Bedroom Tax appeal – Why the CIH is so wrong in fact

In a thinly-veiled attack on myself and others the CIH gave their view on why all tenants appealing the bedroom tax is wrong.  It was rather silly of them as I discuss below.  They seem to use the word FACT in the same way the coalition use FAIR or AFFORDABLE

I wonder why CIH don’t want tenants to appeal reader?  Hmmm!

Note: This reply is easier to read in the pdf version on my website which is here

Enough digression please read on.


Late yesterday Gavin Smart the Director of Policy and Practice at the CIH published an article in Inside Housing.  It began:

Our comments last week cautioning that mass appeals against bedroom tax decisions might not have the desired effect have provoked a lot of debate and a number of requests for the Chartered Institute of Housing to clarify where it’s coming from. A number of people and groups who are united in their opposition to the cuts have come to different conclusions about how best to demonstrate their opposition. Here is how CIH reached the position reflected in media coverage last week.”

The article doesn’t mention me or the Govan Law Centre – who issued a news release about the CIH expressed earlier view here – and many others who have advocated that all tenants should appeal and in general the article is generally courteous and professionally put together.  Here I respond and explain why the CIH position is wrong and misguided.

As soon as this was released about 5pm I received many tweets asking for my response though Gavin cleverly did not mention me or others there was an implicit attack on my judgement, professionally and personally in this CIH view.  I have no truck with Gavin or the CIH per se I simply maintain and have stated they and other housing bodies including social landlords have very feebly challenged the bedroom tax and other welfare reforms – views I strongly stick to and have explained previously.

The article is mostly without self-promotion and hyperbole although the CIH do claim

“…we provide housing professionals with the advice, support and knowledge they need to be BRILLIANT!”

The article carries on outlining the CIH’s role toward the housing professional yet of course it is not the housing professional than is hit by the bedroom tax it is the tenant and so the CIH provides ‘brilliant’ support and advice to the housing professional and landlord and not to the tenant.

Yet advocating all tenants appeal as I advocate shows the audience are too different ones and the bedroom tax means different things for those two audiences.  The CIH do not target a tenant audience and frankly the tenant does not read the CIH view – that said it is interesting of itself that the CIH thought it needed to state its view on the bedroom tax, something it hasn’t done for other issues or as a matter of course. Make of that what you will!

The article goes on with a preamble which in part deserves comment and response but concludes with 5 ‘key’ points in the CIH view.  I discuss each one of these in detail below.

On welfare reform we’ve always been clear that the cuts are wrong and will have unpleasant consequences. We’ve been very public in our criticism and for the last two years our data and analysis has informed media coverage of the issues, parliamentary debates and committee inquiries.

Unpleasant? Dear me is that the best way to describe the lot of the tenant the CIH’s client’s customer?  Very public in our criticism?  Quite the opposite in my view and I have consistently said this over the past two years.  Though yes CIH data has been used extensively as I have in fact used it too.

The article goes on to reaffirm that CIH has been advising its members yet its members are not tenants!  It then starts to get into its detailed view which it does by reducing many detailed arguments I and others have provided to a level of ridicule which is frankly offensive to ALL those that have suggested appealing the bedroom tax.

We’ve heard the idea that if everyone appeals against their bedroom tax reductions then housing benefit admin will grind to a halt and everyone will escape its consequences.  We’ve also heard people say that because ‘bedroom’ is not defined in the legislation the local authority will not be able to defend any cases. In response we’ve said that we don’t agree this will work, and because of this we think it gives people false hope. Clearly everyone can and should appeal if they wish to do so, and we have never said otherwise. We have said that few cases are likely to benefit, but we have not said appeals are invalid.

 Oh dear like that is it! I see!

Then comes the 5 purported key points which they pompously say are FACTS and they are not facts but mere opinions.


We’ve come to this view based on our knowledge of the facts:

1. What is a bedroom is not defined, but there are lots of things in the housing benefit regulations that are undefined. For example there is no definition of what is ‘income’ but this does not cause administrators any problems whatsoever – the scheme has functioned perfectly well for 30 years without it. If a term is undefined then the authority simply applies the long established principles of statutory interpretation (words have their ordinary everyday meaning).

