Local councils do have discretion and can decide that a bedroom has to be a minimum of 70 square feet and so could exempt 150,000 or more households from the bedroom tax. And its time that local councils grew a set and ruled that all bedrooms need to be a minimum usable floor size of 70 square feet.
Yes it’s back to our old friend the size issue in the bedroom tax and the above statement has three elements.
Firstly, the 150,000 number is an estimate based on 20-25% of properties having alleged bedrooms under 70 square feet and while just an estimate note that Fife council figures show there it is 31% which would see over 200,000 taken out.
Secondly, the minimum room size issue of the 1985 and 1987 Housing Acts was highlighted 6 weeks ago when the Mirror runs a story on how the bedroom tax is a postcode lottery. Using data from False Economy it said that 15 councils were using the 1985 Housing Act minimum room size criteria of 50 square feet. I will return to this in some more depth below though False Economy had researched local authorities on this and received responses which I will discuss when the Mirror article did not.
Thirdly, local councils administering housing benefit of what the bedroom tax is part do have discretion. Every day they decide for example whether a property is sheltered housing or not and have done for decades and like the bedroom tax the term ‘sheltered housing’ also has no legal definition. So councils can’t get away with we don’t have to decide what a bedroom is as there is no legal definition of ‘bedroom’ as the exact same circumstances occur with ‘sheltered housing.’ They do have discretion and the legal powers to do this!
The Mirror article and other posts I and many others have put out have reported on councils deciding to say a room of less than 50 square feet is not a bedroom and Bristol and Welwyn & Hatfield councils have had their actions widely reported. Yet the hoard of professional naysayers are quick to say this size issue only applies to council housing as it is a case of council landlords in effect doing a reclassification. It does not apply to all social landlords in those areas just to council-owned housing they say. (See below why this is a nonsense)
This is nonsense and always has been and I will say why below and critically using what councils said in response to False Economy which have not been released before and make very interesting reading indeed!
There are now at least 21 councils who say the 1985 Housing Act applies namely Bristol, Croydon, Dacorum, East Devon, Gosport, Great Yarmouth, Gwynedd, Kettering, Mansfield, Milton Keynes, Moray, NE Lincs, North Tyneside, Portsmouth, Rutland, Sandwell, Selby, South Kesteven, Stockport, Welwyn Hatfield and Wrexham.
When we look at what they say the matters become much clearer and note well the fact they have so decided substantiates my point that councils do have discretion to interpret what constitutes a bedroom.
Take Croydon who said: –
“The council is applying the national bedroom standard to assess under-occupation. The definition used in calculating the number of bedrooms in council properties is the definition of statutory overcrowding contained in the Housing Act 1985, thus we disregard rooms measuring less than 50 sq ft and treat a room measuring between 50 and 69 sq ft as adequate only for a child under 10.”
Croydon expressed chapter and verse here unlike other councils which limited the 1985 Act just to any room under 50 square feet. Croydon correctly sees the 50 to 70 square feet issue as did the judge in the Fife bedroom tax cases which the DWP is seeking to appeal against. On the wider point of if the 1985 Act applies to the bedroom tax or not it must apply to both of these size issues and not just the under 50 square feet issue if the Act applies.
Then see what they advised social landlords which they were also asked by Croydon (and naysayers please take note): –
“The council asks registered providers of housing to use the same definition as the council to determine the number of bedrooms in their properties.”
You see the council asked housing associations in terms of what is a bedroom to define their properties in the same way. So Croydon council in its decision-making role for housing benefit sees ALL properties from ALL social landlords treated equally and needing a full bedroom to be a minimum of 70 square feet. There is no distinction, which would be unlawful anyway, between a council owned property and a housing association property in terms of how it is treated for bedrooms in the bedroom tax.
North East Lincolnshire was very succinct in response
“Housing law states that a room must be more than 70sqm before it can be classed as a usable bedroom.”
Note the ‘usable’ bedroom nuance and some others said it needs to be 70 square feet to be a ‘habitable’ bedroom such as Wandsworth who said:-
“… It should be noted that the Housing Department do not designate more than one room in a property as a living room and any room under 50 square feet is discounted as a habitable room”
Then Portsmouth said
“The over-arching definition of a bedroom is contained within the 1985 Housing Act (much of which was taken whole-sale from criteria dating back to the 1930’s) – nothing smaller than 50sq foot can be considered a bedroom, and we are looking at further standards from the private sector on habitability to give even greater credence to our assessments.”
