Fife bedroom tax decision – the VERY real significance

The significance of the First Tier Tribunal bedroom tax decision I revealed Friday cannot be underestimated and that is not hyperbole.

The 3 page judgment is crammed full of issues which every bedroom tax affected tenant can use to appeal with legitimate cause and grounds.

They should do so too and all 660,000 affected should appeal as that decision to appeal is a no-brainer and the ONLY way that each case can be decided correctly!

I have long advocated the decision making process itself was a legitimate ground for appealing and many disagreed with me on that.  I maintained, and this judgment agrees, that each case needs to be dealt with on the facts of the individual case and that is very significant and right and just for me. Yet the Fife case mirrors the decision making process that every council undertook and in simple terms this is a 2-stage process:

1. Council asks for landlord view
2. Council chooses to accept landlord view and imposes the bedroom tax on the landlord view

On point 1 above I will simply restate this follows the DWP guidance given to councils in the HB Circular A4 of 2012 and remind that it also says at paragraph 20 that the landlord was under no compulsion whatsoever to provide anything to the council.  Yet landlords unilaterally provided DATA to the councils.

(Data needs to be processed before it becomes information and councils did NOT process that data)

On point 2 the councils CHOSE to accept the landlords view as this judgment states yet note well the councils could have chosen NOT to accept the landlords view which meant they would have to process that data for it to become meaningful information.  The decisions were taken and could ONLY be taken by councils who are the sole decision makers and act as agents of the DWP in administering HB regulations of which the bedroom tax is a part.

Councils were placed in a huge predicament by central government with the bedroom tax.  660,000 additional cases to decide and they SHOULD have decided them as all benefit decisions should be decided – on the facts of the matter.  Yet this would have meant council officers measuring room sizes and checking room usage and room purpose which this judgment rules are relevant factors and principle factors.  They are matters of FACT in simple terms.

However to do such checks would have cost a fortune to each local council and so each council chose to take the landlords view for cost saving factors and this is the problem I have always had with the decision-making process taken and why it is a farce and ripe for legal challenge.

What this resulted in was 660,000 bedroom tax decisions taken on a cheapest-route-possible-and-lets-hope-they-are-right basis by every council.  They were not taken on the FACTS of each case when they should have been taken this way. That is why the decision-making process for all 660,000 bedroom tax decisions has always been ripe for legal challenge and in appeal terms legitimate cause.

The Fife judgment strongly infers and reveals that each case needs to be judged on the facts of the matter of each individual case.  It also states that the decision needs to be based on the facts at the time the decision was taken and that room usage and purpose is important.  These are the 3 principal elements of Prout v Hunter a long established housing law precedent from 1924 and part of the Rent Acts in my lay view (and if anyone has an electronic copy of this judgement can I have a copy please!!)

In practical terms the ONLY way for a bedroom tax affected tenant to have his or her own case judged on the individual facts of the matter IS to appeal.  That is wrong and frankly saddens me yet it remains valid.  If the tenant appeals the tenant gets what they should have done and have a right to expect in the first place.  If the tenant doesn’t appeal then they get shafted by the farce of a decision-making process every council undertook in the bedroom tax.

That bloody stinks and always has!  I can see why councils CHOSE to take this lowest cost option yet it most certainly does not excuse this outrageous decision-making process which places some of the poorest families into deeper poverty. As far as I can discover local councils were given no more money or resources by central government to make these additional 660,000 decisions either, yet that is at best explanation but still not excuse.  The bedroom tax decision-making process which local councils were forced to take out of financial necessity at the behest of and following the woeful guidance of the DWP was morally reprehensible.

However in practical terms it is ripe for legal challenge as the final decisions were based on assumption and NOT on facts.  Every single one of the 660,000 households affected has a legal right of appeal and they all should as it is the only way to get their case dealt with correctly.

Before the Fife judgment this route of legitimate appeal, this door was ajar. Now a stampede of horses has bolted through that door!

So for me, every bedroom tax case has legitimate cause and a legitimate ground of appeal as to the farcical and outrageous decision-making process adopted by all councils.

The Fife judgment also allowed and upheld and brings into play for every appeal whether they have been started yet or not what a room is used for and what size a room is and what shape a room is an what the usable floor space of a room is and also the substantive use a room has been put to as being relevant to each individual case.

A simpler way to say that is every council should have asked for the size of each room claimed to be a bedroom and what purpose it was used for and other details BEFORE they took the decision to impose the bedroom tax.

Yet they did not and local councils acting out of irrational DWP guidance and out of financial cost chose to adopt a strategy of this is a best guess at the money we are prepared to throw at it and lets hope few will come back and challenge by way of appeal.  The problem and risk with that strategy was that if tenants did come back and appeal it would cost local councils more. Now the Fife judgment means they will as it opens the floodgates for reviews and appeals based on room size and room usage and the decision-making process itself.