One of the earliest professional opinions on the subject of “What is a bedroom” came from Jonathan Mitchell QC and of course while his is merely one view and barristers often disagree which is healthy, his expert legal view on this said no such thing.  There is strongly implied criticism in my approach in advocating all appeal that in some part is based on my reading an expert legal view of it (and not just one expert legal view.)  Whereas the CIH and other “housing bodies” have stated their opinions on such matters which have no doubt come from legal opinion they have received YET no one housing body or housing actor has been prepared to release that legal opinion to substantiate their view.  If I am misguided in believing an expert legal view when I should believe the view of a landlord then so be it.  When the landlord or the housing body that represents them has a conflict of interest so apparent as they have with the bedroom tax as well, any inference that I am misguided needs to be seen in that correct context.

Or put in simplest terms as DWP provided 48 pages of highly prescriptive guidance on HOW to make the bedroom tax decision ask yourself why they didn’t simply say a bedroom has its ordinary meaning?

2.   The legislation on overcrowding defines what a bedroom is for the purposes of working out who is overcrowded. But definitions in one piece of legislation cannot be used in another (this is a well established rule of statutory interpretation), so this definition is not relevant to the housing benefit size criteria.

See point 1 above and note a QC says it can apply or at worst may apply.  For anybody let alone a housing body to be so definitive as to say “it is not relevant” is frankly staggering in its level of conceit.  Nobody can prejudge what a court will decide not even a QC, all they can have is a view or opinion.  To say with such certainty that it does NOT apply smacks more of the housing sectors fears and hopes than of expert legal opinion which of course it cannot be.

3.   The term bedroom has been undefined to give authorities wide discretion. This is helpful for landlords and benefit administrators, but the downside is that it will make it very difficult for challenges to be successful. As long as the authority’s decision for deciding that a particular room is a bedroom is reasonable, judges will not overturn it. Reasonable here only means nominally reasonable (i.e. not wholly irrational), it does not have to be the most reasonable judgement they could come to. So if the authority decides to use the landlord’s data then that will be accepted in almost all cases.

The wide discretion is the problem and I refute the view that this has been left undefined to give wide discretion. It has been left undefined as if it was defined it would apply to every owner occupier who may suddenly find the 3 bedroom property they bought is now worth less as it is post definition no more than a 2 bed and a boxroom.  The entire economy crashes and billions are wiped off the principal asset of the electorate.  The wide discretion and deliberate absence of a definition is for that reason more than anything.

Yet the wide discretion into how to make the bedroom tax decision involves two key questions for the HB officer – what is a bedroom and how many bedrooms does a tenant have – without coming to a decision on those two questions the bedroom tax cannot apply.

Is it right that a HB officer is tasked with taking a decision that would see the most learned legal minds in the country have difficulty with?  No it is fundamentally and wholly irrational.  That undermines the many process challenges I have raised as legitimate grounds of appeal for all tenants.  And those same grounds are in the context of the average £14 per week cut to a tenant with a welfare benefit income being as low as £71.70 per week.  A truly life-changing decision carried out by a non-expert in a behind closed doors desktop exercise!

Now after the 13 March 2013 changes the same HB officer is asked to be a medical expert too as they endeavour to decide whether a child is severely disabled enough.  What a skill set this below national average wage worker has!!

4.   Appeals are unlikely to clog up the system because a decision of the authority stands (even if it is wrong) until it is overturned. So it does not cause problems in the system at all.

It will see below at 5 for detail.

5. If cases do go to appeal the judge can decide to group them together if they look similar, and this is likely to happen if people use a standard letter. Again this means that administration is very unlikely to grind to a halt, but it might mean that the time taken to reach a decision about the appeal is greatly slowed down: and justice delayed is justice denied.

Here is where the CIH view is a mixture of incompetence and deliberate politicking and deflection.

