Every local council got every bedroom tax decision legally and badly wrong

  • Everyone of the 660,000  bedroom tax decisions was legally flawed. 
  • Everyone of the 660.000 bedroom tax victims should appeal the decision
  • EVERY council got the bedroom tax decisions wrong

These are three bold statements yet three very accurate statements and what I have maintained all along. 

They are accurate because EVERY council did NOT take room size into consideration when making the original bedroom tax decisions.  I restate them here because the Sunday Mirror is running part of the story I released a few weeks ago about a decision – a COUNCIL decision – taken by Welwyn & Hatfield Borough Council which strongly supports the three statements above.  Yet the Sunday Mirror in its ignorance chooses to focus on the fact that Welwyn is also the parliamentary constituency of Grant Shapps, the Tory Chairman and former housing minister, the Sunday Mirror focuses on the narrow political point and NOT on the real issue that ALL bedroom tax decisions are legally flawed.

The Sunday Mirror today reports the story I posted a few weeks ago about Welwyn & Hatfield Council and the bedroom tax yet it doesn’t see what is staring it in the face – that if Welwyn can do it then EVERY council can do it!

Here is what the Sunday Mirror reports: –

Under new rules, bedrooms less than 4.65 square meters will be reclassified as box rooms so that tenants will not be liable for the levy. Around 100 residents in the former Housing Minister’s constituency will benefit…But this week a Tory spokesman refused to condemn party allies in Welwyn Hatfield, saying it was a “matter between the local authority and tenants”.

What the Mirror fails to see is the Tory spokesman’s quote that the bedroom tax is a matter between COUNCIL and tenant.  This is the only significance of the Sunday Mirror article. Note well it does not say landlord and tenant it says COUNCIL and tenant as councils are the SOLE decision makers in the bedroom tax decision because (a) the bedroom tax decision is a housing benefit decision and (b) councils alone make housing benefit decisions as (c) councils act as the agent of central government in taking housing benefit decisions.

What Welwyn has admitted – as a COUNCIL and not as a council landlord which is a crucial distinction –  is that they were wrong not to have considered the size issue when they made the original bedroom tax decisions.   Note well in my post about this the actual council minutes which state this decision to be one of the council and not the councils housing department – It is the council in its role as the agent of central government and the SOLE decision maker for bedroom tax decisions and not as just a mere landlord.

Now also note if the Mirror figures of 100 or so is right it doesn’t mean Welwyn made 100 wrong decisions it means Welwyn made all 1557 decisions wrongly as ALL of those decisions failed to consider the room size issue. Every single bedroom tax decision is legally flawed.

Just as Welywn as one council was wrong to ignore room size so were all other councils in all of their decisions and so we see ALL 660,000 wrong decisions that were made by all councils as being legally flawed and legally unreliable.

Those new and old to the bedroom size issue may not realise that 4.65 square metres is 50 square feet and this ruling comes from the 1985 Housing Act which says that any room under 50 square feet in floor size CANNOT be a bedroom and CANNOT be determined to be a bedroom.  This Act is a legal definition of a bedroom as it dictates what a bedroom is NOT and also says that any room between 50 and 70 square feet is half a bedroom and again defines what is NOT a bedroom – what a bedroom is not is the same as what a bedroom must be as it amounts to the same thing and a bedroom must need to have a minimum floor size of 70 square feet.

Any definition of a bedroom has to include floor space size and the 1985 Act says a bedroom has to be above 70 square feet therefore anything less than this is NOT a bedroom.

The Mirror unfortunately in its attempts to dumb-down the issue used the term reclassify which adds confusion to the issue. The council has NOT reclassified anything the council has simply adopted a definition of what a bedroom is and specifically Welwyn has decided that any room under 50 square feet is not a bedroom.  Landlords can reclassify a property from say 3 bedrooms to 2 bedrooms and a boxroom but a council cannot reclassify.  It amounts to the same thing except that when a council decides a room under 50 square feet is not a bedroom for bedroom tax purposes it applies to all rooms and whether the landlords wants to reclassify or not.

