Welwyn Hatfield Council has ruled that a room of less than 50 square feet is NOT a bedroom for bedroom tax purposes. This is hugely significant and here I explore why and some of the significant factors.
I reported this would happen in early June 2013 and in July the council did this and yesterday the minutes of this decision were released. This is all contained here.
Let’s start with the council minutes of the Cabinet – the executive meeting of the full council – meeting of 9 July:
The Panel had received a report providing monitoring information on the performance of the Welwyn Hatfield Community Housing Trust which also detailed measures taken by the Trust to reduce the possible negative impacts of the recent Government welfare reform (Minute 7). The Panel recommended that Council homes with one bedroom which was less than 50 square feet (4.65 square metres) be reclassified so that a room of this size or smaller was not classed as a bedroom for welfare reform purposes.
That the Panel’s recommendation be approved and Council homes with one bedroom which was less than 50 square feet (4.65 square metres) be reclassified so that a room of this size or smaller was not classed as a bedroom under the Government’s welfare reform.
Here we have a council deciding that any room less than 50 square feet in floor size is not to be deemed a bedroom for the purposes of the spare room subsidy / social sector size criteria / under-occupation charge, the policy commonly known as the bedroom tax.
The decision to impose the bedroom tax deduction is a decision WHOLLY for the council as it is a Housing Benefit decision and local councils act as the agent of central government in administering Housing Benefit. That is a key fact and many mistakenly believe the decision of what a bedroom is or how many bedrooms a property has is for the landlord to determine. For the purposes of the bedroom tax imposition that decision lies 100% with the local council and is nothing at all to do with the landlord.
Welwyn Hatfield is also a landlord, albeit at arm’s length, yet this does NOT mean we have a landlord reclassifying properties in this case. Here we have a full meeting of the cabinet telling the councils HB department that any room under 50 square feet is not to be deemed a bedroom for bedroom tax purposes. While they say this specifically for (arms length) council properties this must apply for all social housing in Welwyn Hatfield as a council cannot determine a housing benefit decision (the bedroom tax) differently for a council property to any other social housing property of a housing association. To do so would be unlawful.
So ALL social housing properties in Welwyn Hatfield with a room less than 50 square feet must be treated as non bedrooms for the council’s bedroom tax decisions.
On a national scale we have seen local councils – the ONLY bedroom tax decision makers – saying that bedroom size is not something they have to consider when making the bedroom tax decision.
A whole host of reasons have been given for this by various councils but usually all around statutory interpretation. We do not need to consider the law and only HB regulations they have said. The 1985 Housing Act on over occupying which contains the law that a room under 50 square feet CANNOT be a bedroom we do not have to consider has been a consistent line. My view has been consistently that this is a ‘dodgy’ excuse. How can room size matter in law for a property which is over occupied but not for one deemed to be under occupied in very simple terms? Councils want to have their cake and eat it and also appear to be saying we do not have to consider existing law which they claim ONLY applies to overcrowding (the statutory interpretation defence.)
Yet now that one council has ruled that room size does matter then it means all other councils need to consider this. Or, if one council can do it why can’t all the rest of them? The answer is they can and should!
This means all social tenants with a room less than 50 square feet in floor size have a challenge to their original bedroom tax decisions on size. They can and should ask their own local council to review their decision and if the council does not change its decision to then launch a formal appeal against that decision. While any such formal appeal may be deemed ‘out of time’ by the lower tribunal these appeals do have substantive merit and should be heard by the tribunals. If the tribunals decide not to hear then it may be possible to appeal the decision not to hear but I will leave that one to the legal experts.
The 1985 Housing Act where it says a room of less than 50 square feet cannot be a bedroom also says that a room of less than 70 square feet in floor size is not a full bedroom, it is in effect half a bedroom, and for the purposes of argument here we can call this a 0.9 bedroom. Yet now that we see one council opening up the ‘bedroom size’ issue it also opens up the size issue to the less than 70 square feet room being deemed a bedroom or not.
The HB regulations for deciding the bedroom tax deduction say if a tenant under occupies by 1 bedroom then a 14% deduction is made. So half a bedroom or 0.5 of a bedroom or 0.9 of a bedroom is less than 1 bedroom and so the bedroom tax deduction should not apply is the argument. Now that one council has opened the door to the size of a room for bedroom tax decisions there is a mass of stampeding wild horses bolting – the floodgates have opened and any other cliché or analogy is apt and demonstrates the huge significance of this Welwyn Hatfield Council decision.