I have never advocated a standard APPEAL letter. I drafted a standard letter, two in fact, which both asked for more information on HOW the council decided to apply the bedroom tax.  A template letter is perfectly ok for seeking such information as it is the information the tenant needs to know to be able to formulate a later appeal based on fact and not assumption.

NB I have consistently said I will not draft a standard appeal letter or form – something which the CIH imply here and something that shows they are making up claims to suit their argument rather than giving their view on what I and others have actually advocated and written.

All APPEALS will look the same – Yes and simply because they go on a form that looks the same!

However where the ignorance of the CIH view really comes in is the statement that “the judge can decide to group them together.”  This is in fact wholly false.  An appeal over benefits to the tribunal is covered accessibly and quite extensively in the “How to Appeal” brochure published and available here. It states that the appellant (the tenant) can choose whether to appear in person or have a ‘paper’ hearing.

If all tenants tick the paper hearing box then yes they may well be grouped together.  Yet if the tenant wants to exercise their right to an ‘in person’ hearing then the judge and tribunal cannot do this.  A simple perusal of the modus operandi of the tribunals reveals this difference which means that appeals will clog up the judicial system and does mean that each council will have to have a ‘presenting officer’ in each individual case.

Interestingly if the judge denies an ‘in person’ hearing would that give the tenant legal cause to go to the Upper Tribunal?  I suggest that it would!

Overleaf is what the Tribunal say on page 14 of How To Appeal:

b Do you want a hearing?

At a hearing, you and your representative, if you have one, meet the Tribunal to present your case in person. The department or council have the right to attend and put their case. This is sometimes called having ‘an oral hearing’. The alternative is having your case decided by the Tribunal without a hearing. Neither side attends. The Tribunal comes to its decision on the basis of what is in the appeal papers. This is sometimes called having ‘a paper hearing’, though it is not strictly speaking a hearing.

A hearing will only be arranged if:

you ask for a hearing, or

• the other side in your appeal asks for a hearing, or

• the Tribunal itself decides that a hearing would be more appropriate than deciding the case on the papers.

Should you ask for a hearing? The advantage of a hearing is that you have an opportunity to present your case in person to the Tribunal, and the Tribunal has the opportunity to learn more about your case than it could gather from the papers alone. Statistically, more than twice as many appeals are successful at a hearing than being decided on the papers.

Hence this reveals a number of issues of real FACT CIH! Such as the appellant has a right to an oral hearing.

However it reveals one thing I will say in the simplest possible terms.  I know what I am talking about and you do not so thank you for your BRILLIANT advice!

What was that you said earlier?  Yes you were concerned about giving the tenant false hope of success?  You care to reconsider your view CIH?

Or is BRILLIANT advice derived from simply taking the general view of court administration in hearing cases together and not realising the Tribunal has a different modus operandi that you could not be bothered to research?

A general point is made about giving a tenant false hope and the term I use is setting them up to fail.  This is something I have given huge consideration to and constantly question myself on.  Any implication that I haven’t is wrong and frankly angers me greatly as it is not just an attack on my professionalism and thoroughness which as revealed above shows that the CIH view over judges grouping case together is a case of a little knowledge is a dangerous thing, it angers the hell out of me personally.

Anyone who knows me and my work – personally and professionally if you will – also knows why this angers the hell out of me.  Yet the CIH and other ‘housing bodies’ who have their own agenda and conflicts of interest especially if a tenant appeals over bedroom size issues, are keen to portray my ‘advice’ as ill-informed, unprofessional and ill-though through or even imply there is another agenda.  They could not be more wrong.

Ask yourself a simple question – If you were a tenant with a right to appeal with the (time-limited) opportunity to have your say over this hated bedroom tax, would you (a) do that  or (b) not and then regret it evermore?

Ask another one.  Who would any rational person believe on a legal issue – the landlord or housing body or a QC?

For MY record there is quite a number of arguments I disagree on in the Jonathan Mitchell QC opinion and I state that merely to say I don’t slavishly adhere to all it says.