So Portsmouth sees the 50 square feet issue and is looking at extending this but not through the 50 to 70 square feet 1985 Act issue but in reference to privately rented housing and presumably independent rent officer determinations? Interesting and yet again evidence of councils discretion and powers.
Yet at the other extreme we see the likes of Tamworth Council who say:
“All Housing Associations and the Council provided details of how many bedrooms there are in each of their properties. This information was used, without question”
In other words room size does not matter a jot and it is whatever the landlord says!!! Do we get the impression here reader that Tamworth was a bit pissed off answering questions about room size and the bedroom tax??
The problem with this view so tersely stated by Tamworth – and the ‘up to the landlord’ statement was used specifically by another 36 councils who gave responses – is that the judge in the Fife cases said very unambiguously that the landlord’s view is indicative but NOT determinative.
Councils as decision-makers can choose to accept the landlord’s view yet they can also choose not to accept it. Or as in the case of Croydon above they can state to all social landlords what they perceive a bedroom to constitute in terms of room size – or any other bedroom constituent part as Slough did:
“Slough BC assumes that its properties will have a separate bathroom, kitchen and living room. Other rooms including parlours will be considered as a bedroom unless it does not have access to a hallway (e.g. has access to kitchen), has a gas fire, or is below 50 square feet.”
Again we see the discretion locla councils have in formulating for bedroom tax purposes what a bedroom is. So will all these 36 councils who so definitively said room size doesn’t matter and it is entirely up to the landlord have to reconsider their position? Yes. Will these 36 councils now be inundated with appeals? Yes. Those 36 councils I have listed at the end of this post and note these are the only one who said this specifically yet in responses I have posted from my 6 original template questions to councils we know that it is almost all of them!
I could go on and on here with the subtle and not so subtle differences. Yet these responses all show that local councils DO have discretion in determining what a ‘bedroom’ comprises for bedroom tax purposes. A working and commonsense definition with regard to statute as opposed to a legally definitive one which all accept does not exist. Many councils stating that the 1985 Housing Act states what a bedroom cannot be, ie under 50 square feet, and then seeing this as the same as defining a minimum size for what is a bedroom and like the judge in the Fife cases accepting that under occupation is the flipside of over occupation or overcrowding to which the 1985 Act was drafted specifically to address.
The most interesting aspect for me is the argument I stated above when I mentioned the naysayers who spout “It does not apply to all social landlords in those areas just to council-owned housing they say.”
The naysayers view separates out the council as landlord from the council as bedroom tax decision-maker. The HB officer who is the decision-maker can choose to accept his colleagues view in the council housing department that a bedroom needs to have a minimum floor size but apparently in the naysayers view is free to tell housing associations that it doesn’t apply to them!! That is fundamentally irrational and must be an unlawful position for the councils HB officers to take. They cannot say it applies to council-owned properties but not to HA-owned properties!
Then re-read the Croydon position above which I strongly suggest is the correct view as it is equitable to all social tenants and guides the social landlords to define a bedroom consistently, though if it added on the Slough aspects such as access and absence of a gas fire it would have been more comprehensive. And then include another view on those properties with two living rooms or parlour houses as they are often described and Mid Suffolk council states: –
“The number of bedrooms that the property was built/designed to have e.g. A downstairs dining-room used as a bedroom is not a bedroom but an upstairs room used as a Study is a bedroom. Any alterations must have been with the consent of the landlord.”
So a downstairs room is ok not to be a bedroom for bedroom tax purposes but if it is upstairs then its purpose must be a bedroom and not a study? Does Mid Suffolk have bungalows or flats anyone? Ahem!
I disagree with the opening line of that when it says the “…number of bedrooms that the property was built/designed to have” as this is too simplistic and I would also argue against strong housing law precedent in Prout v Hunter (1924) and part of the Rent Acts.
Prout –v- Hunter I have said was what was in Simon Collins QC’s mind when he ruled on the Fife cases. A decision needs to be taken on the facts and the facts at the time the decision was taken in simple and understandable terms. We know when ALL the bedroom tax decisions were taken (between Dec 2012 and March 2013) and so what relevance the original build has legally is of little consequence, just as what it says on the tenancy agreement.
A property may have been a 3 bed 20 years ago but that doesn’t mean it is one now as the Janet Bell case so simply reveals. But in the council responses to False Economy we see so many councils saying it is whatever it says on the tenancy agreement and this is another of the legal myths for me in the bedroom tax. The councils who have repeated this parrot-fashion as excuse will also need to go back and reconsider this errant view and what it says on the tenancy agreement is again only indicative and cannot be determinative. 45 such councils stated specifically in their response to False Economy that a bedroom is what it says on the tenancy agreement.