You reap what you sow and local councils, for explainable but not excusable reasons, sowed this farce and now they will pay for it.

Tenants who have already appealed can revise their appeal grounds and make reference to the Fife judgment.  Tenants that have yet to appeal can use the Fife judgment for their appeals which they now will doubtless undertake – and should do so as it costs them next to nothing to appeal.

Tenants can ask and should ask their local councils to review their original decisions citing the Fife judgement and stating that should councils not agree to revise the decision that they will appeal that decision.

The floodgates are well and truly open and this for me is why the Fife judgment is so significant.

However I suspect some will disagree with that view though at least most of the naysayers to my longstanding arguments on ‘process appeals’ who claimed not to see what I meant or that such arguments were weak or as in the scandalous case of the Chartered Institute of Housing (CIH) say they were poor professional judgement on my part and would damage ‘legitimate’ cases will now see the point and/or put their brains in gear before stating their errant and ignorant opinion!

I strongly suspect nobody will say the Fife case is not significant because they will be clearly wrong. Some will say I am over-egging the pudding but I strongly dispute I am and the real significance is in the final paragraph below.

There are also some subtle elements of this judgment which are not at all clear and may have some additional significance too.

For example in paragraph 14 it says

“Given the proximity to the kitchen, moreover, I do not consider that is could appropriately be used as a bedroom.”

The Fife judgment thus introduces the concept of ‘appropriate‘ use. What that means we can only speculate yet it does mean appeals will be launched on whether classifying a particular room or ALL rooms as bedrooms  – as has been the case – is appropriate.  I can see a lot of very creative appeals being launched on this basis alone.

Another similar example is found at 15 when it says:

“While in theory it may be possible to squeeze a single bed into this room I do not accept that overall it is reasonably fit for use as a bedroom..”

When is or is not a room reasonably fit for use as a bedroom? Again a new concept to discuss and a new avenue of potential challenge by way of appeal.  When I first read this I was minded of the 34 square feet purported ‘bedroom’ in Coventry which both the landlord and council insist is a bedroom. I discussed this here and it was a case of a single bed could fit but it only allowed the door to open 11 inches to gain access!

Eric Pickles certainly would not be able to access such a purported bedroom! Yet would that only lead to and extension of the sanctimonious attitude Edinburgh Council has adopted by saying if you drink or smoke you wont get a DHP? Sorry I’m digressing reader.

What that Coventry case reaffirms to me strongly is that every case needs to be individually assessed on its own merits.  Yet the decision-making process as I discuss above and have discussed ad infinitum (and as nauseam to some!) prohibits this and only allows this to happen by way of appeal.  I am also minded of Simon Collins QC reported opening remarks in this case when he said the council hadn’t even been out to inspect the room.  In this judgment he clearly and rightly believes the council should have inspected the room and dealt with this case at review and not let it go to appeal.

I now strongly suspect councils will overturn many of their own decisions at a review and not go to the cost of allowing cases to reach appeal.  If they do not then I am sure they will get short shrift from the tribunal judges and rightly so.

At this point I include an actual example.  Below is a picture of a purported bedroom which the landlord has said is a bedroom (as that is what their asset register says) and the council has said is a bedroom (as that is what the landlord has said!) and of course the council has imposed the bedroom tax deduction on this data transfer from the landlord and so put the very disabled tenants into arrears and placed huge stress upon them (something that cannot be articulated but a huge issue with the bedroom tax).

       

As you can see it may just about be technically possible to fit a single bed in this room (with the vertical lift door closed) yet if anyone can tell me how this can be deemed a bedroom then please do so!!  This is a clear case of a room not being appropriately classed as a bedroom and of being not reasonably fit for use as a bedroom.  Yet according to the bedroom tax decision-making process it is deemed a bedroom!!

Of course neither the landlord or the council has been out to inspect this room – it’s a case of computer says no – oh and just for good measure the other room they both say is a bedroom measures less and has less floor space than the 67 square feet room the Fife judgment ruled not to be a bedroom!! Another landlord 3 bed becoming in reality and in law a 1 bed anyone?

The above may be an extreme example yet it is used to show how pathetic and outrageous the decision-making process is and has been and how bloody obstinate local councils have been too!!

This example also raises another concept of the Fife judgment – that of usable floor space.  This can be interpreted as going beyond the 1985 Housing Act overcrowding definition which merely relates to actual floor space.  How many purported bedrooms across the UK have built-in wardrobes or are L-shaped due to some past conversion or have boilers in cupboards at floor level or other built-in factors which reduce the actual floor size area?  Very many and the Fife judgment again through the concept of usable floor space opens up so many more legitimate appeal grounds and could include rooms where the actual floor size is greater than the 70.1 square feet issue of the 1985 Act.