The Welwyn decision is a decision of the full council and was taken by the cabinet of Welwyn Council and applies not just to Welwyn’s own council housing properties but to ALL social landlord properties in Welwyn & Hatfield.  In simple terms the decision taken was by Welwyn Council as a corporate body and not by Welwyn Council Housing Department and that is a crucial issue.

A council decision from the cabinet of any council applies to all council decisions and to all social housing properties in the council’s area and not just to its own housing stock. A council cannot treat its own properties differently to any other social landlords when it acts as the agent of government and as the sole decision maker for a national welfare benefit such as housing benefit. To do so would be overtly discriminatory and a legal nonsense and fiction.

The Sunday Mirror article sees a Tory spokesman confirming that the bedroom tax decision is one between the local authority (the council) and the tenant which like all housing benefit decisions is fact and what I have maintained all along.  Of course this has not stopped social landlords from saying, erroneously, that the bedroom tax decision and specifically what is a bedroom is a decision between landlord and tenant: For bedroom tax purposes what is a bedroom is whatever a council as the sole decision maker decides a bedroom is or is not.

To take that point to a ridiculous extent any council could decide for the purposes of bedroom tax HB decision that a room is only a bedroom if it is 10,000 square feet or if it is painted orange and is circular in shape.  That silly example emphasises the key issue that the COUNCIL decides the central question of what is a bedroom and not the landlord – the landlord is a mere third-party to the decision and one with a vested interest too.  Yet social landlords opinions of what a bedroom is have been taken as read by all councils and because it suited both council and landlord to do so and specifically because it was the lowest cost option for councils. To simply and blindly accept the landlords word on what a bedroom is saved councils from making a correct decision based on fact and on law.  Councils as the sole bedroom tax decision maker sought to ignore the law, the 1985 Housing Act which says that a room under 50 square feet – or 4.65 square metres – CANNOT be a bedroom.

Your local council decided that this law this statute they did not have to apply or consider in making the bedroom tax decision because – in their view – it ONLY applied to over occupying and not under occupying.  That has always seemed ridiculous to any lay person and as yet has not been challenged legally.  Yet all councils went much further than this basic point and decided this also meant that room size was something they did not have to consider as part of the bedroom tax decision and the bedroom ‘tax’ or HB deduction can ONLY be applied on a bedroom and not on a mere room.

Councils who HAD to decide what a bedroom is in order to be able to make the bedroom tax decision that any tenant had a spare one, simply delegated that element to social landlords which in itself is a legal issue for me too.  Can a local council which I remind acts as the agent of central government devolve that power to a social landlord?  Let me make that simpler – Is a local council able to delegate that part of the decision to anyone else?  That is what they all did when simply agreeing the landlords view on what a bedroom is and how many bedrooms each property had, yet were they able to do this?  I don’t think they can or could do this.

What happened in the bedroom tax decisions was that rather than ask a third-party (the social landlord) for their view the councils gave away a power they had to a third-party.  Councils in HB decisions do ask the independent rent officer service for their view when it comes to what a bedroom is and how many bedrooms a property has for a private landlord.  The council is then free to decide to accept that independent view or go against it.  Yet in the bedroom tax all councils decided to accept the non-independent and vested interest social landlords word as fact because it was cheaper for councils to do this to make the bedroom tax decision.  Further the social landlord was not under any obligation at all to give each council any information at all as the bedroom tax guidance issued by the DWP says at paragraph 20

“There is no obligation on landlords to reply to a request for information. However it is in their interests to work with local authorities so that they know which of their tenants will be affected.

So not only did all councils merely accept the non-independent and vested interest view of the social landlords and not merely ask for their views, they took this as fact and in reality delegated power to a vested interest third-party who was under no obligation to provide councils with anything at all!  The fact this was also a blanket policy and all councils fettered their discretion seems a minor legal aberration by comparison.

