Do you have a boxroom; do you have a L-shaped or other unusual room; do you use a so-called bedroom to store disability equipment or for any other substantive purpose; do you have a gas fire in a purported bedroom; or a certain type of gas fired heater or boiler there; do you have a dialysis machine plumbed in; do you have a vertical lift; do you have a dining room; or any other reason why a so-called bedroom is not appropriate to be deemed a bedroom or is not reasonably fit for purpose as a bedroom?
If so launch an appeal against the bedroom tax decision you have received.
Are you happy that the decision-making process your council undertook was a farce and the bedroom tax imposition can only be a good guess and not a matter of fact?
If not then you should launch an appeal.
Are you concerned that in appealing you will clog up the system and force change?
If not then you should appeal.
Are you worried that appealing will cost you only your time and some paper and printer ink?
If not then you should appeal.
Do you want your individual case to be judged on a factual basis and an individually correct basis as it should have been in the first place?
If so then appeal.
However, if you are happy for the government to reduce your subsistence level welfare benefits on what you consider to be your family home then sit on your backside and do nothing!
That is what the Fife judgment means for the tenant.
Dear social landlord,
Are you happy that the government’s bedroom tax policy is a substantial attack on your business and could lead to your organisation going bust and be the death of social housing?
If not encourage and assist your tenant to appeal as that is what the Fife judgment means for social landlords
Are you happy that the bedroom tax farce of a decision making process forced on you by central government is now going to cost you an absolute fortune and is a massive transfer of additional cost and financial risk to you from central government?
If not then encourage the HB tenant to appeal and look for once at what the Fife judgment now means for you and use your lawful powers to determine for bedroom tax purposes what is a bedroom and what is not a bedroom.
The Fife judgment, despite being only a First Tier Tribunal judgment has set the cat amongst the pigeons for the bedroom tax. It is of huge significance and opens up the many and varied challenge to the bedroom tax policy and will force tenants, landlords and councils to massively rethink their bedroom tax strategies. It has to be seen in the context of the bedroom tax debate and the many current issues this has thrown up.
Previous arguments that have been seen as radical by some (wrongly) now become very much at play and necessary mainstream ones and it all stems from the woeful and hugely flawed bedroom tax decision-making process councils undertook because of the huge steer given to them by central government in the a4/2012 guidance.
This is lengthy but please read on.
Can councils rely on the word of a social landlord?
No they cannot and no they should not is the message that is revealed from the bedroom tax tribunal in Fife this week. The property the landlord insisted was a 3 bed was ruled by the tribunal to be a mere 1 bed: This was not a little change it was a massive change as I will come on to and I also explain why landlords cant afford to let councils rely on their word.
So were councils wrong and lazy and stupid to rely on the landlord’s word? Yes has to be the answer. But it is not just something wrong in the Kingdom of Fife as that same lazy decision making process is evident right across the country with councils choosing to accept the social landlord’s word out of expediency and not out of any other reason.
The same councils would not dream of simply accepting the word of a private landlord and that is a fundamental flaw in the decision making process. In the last full year 219,000 private landlord cases were referred to the independent rent officer service by local councils emphasising that point. As such this fundamental element of the bedroom tax decision-making process is and always was hugely flawed and given the ubiquity of that gaping flaw means that every decision taken was flawed in terms of process and lawfulness.
This decision-making farce alone I have always maintained gives just and legitimate cause for all 660,000 bedroom tax affected households to appeal. The Fife judgment also brings in (a) room size, (b) usable floor size, (c) room usage as well as scope for challenges on the appropriateness and fit for purpose issues of a bedroom which will see a huge surge in appeals and quite rightly so.
Yet for me the issue that has always given universal grounds of appeal for the tenant is the offensive decision making process and especially councils choosing out of expediency to believe the word of the social landlord; the same social landlord that has a clear vested interest in stating that each property has as many bedrooms as possible. The fact that 219,000 independent rent officer decisions are requested by councils of private landlord properties is because it is seen as being wrong to simply accept the word of a private landlord. So how can it be correct for councils to merely accept the word of the social landlord?