The Fife judgment is indeed becoming a banana skin for the universal and farcical bedroom tax decision-making process all councils adopted.

I have used pictures above and that raises another very interesting point from this judgment. We know from the opening remarks of Simon Collins QC (here) that the council never even went out to inspect the room.  It seems that the photographs of the rooms were supplied by the tenant (the appellant) or more than likely by her representative Graham Sutherland and what a great job he did and deserves the thanks of 660,000 households or about 1.6m men, women and children. Yet should it be for the tenant to have to disprove the council decision after they have made a pig’s ear of the original decision?  My view is strongly that it should not be and I restate my view again that every council needed to and should have taken all of the facts into consideration before making the decision.

The judgment does not support my view unfortunately but what it does strongly make evident is that if and when a tenant disputes or challenges the original decision then the councils will have to come out and inspect the property to reach a correct determination.  This will mean councils will have to go to the expense of taking photographs of rooms as well as measuring them, of enquiring with the tenants as to what the purported bedrooms are used for and how long they have been used that way.  So the added resource costs of new staff, of  creating proper policy including a definition of what a bedroom is and is not of the huge administration that goes with this etc, etc, etc. I reported previously that Bristol City Council has sent out surveyors to measure up room sizes (and room sizes alone) and that must have incurred a huge cost to the council.  Now as it seems highly probable that councils need to inspect any disputed decision in terms of room size, usable floor space and room usage – far more time-consuming and expensive inspections –  then all local councils are going to experience huge additional costs of inspection of purported bedrooms.

Councils will start to reap what they have sowed shortly as many more reviews and appeals will be submitted and rightly and directly because of the Fife judgment and the Fife principles.  You have to ask why councils sowed banana skins in the first place and that as we all know is because IDS and Freud allowed yet another back of a fag packet policy with even more inept guidance to come out of the DWP!

Anyone still think this judgment is not significant?  Anyone still think my advocacy and promotion of challenging the decision-making process was not legitimate grounds of appeal? Anyone still think that not every bedroom tax case, all 660,000 of them, do not have legitimate grounds of appeal against the bedroom tax decision-making process?

Ok that rant over and try this…Anyone think the appeal route has a better chance of success for a disabled household than judicial review?

I do and here is why.  The 10 cases that went to JR and resulted in an adverse judgment a few weeks ago lost in large part because LJ Laws accepted that the DWP case couldn’t successfully categorise the disabled persons affected by the bedroom tax.  Disabled was too broad and too loose a category for which to exempt this class or classes of persons.

Another way to view that is and a correct way to view this is the JR case viewed disability as a concept or theory or construct and was not based on the individual facts of the individual cases which is what an appeal IS all about. It is based on the facts of the individual cases and not on some theoretical construct which in any case the High Court couldn’t determine!!

However if all of the reported 420,000 households appealed then their cases would have to be judged on the individual facts of each individual case.  In fact outside of appeal the JR left the HB appeal route as the only option for the 420,000 disabled households to have their cases decided correctly as they should have been in the first place but we had instead the farce of the bedroom tax decision-making process preventing that!

So many of the many reported ‘disability’ cases we have been inundated with across TV and radio and the papers and social media since the bedroom tax hit the public domain in early February and stubbornly remained there too have argued on the same room usage and room purpose grounds the Fife judgment accepted were and are relevant and need consideration.  

Anyone still think we are not going to see a huge increase in appeals because of the Fife judgment?

Finally and I return to significance.  I am sure some legal minds will say I have over stated the legal issues here and I am just as sure they will be right by degree.  Yet the Fife judgment and the Fife ‘principles’ as I call them (room size, room usage, room purpose, usable floor space, appropriateness of being termed a bedroom, reasonably fit to be a bedroom) all open the doors to challenge by way of appeal.

Bedroom tax households ARE very aggrieved and ARE feeling the very real effects of 23 weeks into the policy and tenants there will say hang on….

• my so-called bedroom is less than 67 square feet;
• my so-called bedroom is L-shaped;
• my so-called bedroom is used to store my disability equipment;
• my so-called bedroom has built-in wardrobes / airing cupboard

…..and so on and will realise it costs them nothing to appeal and it is their right. The decision to appeal is truly a no brainer.

The Fife judgment will inspire many more tenants to appeal the bedroom tax decision on the basis that if it can happen to one very brave and heroic lady (who has 3 part-time jobs by the way and is very intelligent and articulate) who took on her council and landlord and won it can happen to me.

In simple terms and as a direct result of this very encouraging judgment the bedroom tax tenant will evaluate their two options:

• I can sit here do nothing and mope and be stressed to buggery and have no chance of putting food on my table or of paying any rent whatsoever in the run up to Christmas…. or,
• I can launch an appeal which costs nothing

That is the very real consequence of this judgment.

Anyone still think it is not significant? Didn’t think so!