Kipling makes exceedingly good bedroom tax appeals

I keep six honest serving men they taught me all I knew.  Their names were What and Why and When and Where and How and Who

– said (Rudyard) Kipling.  Think of that when making your appeals on the decision-making process elements of the bedroom tax appeal and they will be exceedingly good ones ala Mr Kipling.

I have written that the bedroom tax decision-making process is ripe for appeal.  What I mean by that in the simplest possible language is the tenant should think about HOW the decision was made before drafting the appeal.

Somehow a decision needs to be made on whether the tenant has too many bedrooms as the under occupation charge – or bedroom tax – can only be levied on the tenant having one or more bedrooms over their housing need.  It cannot be levied on a spare toilet or a spare kitchen or any other spare room, it is only levied on a bedroom.

The job of the Housing Benefit Officer (HBO) is to decide if each tenant has too many bedrooms and that involves an implicit issue – the HBO has to decide what a bedroom IS.  Nobody can decide whether you have too many bedrooms unless they know, and can define, what a bedroom is.  I can’t decide if you have too many oranges if I don’t know what an orange is can I?

The HBO is guided to ask the landlord for information on how many bedrooms a tenant has.  Yet if the HBO simply decides to accept the landlord view on that the HBO still has made the decision.  The HBO has decided to accept the landlords view or word.  The fact is the HBO could decide NOT to accept the landlord’s view or word on how many bedrooms a property has.

The above is what is known as stating the bloody obvious!  It is obviously true and valid and there is no other possible explanation.

YET social landlords and housing bodies and housing professionals are adamant and wrong in that they decide what a bedroom is and how many bedrooms a property has which is a nonsense and that cannot be the case.  Well at least in bedroom tax terms. Any landlord is free to say my property has 43 bedrooms but the issue here is how many bedrooms a property has for bedroom tax purposes.

The private landlord has a financial imperative to get as much rental income from each property.  The private landlord gets more housing benefit income if the HBO decides he has a 3 bed property than a 2 bed property.  In those circumstances the HBO asks the independent Rent Officer to assess the property and come to a determination which the HBO is free to decide whether to accept or not.  The HBO was permitted to do that for all RSL bedroom tax properties yet invariably did not do that.  The social landlord also has a financial imperative to have the property classed as having as many bedrooms as possible as they believe if a property is decided to be 2 bedrooms rather than 3 bedrooms then they will lose rental income and the value of the property reduces too.

YES any landlord can write a tenancy agreement which says a property has 3 bedrooms and a tenant will have signed that tenancy agreement or TA.  That TA is a legally binding contract too.  YET only a court can decide whether the terms of any contract, including a TA is correct or not.

Until a court looks at a TA then we can only assume that a TA is correct and its terms are indeed lawful. Or put another way until a court looks at a TA we can only have the opinion or view of a landlord, social or private, that it is correct and lawful.

Take one of the hotly debated bedroom tax issues, that of bedroom size.  Debate rages over anything less than 70 square feet is a bedroom AND whether that law, the 1985 Housing Act, applies.  What if a tenant signed the TA before 1985?  That TA would not include the terms of the 1985 Housing Act, or the terms of the 1998 Housing Act or 1996 Housing Act either would it?  The law changes a lot in 30 years yet this does not mean a tenancy agreement is rewritten after every housing law change!

So when landlords and housing bodies say that the number of bedrooms is what it says in your tenancy agreement such a view cannot be correct.

Above I mentioned that the HBO is guided to ask the landlord for information.  That guidance is the HB circular called the A4 of 2012.  Paragraph 20 of this A4 of 2012 says: –

“There is no obligation on landlords to reply to a request for information.”

If the landlord is not obligated to provide any information at all then how can the landlords decide on what a bedroom IS and how many bedrooms a property has?  If the view of the landlord is not mandatory it cannot be definitive in deciding the two key questions can it?

The definitive answer to the questions (a) What is a bedroom and (b) How many bedrooms does a property have for bedroom tax purposes – are the sole decision of the HB Officer and nobody else.

What flows from that for the bedroom tax appeal?

The bedroom tax decision-making process is entirely the decision of the HBO and therefore HOW the HBO made the decision is an area of significant scrutiny for a formal HB appeal. The HBO has to follow the law, the HB regulations and also guidance and in that order of priority.

The Law – as there is no legal definition of a ‘bedroom’ then the HB regulations or HBR take priority.