If councils simply accepted the word of a private landlord then central government would rein down hard on them that would include censure and probably central government making concerted attempts to not pay the full HB subsidy to local government. Yet it is central government’s overt policy guidance for councils to accept the word of a social landlord as outlined in the A4 of 2012 HB circular!
This guidance, which is the only guidance, is the problem as it strongly steered the expediency which local councils took in deciding bedroom tax cases. It is this sole guidance which is irrational in so many ways and I have always believed should be deemed legally irrational or at best in lay terms chronically unfit for purpose.
The bedroom tax decision-making process was guided by central government’s guidance, the only guidance available in the A4/2012 HB circular and was always a disaster waiting to happen. The Fife judgment means that day is just around the corner.
The A4/2012 bedroom tax guidance from central government is where the real blame lies with this not fit for purpose guidance Yet, local councils, who simply followed this guidance out of expediency are now the ones who are going to get hit by huge costs and they are much to blame for that and have in large part brought it on themselves. It is crass stupidity on council’s part brought about by short-term inept thinking.
The bedroom tax is a housing benefit decision and in essence a simple one. Councils had to decide whether a tenant has too many bedrooms for their housing need and if so deduct a percentage of their HB – the bedroom tax. Yet to make that decision councils have by necessity to determine two seemingly simple points – what is a bedroom and how many bedrooms does each property have.
You cannot decide if somebody has too many bedrooms if you can’t define what a bedroom is in the first place!
There is no way around this yet councils refused to define a bedroom either in absolute terms or even a working definition of what is a bedroom when they had the power to do so and still have the powers to do so. It is their decision and their failure to do so will now cost them as they will have to go to the cost of going out and inspecting individual properties when the tenant appeals. Of which more detail is below.
That is a significant point and not so subtle one from the Fife judgment where the judge stated in his opening remarks that the council had not even been out to inspect the property.
How many councils in response to the 6 reasonable questions I drafted as a standard letter came back with if you dispute the number of bedrooms go take it up with your landlord first? Plenty did and that position or deflection strategy by local councils no longer holds and quite rightly. It is up to the council and not the social landlord to determine the number of bedrooms a property has and what is a bedroom.
In simple terms for all those tenants who were told to take up the number of bedrooms with their landlord to dispute or get them to reclassify the number of bedrooms were led up the garden path by your council. They lied to you.
The standard letter I drafted was a request for more information on HOW councils took the original bedroom tax decisions. The questions were all reasonable ones aimed at discovering the process so as to ask the council to review its decision or to appeal against it, or both. The sensible logic being the tenant needed to know this in order to challenge the decision.
The standard questions all relate to the decision-making process and here they are again below:
- A copy of the council’s written policy that includes a definition of a bedroom.
- Failing that a copy of the councils informal or working definition of what is a bedroom for under occupation / bedroom tax purposes.
- A copy of the council’s written policy which states precisely how the council makes a bedroom tax decision.
- A copy of any letter or other correspondence you sent to my landlord (insert landlord name) asking for information about my property.
- A copy of any correspondence you received back from my landlord in response to your request.
- Does the council’s policy in making a bedroom tax decision differ from the guidance given by central government in the A4/2012 HB circular and/or the SI 3040 of 2012.
Questions 1 & 2 were about the definition of a ‘bedroom’ which I say is necessary to make ANY bedroom tax decision. Question 3 was a general open question aimed at process. Questions 4 & 5 sought out what councils asked of social landlords in order to make the decision and what landlords responded with. Question 6 again asks about process.
The 6 questions were carefully drafted to find out the necessary information the tenant needs to launch a challenge over the decision-making process and were widely used with over 180,000 views and downloads from my blog and website in the first two weeks. I also stated they could be freely posted elsewhere and two weeks ago I was informed from one other site that they were downloaded over 340,000 times from end of May to August. So from just two places that is over half a million!!