That in summary brings me back to the Sunday Mirror article of today which says that the bedroom tax decision was and always has been between COUNCIL and tenant and not landlord and tenant.  It merely serves to highlight that all 660,000 bedroom tax decisions taken by councils by way of the cheapest administrative cost demonstrates that every one of them is legally unreliable.  All bedroom tax tenants should appeal and have strong legal grounds on which to appeal and they should do so. Councils on the other hand should realise just how legally flawed their position is and how legally exposed they are and if they had any sense would all decide as soon as possible that any room under 50 square feet is not a bedroom and any room between 50 and 70 square feet is half a bedroom.

All councils now must realise this is entirely within their power to do so and it is THEIR decision to do so.  Now is the time for every tenant and activist to lobby their own council to do what is right and what is lawful and get them to rule on room size as part of the bedroom tax.

For all the social landlords experiencing apoplexy over this who errantly believe this means they will have to reduce rent and get less housing benefit ask yourselves one simple question – What powers does the local council have to reduce or restrict the rent?  When you consider that which I will in my next post you will find they have very little powers to do that.  So instead of spouting the usual errant nonsense that room size along the 1985 Act will see you lose income and HB and rent levels will reduce, for once have a look at what powers councils have to do that and you will find they have very limited powers and if you want to throw some real irony into the mix, this coalition took away their biggest power – to refer social landlord rent levels to the Rent Officer – when they introduced the pernicious bedroom tax on 1 April 2013!

Councils can only reduce or restrict a social landlord HB level if the rent is UNREASONABLY high.

So using Liverpool as an example we find a 3 bed rent to be £90 per week and a 2 bed £82 per week.  If the 3 bed becomes a 2 bed = boxroom is £90 per week UNREASONABLY high? No it is not for so many reasons.  Firstly, the property is more than a straight 2 bed in terms of size and so should have a higher rent than a mere 2 bed.  Secondly, a 1 bed social rent in Liverpool (and check its online CBL portal propertypool) range from £70 per week up to £150 per week.  So if the council has decided a 1 bed property is not UNREASONABLY high at £150 per week how can it rule a 2 bed + boxroom is high at £90 per week?  Thirdly, if a social landlord in Liverpool operate the affordable (sic) rent model which can see HB of £110 per week being paid for a straight 2 bed, then how can the council rule that £90 per week for a 2 bed + boxroom property is unreasonably high?

So Mr Finance Director of Social Landlord Incorporated – as it is they who are leading the social landlords ridiculous view that rents must fall and so must HB if the 1985 Housing Act room size issues are ruled – please tell me why you hold this nonsensical view?  Please also advise if your lenders would be worried about this as your asset values wont reduce either!  Of course they wont will they?

So social housing professional and council and social tenant – do you think Welwyn & Hatfield Borough Council have done all of you a huge favour by taking this correct decision? Yes they have!

Yet whether social landlords and local councils choose to get their heads out of their arses and see the logic in this remains to be seen.  They have no excuse not to rule and include room size…well apart from the fact they were wrong in the first place over this and in cahoots with one another and in doing so shafted the vulnerable bedroom tax tenant.

Plus ca change?

21 thoughts on “Every local council got every bedroom tax decision legally and badly wrong

  1. Reblogged this on Grannie's Last Mix and commented:
    Spot on, as usual! Just a thought, and I may be wrong, but if councils act as aagents on behalf of central government and if one of them informs government of this crucial point about the legal definition of a bedroom, then doesn’t government have a duty to inform all its other agents (i.e. councils) of this fact? And ensure they act on this advice to avoid potential legal costs which they will incur if tenants challenge decisions in court? Isn’t it government’s duty to protect taxpayers’ money?

  2. As far as I am concerned a home is not a “decent” home unless it has at least one spare room. But what I would really like to have a response to this. The 1985 Act was referring to overcrowding – hence within it’s definition ALL rooms where people might sleep were included – including living and dining rooms. So far, as far as I know, no council has tried to claim a living room was a bedroom – not so far as the Bedroom Tax goes. But what is to stop them? Anybody??

