tenants situation in relation to the amount of Housing Benefit they receive for the period 1 April 2013 to say 1 October 2013.
In short Mr Jones appeals the 25% deduction of £25 on his £100 pw rent. Tribunal agrees yet Council A comes back with same decision on 1 October 2013.
What is the HB payment for Mr Jones in the 1 April to 1 October 2013? Is it £75pw or is it £100pw?
What follows is either mere whimsy on my part or an area not looked at legally. Yet it requires some thought and will hopefully attract some comment from some experienced or learned minds which I strongly suggest it needs.
(a) Mr Jones’s decision for 2013/14 was made in 2012/13 as it had to be. So as the decision is wrong does the level of HB revert to the status quo of £100 per week which was the case when the decision was made or does it revert to £75 per week?
(b) Can the tenant or appellant ask that the HB payment level does revert to the pre-existing position at the time when the decision was made which amounts to the same £100 pw for the April to October period?
(c) HB over payment regulations state that where a general error has been made by the HB department that the over payment of Housing Benefit is not recoverable, So does the reverse apply and the tenant can claim an under payment of HB from 1 April to 1 October 2013 because this is akin to the ‘general error?’
All of the above I do not know the answers to yet they are worthy of discussion and especially point (c) as the implications of this are massive for all involved.
I could argue a strong moral case that because the council HB departments disgracefully made all bedroom tax decisions in a behind closed doors desktop manner without the due diligence and individual assessment of the individual claimants circumstances which is my strongly maintained view of all bedroom tax decisions – the primacy of the cost of the decision rather than the arriving at the correct decisions if you will which is all too evident in the heavily prescribed A4 guidance of 2012.
Yet moral arguments is not the issue and what I am seeking informed debate on is the general question of is it arguable legally that Mr Jones should receive £100pw in HB for the period 1 April to 1 October 2013?
Informed anonymised comments welcome.