Tenants from across the country used this and then sent me the responses they got back from councils which I anonymised and posted on here. After posting about responses from Bury, Bradford, Liverpool, Wiltshire, Norwich, Leicester, Sefton, Cornwall, Coventry, Wirral, Salford and so many more it became clear that councils were up to what I called ‘dirty tricks’ to avoid answering these reasonable questions and hide their expediency in that they had ALL chosen to simply accept the social landlords word. Councils knew they were on a very sticky wicket indeed though resolutely and stubbornly defended their outrageous decisions to impose the bedroom tax when they didn’t and couldn’t know if their decisions were factually correct.
Councils did NOT ask landlords or tenants about room size or about room usage or usable floor space or whether a gas fire was installed or a gas boiler or gas-fired water heater and all the other pertinent factors and variables that need individual consideration as to whether a room is a bedroom. They now know they should have done!
To make matters worse even when challenged councils did NOT go out and inspect properties (as the Fife judgment now shows they need to) and instead merely wrote to tenants to say take it up with your landlord or we do not need to consider room size or room usage or any other variable. Yet they clearly do and especially so if challenged on any of these grounds.
Councils expediency is merely choosing to accept the landlords word was economic and resource driven and explainable but not excusable. My home council of Liverpool would have needed to inspect at least the 11,680 properties they imposed the bedroom tax on and all in the space of about 4 months. So if the initial desktop exercise may have highlighted say 14,000 potential properties being liable and say each inspection took 1 hour for travelling to and from and actual inspection then Liverpool City Council would have had to run to the cost of 14,000 additional staff hours in 4 months and the equivalent of 22 members of staff working full time on inspection!!
Yet central government gave Liverpool and every other council no additional funding that I can find for this huge added administrative burden. It is no wonder they chose to be expedient and simply choose to accept the social landlord’s word. However, this is still not excusable as they have inflicted huge stress and poverty on the poorest. It is an outrage and can never be excused.
However if the 11,680 all appeal the bedroom tax decision, those inspections will not be 1 hour they will be 4 hours each at least to determine room size, usable floor space, room usage, appropriateness, fit to be a bedroom and so much more as well as the travelling, photography needed, additional admin resources, additional exchange of letters, additional papers needed for appeal bundles and so on. The 22 members of staff for a 4 month period become 88 members of staff – how many millions of pounds of additional staffing costs would that be to the public purse!!
Replicate that across the country and we see any central government savings from the bedroom tax more than being wiped out by local government public purse costs. Local councils ‘expediency’ from the strong central government steer in the A4/2012 bedroom tax guidance is in reality a transfer of higher public purse costs from central to local government!
Did the Local Government Association (LGA), the umbrella body and lobby for local councils raise this with central government on behalf of its members? No of course not as they were as quiet and as timid as the mouse of the housing lobbies such as the CIH on informing central government of this! The oh-we-wont-make-a-fuss-we-have-bigger-issues-to-challenge-central-government-on strategy was very much at play! Oh dear the chickens have come home to roost!! (Yes ok too many metaphors!)
So we see councils and social landlords being timid in their challenge to the bedroom tax and I won’t even mention opposition political parties and their timidity. We have been left with the really tiny button mouse of the tenant. Yet that tenant mouse has roared consistently and after the Fife judgment it will be bellowing and as determined and courageous as a lion! (Ok they are the finally metaphors reader!)
All the above arguments till now are music to central government ears. All the other actors at play are squabbling amongst themselves while they sit back with a cheesy grin on their faces. Yet that will surely now change and in part has already begun before the Fife judgment with 16 councils already ruling on a minimum size of a bedroom. Yet the Fife judgment will be seminal and a catalyst and despite the lawyers saying it is only a First Tier Tribunal decision.