  3. Pete, do you really think any repayments will be made. This looks like another opportunity for the coalition to retrospectively change the law. We’ll be lucky if we can curl up in the size they decree.

  4. It was perfectly acceptable to reclassify a bedroom as a ‘study’ during the housing boom to avoid certain mortgage/selling charges so why is it not applicable to the most disadvantaged and vulnerable in our society?

  5. I spoke with a bod from the council recently, concerning my appeal against my bedroom tax. In fact, they called to remind me that they are there to help me (!) and, when I told them of the legal size of my spare room and that it’s legally considered 1/2 a bedroom, they said something about about myself having signed a tenancy agreement which states 2 bedrooms.

    Next, being ever helpful, they asked if I had filled in the Discretionary Housing Payments form yet. I’ve read somewhere recently 2 out of 3 applicants are turned down for DHP.

    You couldn’t make this s**t up.

    My council are stealing £50 a month from me for having the cheek to be disabled and live in supported council housing and yet, they phoned to say that they’re there to help me.

    Also, I was a bit suprised that the council still had the appeal and hadn’t sent it on to the relevant body, considering I’d returned it weeks before. Delaying tactic ?

    1. Why do people believe their council? Are councils staffed with fully qualified lawyers when it comes to the bedroom tax and when it comes to what councils have to do in order to make a bedroom tax decision? NO!

      When councils say you signed for a 3 bed property therefore you have 3 bedrooms they are winging it and that is not a definitive aspect at all.

      PS – dont speak with your council – put everything in writing

  6. If you still haven’t heard from your council. Regarding your appeal. Then chase it up. And also tell them you are willing to take it to tribunal… As Joe says. Only have contact with them in writing. Or, you have no proof of what’s been said. And this is crucial.. You must inform your Landlord that you are in the appeal process.. You can apply for a DHP at the same time. That’s a separate issue. Each council have their own policy. And their own fund. And you have to re-apply to them as it is only awarded for a short time… IF they are using DLA as income, then challenge that and involve your MP and your councillors.
    I have heard of councils trying to use a dining room as a bedroom!! Especially in parlour type houses….. However if it contains a gas fire or boiler, this is also illegal!!
    They are trying every trick in the book!!

  7. Further to my above post……. we are hearing that some councils are telling tenants applying for DHP’s will not get them unless they are actively looking at downsizing!!
    With a MASS shortage of smaller accommodation, in particular 1 Bed. This is not even an option!! So, should be included as part of your appeal.
    You can check your own council. Over 400 FOI requests have been made.
    If, you can’t find your council, then do your own request.


  8. Where I live Telford & Wrekin Council are making use of the 1985 Housing Act on room sizes. The local housing Trust though are not informing tenants that bedrooms can be measured.

    I have hopefully helped hundreds of tenants throughout my area because I found out that the Council WILL use bedroom sizes. That means there are many, many tenants who may have a case to claim back the 14% or 25% which they have been charged.

    The Environmental Health dept sent out and measured rooms in private properties since the start of the bedroom tax and I challenged why it is that the Social housing tenants were not subject to the same measuring of bedrooms. I was informed that they are and it was the Housing Trusts that should have informed tenants of this fact.

    All I can say is try it for yourself.

    The 1985 Housing Act and room sizes cannot be changed as this was an act of parliament and it requires another act of parliament to change this, and not just an instruction from central government saying that it is up to landlords to determine the size of a bedroom. That’s one to think about.

  9. A letter arrived from the council;

    [ I have passed your appeal form, regarding the size of your second bedroom to our Housing Management Team, who will deal with your dispute…
    As explained in my telephone call yesterday Housing Benefit can only be awarded on a one bedroom property under the Housing Benefit Regulations. 2006. ]

    So now I await the Housing Teams decision. I’ve never heard of the 2006 regs before. Ooh, how they wriggle.

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