Councils will recoil in horror at this decision as it means a cost factor for them of how do they KNOW the size of a room which purportedly is a bedroom. Councils will have to find an acceptable mechanism for room size measurement and I hear Bristol City Council have already sent out surveyors to do precisely that. A huge potential cost and one which to date councils have avoided.
Yet what has always been my point with the bedroom tax decision making process. A council must KNOW what a room size is and not merely accept the word of the social landlord who said property X has 3 bedrooms. This is a benefit decision and all benefit decisions need to be based on fact and not on the word or opinion of a third party such as a landlord who has a vested interest in the matter. Yet we have seen councils – who I remind again are the SOLE decision makers – choosing to believe the landlords and largely because it would cost councils to make the decision properly by looking at room size. The entire bedroom tax decision making process has been one of the cheapest costs to get a good guess and not one of making the decision correctly as all benefit decisions need to be made.
Now the Welwyn Hatfield Council decision has made this cheapest administrative cost approach used by all local councils in determining the bedroom tax decisions look incredibly dodgy and legally fraught. It is not only the stable door or Pandora’s Box that has been opened; the can of worms has been exposed too!
To stay on the room size issue we have also seen social landlords and the NHF and CIH – the landlords umbrella groups – lobby hard and say the 1985 Housing Act does not apply and room size is not a bedroom tax issue. Well they would say that as they, mistakenly in my view, believe that if a property is deemed to have 2 and not 3 bedrooms then the rent must fall and they will lose out financially. I refer social landlords to the Leeds argument as to why I believe that rents do not have to reduce here yet that is not the main point.
The point is one of fact not one of landlords being worried. What is a bedroom and the number of bedrooms each property has are and should always have been a matter of FACT for the bedroom tax decision and not a matter of social landlords financial HOPE.
The social landlord and the local council HAVE been in cahoots in the bedroom tax decision making process and have done so because they share a mutual interest in it – the landlords have been scared that room size is an issue as it may hurt them financially and even expose they have been overcharging in the past and the councils CHOSE to take the landlords word on bedroom numbers because of the ease of administrative cost approach.
All 660,000 social tenant households or about 1.6m men women and children have been shafted by the complicity of landlords working in cahoots with local councils in the sham of the bedroom tax decision making process. The Welwyn Hatfield decision shows this is the case. Welwyn maintain that 100+ of its 800 bedroom tax affected (council) tenants – a staggering 12.5% – have rooms less than 50 square feet in size that have been determined to be bedrooms for bedroom tax purposes. TWELVE POINT FIVE PER CENT!! If that was replicated nationally that would by 82,500 households or 200,000 men women and children who have been given the wrong bedroom tax decision – and that is just for less than 50 square feet too!
At the average national weekly cost of £14 we see that social tenants have had their housing benefit wrongly reduced by £1.155m per week and as we are 19 weeks into the bedroom tax that is almost £22m that councils have wrongly deducted from some incredibly vulnerable people to date. It is £60m per year wrongly deducted and that I remind is for just the less than 50 square feet room.
- Local councils across the country have stated we have to impose the bedroom tax decision and said we can’t rule on room size. Welwyn show that they can and should
- Landlords – who had no compulsion to provide local councils with ANY information – have shafted their tenants, their customers by being in cahoots with the inept local councils in the bedroom tax decision making process and the Welwyn decision exposes that.
- Then the poor sod tenant has been getting shafted by council and landlord as they are the lowest in this top down offensive farce and sham of a policy and even bigger sham of how it has been decided.
That is the reality and just some of the huge significant factors of this (correct) Welwyn Hatfield council decision. Yet it is only the beginning and the room size issue is now opened up to the less than 70 square foot room and right across the country.
As I have always maintained room size is a huge issue in the bedroom tax AND both councils and landlords have this wrong AND appealing against the SHAM decision making procedures used in the bedroom tax decision is a huge area of legitimate appeal for the bedroom tax tenant.
Tenants who have already appealed should be adding this issue into their grounds of appeal and not least that their local council never even considered room size when determining their case and regardless of what other grounds they are appealing. Those tenants who have not yet appealed should do so if their purported bedrooms have a floor area of less than 70 square feet.
What a bedroom is and how many you have is a matter of FACT and not one of landlord and council ECONOMIC CONVENIENCE.
No benefit decision should ever be taken and implemented on a person or household that adversely affects them when it is not based on fact yet that is what has happened in the bedroom tax decisions.
It is time the bedroom tax tenant stood up for their rights and asserted them. Get appealing.