We all know the analogy of a child telling a little white lie and then an even bigger one and then still bigger ones to cover up the original lie. That reminds me of what Councils have done with the bedroom tax decisions.
Paragraph 12 of the A4/2012 guidance which all Councils quote back at tenant claimants says the government WILL NOT Be defining a bedroom in legislation which Councils conveniently took to mean there is no definition of what a bedroom is or even what a bedroom cannot be to mean a bedroom does not need to be or is defined in law. Yet all paragraph 12 says is that the government won’t be making a FUTURE piece of legislation saying what a bedroom is – that is what WILL NOT BE means…and in everyday English too. That is the original Council little white lie they told themselves and they tell to the tenant claimant of HB.
The law does hold plenty of definition of what CANNOT constitute a bedroom, which amounts to the same thing, and Councils very conveniently indeed have chosen to ignore when making the bedroom tax decisions. This is much more than the 1985 Housing Act and bedroom size as I outline below.
Then the second part of paragraph 12 says, correctly, there is no definition of a minimum bedroom size in REGULATIONS. Yet here Councils told another little white lie to themselves and to tenants as they interpreted this to mean that HB decision makers only have to ‘look at fact and not law’ and many Councils have said precisely that in their responses!! How strange that the law is somehow not fact then? So what is the law? Non-fact? Lie? Whatever it is Councils have disregarded it and of course they cannot do this despite protestations at this is not correct statutory interpretation.
Councils have trotted this line of argument out about the 1985 Housing Act saying that bedroom size does not matter. They have also conveniently missed the fact that they themselves – Councils as a corporate body and note well Councils act as the agent for the DWP in HB decisions and as a CORPORATE BODY– have powers to prosecute landlords for renting out rooms which are too small and have done so recently here.
So Councils must KNOW that the size of rooms matter and all the bleatings and white lie upon white lie that Council HB departments state about the law and they do not have to regard the law and only fact (whatever the hell that means) is of course nonsense and a legal fiction too.
They also conveniently overlook that Councils as a corporate body still retain the legal duties for homelessness and cannot transfer them and that Councils have to conform to homelessness legislation and to guidance issued by the HSE – both of these are interestingly contained here in an Ombudsman report from last October in which the Ombudsman expresses surprise that Councils do not know rooms sizes and other factors are pertinent and apply the laws. The ombudsman found maladministration against York Council regarding bedroom sizes and the more general ‘sleeping accommodation’ aka a bedroom in this case. A pertinent paragraph is: –
A room is available for sleeping accommodation if it is normally used as a bedroom or as a living room. Since October 1998 guidance from the Health and Safety Executive states that a room cannot be used as sleeping accommodation if it contains a gas fire, gas space heater or a gas water heater including a gas boiler.
That direct quote is very interesting as many Councils as well as saying there is no legal definition of a bedroom – which is in fact inaccurate – and have been saying a bedroom has its ordinary meaning – that of somewhere where one sleeps. So you would have thought that Councils would have asked of landlords or indeed of tenants whether any of the alleged ‘bedrooms’ and even living rooms contained a gas water heater or gas boiler. Yet of course they did not. Councils merely winged the bedroom tax decisions and didn’t ask the necessary questions of either the landlord or the tenant to determine the number of bedrooms each property has – the ease of administrative cost approach.
Of course some will say this means a living room can be deemed a bedroom and a tenant may in fact have MORE bedrooms and not less bedrooms in their property. Correct – Yet that merely proves the point that Councils took an ease of administrative cost approach and didn’t do what they needed to do – decide on the the number of bedrooms correctly. Both ways prove the Councils decision-making processes were and are a farce and legally unreliable.
All bedroom tax decisions that did not ask the relevant questions were made on assumption and a lack of genuine information and ignorance of the law – be that whether it is the size of a purported bedroom or whether it contains a gas water heater or boiler.
Ignorantia juris non excusat
What Councils have done in making the bedroom tax decisions is ease of administrative cost. They have chosen to believe the landlords opinion of what a bedroom is and how many bedrooms a property has. Councils have not, as they should have done verified that landlord data the received to be correct or not as it would have cost them too much to do so. They also did not ask for the necessary information from landlord or tenant such as gas fires and gas boilers upon which to make the correct and legally reliable decisions.
In short they do not KNOW that any given property has the number of bedrooms as the landlord says, they have merely assumed this to be correct – though of course Councils as the decision makers have DECIDED to take the landlords word despite the landlord’s obvious and apparent vested interest. It is not up to the landlords to decide as many Councils have stated – that is yet another white lie to compound this farce and the farcical and legally unreliable positions Councils are adopting to cover their tracks and incompetence.
Yes the child telling white lie after white lie really is a good analogy reader!
Even when they trot out the secondary white lies that a bedroom has its ordinary meaning not a legal one they fail to take account – as a corporate body – of what the HSE stated 15 years ago with regard to what sleeping accommodation cannot be. Just as the 1985 Act states what a bedroom cannot be, the HSE guidance states what a bedroom cannot be defined as – Yet Councils overlooked this.
So whether it is The 1985 Housing Act on overcrowding or the HMO guidance or the HSE guidance or The Homelessness (Suitability of Accommodation) (England) Order 2012 all Councils have been legally remiss in making the bedroom tax decisions as all of these give duties to all Councils on a corporate basis and cannot be ignored by the HB departments in each Council. They would be incredibly strange statute and guidance if they exempted HB departments but applied to all other Council departments wouldn’t they!
Councils and especially Housing Benefit departments invariably rise to a high level of incompetence when making decisions – and the vast majority of HB error and far higher than fraud is made by Councils in HB decisions – yet in the case of the bedroom tax they have surpassed that.
All bedroom tax decisions are legally unreliable because of this and what we are now seeing is Councils knowing this and secondly refusing to answer reasonable questions asked of them by tenants. The standard 6 questions I drafted included two which asked what did the Councils ask the landlords for and what did the landlords respond with.
The appellant needs to know whether the Councils asked about room size or room usage or whether rooms contained gas fires of boilers in order to challenge, yet Councils will not give up this information as presumably they know they have cocked up by not asking and would incriminate themselves. Yet such requests from claimants, the tenants and appellants are perfectly reasonable ones to ask. Council HB officers are now spitting out their proverbial dummy as the temerity of tenants asking for this reasonable information as a letter from Liverpool City Council below illustrates –
“All relevant information required has been issued. The Local Authority are not required to provide additional information for you to appeal and all relevant information has been provided.”
All RELEVANT information has been issued? I didn’t realise that HB officers are now legal advisors to the tenant claimants and can decide what is relevant or not to their appeal!!! And as these reasonable requests were for more information on and explanation of how the Council made the decisions and not an appeal, has the Council engaged Mystic Meg to advise Senior HB Officers on what grounds the claimants are going to appeal upon!!
This is the same Liverpool City Council who claimed these two reasonable questions were FOI requests as part of its dirty tricks campaign – which they apologised for here, and in person at a meeting I had with them a few weeks back and stated would change – yet still have not and now WILL not provide. Oh dear!
Have a look at the tone of this LCC letter below as well – Yes it is very curt and dismissive isn’t it – and make sure you don’t miss how they have entitled this letter internally too. Look at the bottom right-hand corner and you will see the words “HB Dispute Unsuccessful!” – Indeed!! Anyone think that the senior benefits officer didn’t realise this would print out on the tenants copy? Ahem!