The Fife judgment implications are there for landlords and especially councils to see, and not before time! I can see all councils making definitions of a bedroom and for example stating that any room under 70 square feet is not a bedroom – yes that old chestnut I keep harping on about! It is in council’s economic interests to do so and in social landlords interests to lobby councils to so rule and especially as HB payments will not reduce as councils do not have the powers or scope to rule that a former 3 bed now a 2 bed and boxroom does not have an unreasonably high rent.
What the Fife judgment means is that councils and social landlords will have to look at this properly, and again not before bloody time!
Councils can only restrict (ie reduce) the HB payments is the rent is unreasonably high and they could not be deemed unreasonable as the rent differential nationally is less than £6 per week between a 3 bed and a 2 bed according to official HCA figures, the social housing regulator.
If this was seen as a radical position before the Fife judgment then now it is seen as a natural one and an obvious one and as far removed from radical as the notoriously conservative councils can get. Councils will not be afraid to upset central government and the hollow and toothless threat of Lord Freud in saying DWP will reduce HB subsidy if you don’t restrict HB. Nottingham has refused to lower rents and HB payments as has Leeds City Council who has also stated they have taken legal advice and Freud’s threat to reduce funding is hollow and in short bring it on.
I also know of councils who have sought and are seeking barristers’ advice on these issues and have the political will to rule on bedroom size issues. Until the Fife judgment this was again seen as a radical position yet now it will be a correct expedient position.
The bedroom tax is falling apart at the seams just as Universal Credit is.
The expedient and offensive bedroom tax decision-making process that papered over the cracks has now been taken away and those cracks have become chasms and underneath the tenant appeal volcano is heating up and reaching eruption point. (Sorry reader that really is the last lot of metaphors!)
This all depends on tenants launching appeals yet it doesn’t need all 660,000 as just the threat of say 50,000 appealing exposes the financial risk to councils and enough for them to act and note the DWP estimated 20,000 would appeal. That was always a ridiculously low figure and in light of room size let alone the usable floor space it could easily be 150,000+ properties with a purported bedroom of less than 70.1 square feet. That is a pre-Fife argument. A post Fife argument is then how many purported bedrooms are in fact storage rooms for disability equipment of the 420,000 bedroom tax households with a disabled resident and that is their correct and substantive and historical room usage?
I have had lots of feedback, albeit anecdotal, of tenants being advised by housing officers on HOW to appeal which of course is not formal social landlord policy. This is not just the odd housing officer taking a principled stand there is enough evidence to show this is informal social landlord policy, and why wouldn’t it be? Helping and advising tenants to appeal is very much in social landlord’s interests given that HB payments cannot be restricted. I suspect strongly this will ramp up.
It is very much in local councils interests too to encourage tenants to appeal as it forces the hand of councils to ‘rule’ that a bedroom has to be at least 70 square feet in usable floor space and so take perhaps 25% of cases out of the bedroom tax altogether. This would reduce stresses on DHP budgets and prevent added homeless costs to councils of social tenant evictions – it makes economic sense in other words.
The Fife judgment makes it a no brainer for tenants to appeal, a no brainer for social landlords to encourage tenants to appeal; a no brainer for councils to encourage tenants to appeal – the only loser is central government which is as it should be.
Landlords and councils should be on the side of the tenant as it is in their economic interests to stand four-square behind the tenant appeal cause. This had always been argued as a moral argument and with just cause yet I have always argued it is an economic one which it is, and that argument always has a greater chance of succeeding as bottom-line arguments always have.
Why they are both coming to the party so late is in part explainable yet not excusable. Why landlords and councils did not (want to?) see the argument that the HB departments cannot restrict the housing benefit payments if a council rules on room size has been a massive mistake that has taken a bedroom tax appeal tribunal in a housing backwater to force onto the agenda. (No offence intended it is a stunningly beautiful part of the country.)