HBR – the HBR say that when “accommodation is larger than reasonably needed by the claimant” then the HBO needs to refer that property to the independent Rent Officer service.  Accommodation being larger than the housing need is the essence of the bedroom tax.

Yet if the HBO didn’t do this referral then the HBO has either (a) chosen to overlook this regulation which is wrong, or (b) does not know of the regulation which is also wrong too. When I say ‘wrong’ here it means the decision is unlawful and needs to be overturned because the decision-making process the HBO undertook was unlawful.

There may possibly be a third option or (c) the HBO decides the regulation doesn’t apply as when the HBO notifies the tenant of the eventual decision which is after 1 April 2013 that this regulations won’t apply anymore.  Yet that is also wrong and unlawful as it confuses two different things.  How a decision is reached and its effective date is two different matters.

I took 6 months deciding to ask my fiancée to marry me which is a decision taken before the date I proposed. (The fact her father had a shotgun pointing at my head probably was unlawful reader!)

Yes HBR does allow for a future decision to be made but it cannot be decided based on future rules unless of course my home city of Liverpool saw its HBO’s decide all 11,680 bedroom tax cases on 1 April 2013 – a day when they were not even in work as it was a bank holiday and would mean 2.28 seconds per decision!  I would also refer the tenant to paragraph 15 of the A4/2012 guidance which contains a diagrammatic table that shows the decision is taken before 1 April 2013 and then notified after this date.

I also maintain that simply accepting the word of the social landlord is unlawful.  The social landlord just like the private landlord has a vested interest and conflict of interest in saying a property has 3 bedrooms rather than 2.  That is one obvious reason. An obvious second reason is that if the landlord was a private one then the HBO would have, automatically, referred the matter to the independent Rent Officer service and the HBO cannot discriminate in this way.  Yet an even bigger third reason is that how can the social landlord’s word or view be definitive if the social landlord is under no obligation whatsoever to provide any information at all?

A perhaps less obvious fourth reason is the entirely arbitrary nature of the decision-making process.  In the absence of official or formal policy of a council, which none of them have on this, the HBO is free to make up his or her own mind on what to do.  That is not acceptable and allows a huge amount of subjectivity into the decision-making process.

A fifth reason is the cloak and dagger behind closed doors nature of the decision-making which is aided and abetted by the very highly prescribed A4/2012 guidance.  Only contact the tenant if you absolutely need to is what it says at paragraphs 17

“…easiest and most cost effective way to gather the require information on the number of bedrooms in a property will be to work with the registered landlords….rather than writing directly to tenants”

and the same at paragraph 20..

“In SOME circumstances it MAY BE NECESSARY to contact a claimant directly for information about the number of bedrooms in their property.”

The decision-making process that is heavily prescribed in the A4/2012 guidance is all about the cost of making the decision and not getting the decision correctly decided.

A sixth reason is in the absence of any legal definition of a ‘bedroom’ then how in earth is the HBO expected to reach a decision that would tax the most learned legal minds?  That is fundamentally irrational as it asks the HBO to be a legal expert.  Add to this the change in regulations on 13 March 2013 and now we see the HBO being asked to decide whether a child is severely disabled enough to warrant a bedroom of their own.  This is the HBO as a medical expert.

I will summarise here as that last point perfectly states the reality of the decision-making process for the poor HBO.  The HBO is being asked to make decision way above his or her pay grade and is expected to be a legal and a medical expert on top of being a HB expert.  That really is some skill set and if I was a HBO I would be lobbying for a reclassification of my pay grade to see my employment skills being paid the same as a judge and a doctor!  The HBO does make judgement calls as part of their role, as most jobs do, yet the bedroom tax decision-making process is fundamentally irrational as it places irrational demands and expectations on the HBO in the context that the average £14pw cut places the claimant, the social tenant, in a position where this equates to 20% or more of their £71pw minimum subsistence level benefit income.

The bedroom tax is policy and the HBO has to make the decision.  Yet despite this being an irrational decision-making process and an irrational policy the HBO still has to make the correct decision  So when they fudge that with a decision-making process that is geared towards the cost of the decision and not producing the correct decision then all those decisions are irrational and unlawful.  They all need to be done again and properly.