I have spoken with huge numbers of tenants and I cannot articulate the stress they feel over the bedroom tax.  Even without it many are in a ‘eat of heat’ situation and with it an even worse financial situation and that is without having to pay council tax for the first time, with already low welfare benefit levels increasing by a mere 1% when gas and food prices are four or even ten time higher weekly cost for them.  They opportunity to have their say is a huge stress release and they WANT to appeal and WANT to have their say – Yet this is a concept alien to an organisation and remit is to the housing professional and landlord who have their own huge concerns such as survival as the bedroom tax is a £500m financial risk transferred from central government to social landlords – it is in simple terms an attack on social housing and the social housing model.

Not only that the CIH and everyone else involved in housing knows there are bigger attacks and bigger risks to come with direct payments and especially the overall benefit cap (yes go and read that 44% of those affected are social tenants and the OBC is NOT an issue just for high cost London PRS rents!)

How strange I have never seen the CIH lobby or stick their heads above the parapet on that one? Even if it is just 44% of the low original DWP estimate of 56,000 households that is still 25,000 OBC social tenants who will be evicted and a far higher number than there will be over bedroom tax evictions.  I maintain it will be much higher and have detailed the fundamental flaw and the systemic flaw in the overall benefit cap which has not been shown to be false or indeed challenged by housing bodies.  The OBC IS the proverbial hitting the fan for social landlords

One final argument which until now I have only briefly raised and even then with a sense of trepidation is that while a bedroom tax appeal is ongoing – and the tribunal say each decision takes between 3 – 8 months based on current workloads – the social landlord will have huge difficulty in taking possession cases as the arrears figures are under the auspices of another court, the tribunal, which will lead to huge delay and more arrears as the district judges at the county courts have little option but to adjourn possession cases if a bedroom tax element is apparent.

What upsets me over even making these arguments is the perceived indifferent and apathetic light the CIH and other housing bodies gives to the tenant of the social landlord.  Often in the past the landlord has stood four-square behind tenant problems with welfare or housing changes, yet in the bedroom tax they appear complicit and indifferent to the lot of the tenant.  I know this is NOT a true reflection of housing professionals or social landlords even in a corporate sense and all housing professionals are angered over the bedroom tax and privately all admit that.  Yet as I have consistently said I answer to no one but myself and don’t have to toe a corporate line and I’m very thankful for that.

In my blogging alter ego I would say this perceived indifference, apathy and complicity is going to come back and bite landlord and housing ‘bodies’ on the arse and fiercely when direct payment comes in.  The social landlord has had control over rent payments with HB going direct to them and I fully hold with the social landlord argument and indeed research which revels 90% of tenants still want that arrangement to continue.

What the social landlord doesn’t get for me – as they have never had to consider it before – is risk to reputation.  With HB direct to landlords they could be aloof to tenant issues and of course cover that in clever top-show marketing terms.

Yet when direct payments come online the tenant can and will vote with their wallet and purse and the landlord-tenant dichotomy forever changes.

Allowing the social tenant to think and perceive the landlord is complicit in the bedroom tax – and remember paragraph 20 of the A4/2012 guidance which begins “There is no obligation on landlords to reply to a request for information” – is a huge mistake social landlords have made.

The constant repetitive views of the CIH and landlords on stating tenants should not appeal the bedroom tax allows that perception to grow and foster, where before the landlord has stood four-square behind the tenant – who it likes to call a customer.

Yet social landlords in the main, with some honourable exceptions, have disregarded tenants understandable concerns by focusing exclusively on their own understandable concerns and financial risk.  Throw in offensive disclaimer letters and landlords asking for bedroom tax shortfalls in snotty letters even before many tenants have even received the bedroom tax decision notice, is shooting themselves in both feet.

The social landlord in placing finance, finance, finance ahead of tenant concerns have been incredibly stupid and naive – they have sent out a strong message to all tenants that we like to call you customers we just don’t have a bloody clue how to treat you like one and frankly we don’t care either! Gerald Ratner eat your heart out!