Do landlords really want tribunal after tribunal to rule that their 3 bed properties are in fact only 1 beds? What will that to their asset values and social landlord’s financial viability? Create a financial s**t storm is the answer. Social landlords have no choice but to lobby councils to rule on minimum room size else their funders will be banging on the door to renegotiate much higher interest rates as social landlord asset values plummet.
Do councils want to have to go to the cost of inspection upon inspection upon tribunal upon tribunal? Of course not – so they have to act which to date they have stubbornly refused to do. The 16 councils to date that have decided already to rule that a bedroom has to be at least 50 square feet is just a start and the rest will follow.
These 16 councils have ruled this for their own stock and wrongly think this will not apply to housing association tenants in the area. How stupid and naive is that! If a HA tenant in say Welwyn appeals that a purported bedroom is less than 50 square feet what does the council HB department decide? It cannot say there is no rule or that only applies to councils housing and not to HA properties – that is a two-tier and blatantly discriminatory system that cannot hold and is a legal fiction that it can.
The 16 councils rulings on minimum room size apply to all social tenants not just to council or ALMO tenants and so we now have Bristol, Croydon, Dacorum, East Devon, Gosport, Kettering, Milton Keynes, North Tyneside, Portsmouth, Rutland, Sandwell, Slough, Stockport, Wandsworth, Welwyn and Wrexham where this applies. Just 324 more councils to come through thick and fast then!!….Unless of course a brave HB officer in those 16 areas goes against his own council and councillors decisions of course!
The issue is not landlords reclassifying as many HAs have done, and in any case those are pragmatic and partial reclassifications that sees previously difficult to let properties become impossible to let because of the added bedroom tax. That is also why many social landlords have now a glut of 3 bed properties that they cannot let. It is councils making a ruling – a council reclassification – that their interpretation of a bedroom includes a minimum room size and of at least the 70.1 square feet detailed in the 1985 Housing Act which only concerns ACTUAL floor size and not USABLE floor space which would be higher as the Fife judgment rules.
All of the above issues take a much greater priority and context after the Fife judgment and while I expect lawyers to say it is only a First Tier Tribunal and only a small incremental step, it is so much more significant than that when viewed in its correct context. A small step perhaps in legal terms but a huge one in practical terms
The Fife judgment makes tenants, social landlords and local councils sit up and smell the coffee and massively encourages tenants to launch a bedroom tax appeal which even though they may be deemed as ‘out of time’ they have substantive merit on the room size and room usage and all the other grounds the Fife judgment ruled upon and raised, which means such appeals will be heard.
The real simple issue is that the appeal route allows what should have been done in the first place to happen – each case is decided on FACT and on an individual basis and not decided on assumption and collectively en masse through a fundamentally flawed decision-making process by councils who were steered down a blind alley by central government in the A4/2012 HB guidance.
It will be central government that pays for this farce and pernicious policy and that is most definitely what it should be and well deserved.
If tenants appeal then the bedroom tax quickly becomes history as a policy – it is that simple and the Fife judgment heaps encouragement on the tenant to appeal which I now argue will be bolstered by landlords encouraging tenants to appeal
That is what the Fife judgment means and why it is so significant. It is the beginning of the end of the bedroom tax and that process (no pun intended) will happen apace.
Footnote – The title of this post was changed as Inside Housing released an article about this here after mine above was drafted which in cahoots with the CIH (Yes the same who said I was unprofessional and didnt know what I was talking about in advocating appeals on process grounds here) say is ONLY about this property being built in 1660 and therefore has no significance!!! What a crock !!
As I commented underneath this scurrilous piece the judge said
“The property has been subject to recent “unsympathetic subdivision and clusmsy internal arrangement to reach its present state” (para 10) Now I wonder who did that? Oh yes the landlord who stated it was a 3 bed property that the judge has ruled is a 1 bed. So what is the relevance of it being originally built in 1660?”
And strange that IH does not comment on this landlord unreliability or indeed whether the landlord has been overcharging the tenant! Just a few ‘insignificant’ points perhaps?