I keep six honest serving men they taught me all I knew.  Their names were What and Why and When and Where and How and Who

Think of that when making your appeals on the decision-making process elements of the bedroom tax appeal


10 thoughts on “Kipling makes exceedingly good bedroom tax appeals

  1. Joe between you an the GLC, and the campaign groups,we can all beat this bedroom tax, thank you once again joe for all of your advice.

    clip of our protest outside an inside WPH

  2. You make mentions of the private tenancy, where the HBO would “automatically refer to the independent Rent Officer”, yet since the introduction of Local Housing Allowance, the HBO would do no such thing. They simply calculate the number of bedrooms required by the claimant’s household under the legislation & pay up to that LHA rate. All the Rent Officer does now is assess oddities and collate statistics on what the 30th percentile is for the LHA rate to be set.

    (In fact, even pre-LHA, the Rent Officer rarely did visit a property and assess the number of rooms, they took the word of the claimant – and HBO in the referral – as to how many bedrooms there were, and undertook a desktop assessment based on the figures they found in the local paper & online)

  3. Of more than 5 million HB claimants, approx 1 million of which are LA/RSL cases, 219,000 cases referred to the Rent Officer for a determination represents 5% of the total private sector. A minority since the introduction of LHA. Agreed there are probably single figures of RSL cases, these are either pre 2008 claims or oddities like tents. I wasn’t disagreeing with you, just saying that in most cases it’s been trusting the claimant’s definition for a long time.

    1. There are 3.4m LA/RSL HB claimants not 1m and exactly 3,391.410 according to tab 4 of the latest official DWP figures. There are 1.655m PRS cases in receipt of HB/LHA. The NLA say average PRS tenant stays 3 years. So 219k x 3 is 657k out of 1.6m is a lot more than 5% in fact its about 40%. The RSL cases to rent officer even if 100 which I doubt is that high is a mere 0.005% of the 1.94m RSL HB claimants.

      The bedroom tax also is not a case of “trusting the claimant’s definition” as the claimant the tenant has not been asked rather the social landlord has been asked

  4. Your figures are wrong.

    219k of 1.655 million is 13.27%. How can you possibly times the figure by three?

    The overwhelming majority of private rented claims are Local Housing Allowance claims and don’t get referred to the rent officer.

    The 219,000 claims that get referred to the Rent Officer are claims which started before 7 April 2008, Bed & Breakfast claims, Gypsy and Traveller pitches, site rents/ground rents (where people are paying a site fee for a mobile home they own) and mooring charges. Each claim would be referred every 52 weeks.

    One question – If the tenancy says 3 bedrooms, the tenant has stated 3 bedrooms on their benefit application form, the landlord is charging rent for a 3 bedroom property – and the original planning application for the property states it was a 3 bedroom property (local authorities have access to the planning applications) how can anyone argue the property is just 2 bedrooms?

    1. The figures are not wrong and are not the issue in any case.

      The fact that HB regs say a case needed to be referred but wasnt means the HBO has not done what he should have done The fact that this applies to RSL and PRS tenants but not to council tenants discriminates against the council tenant who cannot get an independent determination The quality of the independent determination from the RO is neither here nor there

      A property is not the same as the number of bedrooms it has (see Janet bell case for example)

  5. Since the introduction of Local Housing Allowance in 2008 new Housing Benefit claims for private rented claimants haven’t been referred to Rent Officers. It doesn’t matter if the landlord says the property is 1 2 3 or 4 bedrooms as the LHA is based on the claimant and their family size not on the size of their property.

    A couple with a child in a 1 bedroom property would be paid upto the LHA rate for a 2 bed property depending on what rent was being charged.

    If that couple moved into a 3 bedroom property they would still have their claim based on the LHA rate for a 2 bedroom property.

    If the landlord claimed the property had 43 bedroom and the rent was £10,000 then the LHA rate would still be the LHA rate for a 2 bedroom property.

    The Rent Officer is no longer involved in deciding individual LHA rates for claims made after 7th April 2008. The Housing Benefit Office make these decisions based on the yearly LHA rates for the area the claim is made in.

    Bedroom Tax claims don’t need to be referred to the Rent Officer as the Government conveniently changed the legislation from 1st April 2013. Local Authorities are protected by claims they should use legislation extant at the time of advance benefit notifications by numerous other regulations where for example a letter dated 10th March 2013 regarding a decision that starts on 1st April 2013 can only be challenged on the legislation from 1st April 2013 and not legislation extant prior to that date. There is probably a whole stack of rules and guidance notes that will clarify this and no doubt previous case law.

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