Bedroom Tax – Informed debate on HB legal issues?

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.

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15 thoughts on “Bedroom Tax – Informed debate on HB legal issues?

  1. Joe, could you explain this please? “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.”

    1. Prior to April 2013 a council could ask the Rent Officer service to view a property and assess it – which they still can and do for a private one to see for example how many bedrooms it has. Now they can’t and may well need to view it themselves at a greater cost than the Rent Officer service

  2. Hi Joe,
    First question I would like to ask is, are there any special rules or Regs, regarding people with Mental Health issues?? There doesn’t seem to be any info on this?? It’s particularly difficult. I have Bipolar. And the stress of all this, has definitely affected me.

    Secondly, It appears, the dates on peoples letters are dated some time in March. And people are panicking. That they don’t have enough time to appeal, given it’s 1 month from the date of the letter. I’ve advised them to write requesting a new letter dated on or from April 1st.. By the way, is that a 4 or 5 week month???

  3. There don’t seem to be many people who are being awarded the DHP. I am one that has been refused. Even though I am Disabled. 95% bed bound…..I think this is a diversion by the government anyway!!

  4. I wondered, Joe, if you know anything about DLA. In respect of, are the Councils allowed to use this as income???
    Normally, it is disregarded as income.
    If you are Disabled and get ESA and DLA. Which is supposed to be to pay for your care, carers etc.
    In order to pay, the bedroom tax AND, council tax. People would have to use part of their DLA, to pay it.
    The ESA is for all bills, food, clothes, etc., etc.
    So, they ARE, taking it as income. and saying, you can afford to pay, the BT and CT.
    Surely, this is illegal???

  5. Joe, some good points. I to think this area hasn’t been looked at legally. Would a tribunal make that decision about the amount of HB payment that is awarded to Mr. Jones? Also would Mr. Jones be able to appeal the October dated benefit decision notice? Now if Mr. Jones is given £75pw in HB between April to October, can that decision be appealed against?

    1. The answer to both those questions has to be YES as all benefit decisions carry a right of appeal even revised ones that may be made in October 2013. I dont know whether a tribunal has the authority to be asked or the powers to insist, but they can of course be aske to make the decision by the tenant

  6. Debbie Price – if you email me at jennywren27@hotmail.co.uk I can let you know what the Chair of Housing has said about the matter of not enough time being allowed for appeals. My letter was dated 24 March, yet didn’t arrive till 5 April (!) so that’s taken 12 days off my month to do something. Was your Benefit Decision letter the same?
    Don’t panic- they’ve extended the time a bit. Please email me.

  7. So from my understand both as a lay person and a tenant effected by this bedroom tax, there might be a possibly of an recursion of appealing each benefit decision until there is an outcome that would stop that cycle! That is just my own observation.

  8. there is a question to be settled re s8 and it is one of Intent. By not paying even a proportion of the deduction would that become knowingly and consistently either not paying the whole or part of the rent notwithstanding that it is an issue of deduction at source by the HB assessor on wrong info-does this balance out. I have been advising that knowing the eventual outcome will be some liability, tenants however hard it is should make some attempt to save some of the shortfall to illustrate that they r responsible should a decision be made by the independent tribunal that only covers a proportion of the liability. I am thinking here really about the 50 yr old in 2+boxroom of which there are a few in god’s waiting room here in the IW

  9. The Tribunal’s job is to “step into the shoes” of the HB decision maker and either confirm the decision as correct or substitute the right one that should have been made in the first place. The Frist-tier Tribunal does not normally quash decisions on procedural grounds and remit them to be done again by the Council, but if that did hapen the remade decision would have effect in place of the original from the original date. Examples:

    1. The Tribunal upholds the appeal on the grounds that the claimant does not have a spare bedroom worthy of the name as it is too small. The outcome is that there is no bedroom tax deduction for that claimant from 1 April 2013 – the Tribunal has substituted the correct decision. Arrears of HB are awarded.
    2. The Tribunal finds that the Council’s decision w.e.f. 1/4/13 is inchoate and not properly made. The Council is told to go away and make a proper decision This happens in October. The effect is that the Council has to remake the decision w.e.f. 1/4/13 in the proper way – the ouitcome might still be that the bedroom tax applies from April. However, the claimant still has a right to appeal against the decision and the Tribunal might now decide that the bedroom tax doesn’t apply.

    Option 2 is less common – it can get horribly messy and Tribunals prefer to reach some kind of finality.

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