Justice delayed is justice denied you say?  Nice twee phrase but try telling that to the tenants of my home city who are used to waiting 24 years and more as we still haven’t had any justice applied.  In fact tell that to the 43% of working-age tenants in the North West affected by the bedroom tax while London has just 22% or half that figure.

Surely it wouldn’t be that CIH who always have adopted a London-centric approach to housing advice and housing issues are simply not in touch with the reality of UK housing issues by any chance would it? Or is it that as it only has half the impact in London that you can’t be bothered or don’t realise that the housing world does not stop at Watford Gap!

For the record do you honestly believe that the tenant give a damn what the CIH view is? All the social tenant, the purported customer of your housing landlord clients sees the CIH as an irrelevance (as do many of your members privately).

The CIH view is a timewarped one that still believes social housing is about bricks and mortar when the Welfare Reform Bill of which the bedroom tax is one small part made social housing about people.

It’s time the CIH kept up with that reality as they will go the way of a number of social landlords if they maintain that naive mentality that social housing post welfare reform is about bricks and mortar and take no account of the fact that with the welfare reforms the tenant becomes a true customer and not just a mere tenant.

4 thoughts on “Bedroom Tax appeal – Why the CIH is so wrong in fact

  1. I don’t see Housing Benefit Officers as the enemy – they are just the poor sods left to try and work with this ill conceived, mean spirited and rushed piece of legislation. The Governments u-turn on foster carers, disabled children and parents of service men and women threw a last minute spanner in the works.

    You have hit the nail on the head about Council Officers, with no medical training, having to determine what is a severely disabled child.

    An appeal with a written statement from a parent would in all probability be rejected unless backed up by detailed medical evidence. Most parents with disabled children are being charged for medical evidence. Those on the breadline can’t afford £25 (or whatever their Doctor charges) to supply evidence.

    When is a disabled child a severally disabled child? For instance is a child with Asthma who may have regular attacks classed as severally disabled thus needing their own room? If a child has ADHD or Autism and regularly wakes during the night are they classed as severally disabled or just having behavioural problems?.

    How an earth can the poor sods administering this nightmare make an informed decision with no training on what is or what is not a severe disability and poor and inadequate guidance from the DWP?

    I can see claims being rejected and then moved onto the Tribunal Service for a decision causing yet more anguish to parents already under severe stress and financial hardship.

    One thing that should definitely be changed is partners who need two separate bedrooms because of severe health or disability issues.

    Although if they scrapped this shoddy piece of legislation and instead offered incentives to downsize and built more adequate social housing then we wouldn’t have this problem.

    1. Couldn’t agree more. HBOs placed in an invidious position and one they should never have been placed in at all. I have said so repeatedly and will continue to do so. I have no quarrel with them at all

  2. Joe can I ask your opinion about section 332 of the housing act 1985…. from what I have read about rent books (landlords and tenancy act 1985) and the above section of the housing act, are not most if not all landlords breaking the law? and because section 332 deals with overcrowding it should state on your rent book that a room below 50 sq ft cannot be used as a bedroom and a room below 70 sq ft can only be used for 1/2 a person (or a child under 10) ……

  3. Thinking more about the room standard for overcrowding and the governments position with regards to the bedroom tax (they are doing it to create properties for those that are overcrowded) then the government have tied their hands together and slit their own throats, they cannot change the rules on overcrowding because that would show the real reason behind the bedroom tax.

    Now given that section 332 states;

    Information to be contained in rent book.

    (1)Every rent book or similar document used in relation to a dwelling by or on behalf of the landlord shall contain—
    (a)a summary in the prescribed form of the preceding provisions of this Part, and
    (b)a statement of the permitted number of persons in relation to the dwelling.

    Then apart from breaking the law by not providing a rent book , the rent book should contain reference to the space standard and how it’s worked out ( 332(1)(a) ) and the permitted number of persons allowed in the dwelling.

    Both the housing act 1985 and now the new legislation in the Housing Benefit legislation 2012 will have to be taken into account when working out the permitted number of people in relation to a dwelling in order for both legislation’s to work in harmony…..

Please leave a Reply

Please log in using one of these methods to post your comment: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s