What this shows is that local councils took a number of shortcuts in determining the bedroom tax. They invariably chose to believe the landlord’s word and chose to believe what it says on the tenancy agreements despite both of these being indicative and not determinative. The reason was a sole one and it is cost. For councils to decide correctly whether the bedroom tax applied they would have to check each property for room size, room usage, room purpose, room access and many more aspects. That would have been hugely costly and hugely time consuming too. Yet that is what was needed and what we all expect public authorities to do – do the job correctly and lawfully.
However because of the huge costs councils simply imposed the bedroom tax deductions based on the views of the landlord who has a vested interest in saying there are as many bedrooms as possible. In doing so councils imposed the bedroom tax deductions not on the facts of each individual case but on a guess basis – and when you consider the genuinely life-changing impacts the bedroom tax holds those shortcuts are a national scandal and disgrace.
Now we are seeing those tenants who decide to appeal against this sham of a decision-making process have their cases upheld and revealing what I have said all along – that the bedroom tax decision-making process was a sham and unlawful.
How many more individual cases in individual towns and cities from Land’s End to John O’Groats will it take for ALL the bedroom tax decisions to be ruled unlawful because of the sham decision making process? I do have some sympathy for local government HB officers as they were told to impose a HB deduction if a tenant has too many bedrooms yet were told there is no definition or hope of a definition of what a bedroom is by central government. That DWP guidance for the bedroom tax (A4/2012) has always been a joke and a farce yet local councils did not have to adopt the Nuremburg defence they are doing know – we were only following orders.
Yes the fault clearly lies with IDS and this crackpot of an idea designed on the back of a fag packet, but local councils adopted the easy way out, an unlawful sham of a way out, with a strategy of we have x amount of time do the best we can in that time. That is not and can never be acceptable. As well as the public rightfully expecting a public authority to do it right, the same public authorities ie councils are correctly governed by the law to make sure they do it right. With the bedroom tax decisions they simply cut corners and a sham decision-making process followed. For them now to bemoan how much MORE this is costing them and how much more this is costing the public purse and taxpayer is hypocrisy writ large. They are reaping what they sowed.
If local councils and its lobbies such as the LGA has stood up and said the bedroom tax guidance is irrational and unworkable, which it is, I would have had sympathy for them yet because of their cowardice they are now experiencing huge costs locally and in essence allowed this transfer of costs from central to local government because they did not stand up and challenge the irrational and unworkable bedroom tax guidance given to them by DWP.
What the local council responses reveal is the sham of the bedroom tax decision-making process and that every tenant, yes all 660,000, should appeal and have legitimate cause to appeal. Can anybody please inform me of a bigger dog’s breakfast than this?
- Did the council ask you about room size? No – appeal (A) (F)
- Did they ask about room usage? – No – appeal (A) (F) (G) (R)
- Simply take your landlords word? Yes – appeal (A) (F) (R) (G)
- It’s whatever is on the tenancy agreement? Yes – then appeal (A)
- Ask about your disabilities/need for bedrooms? No – appeal (A) (F) (G) (R)
- Did the council inspect your property? No – appeal (F) (G) (R)
- Did the council ask if room ever used as a bedroom? No – then appeal (A) (F)
(A) All 660,000 cases – (F) Fife – (G) Glasgow – (R) Redcar – Westminster
Can you council say ALL bedrooms for bedroom tax purposes must be 70 sq/ft? Yes – so why the hell haven’t they as it is lawful and would save them and tenants and landlords and local businesses and the local taxpayer an absolute bloody fortune.
List of councils who said specifically the response “it’s up to the landlord”
BABERGE, BIRMINGHAM, CANTERBURY, CHELMSFORD, CHELTENHAM, CONWY, CRAWLEY, DOVER, EAST RIDING, FAREHAM, HARROGATE, HULL. LAMBETH, LINCOLN, MAIDSTONE, MANSFIELD, MID SUFFOLK, NORTHAMPTON, NORTH KESTEVEN, NORTH NORFOLK. PERTH & KINROSS, REDDITCH, REDBRIDGE, ROCHDALE, RUGBY, SEDGEMOOR, SELBY, SEVENOAKS, SOUTH DERBYSHIRE, SOUTHEND, STOKE, STROUD, TAMWORTH, TEIGNBRIDGE, VALE OF WHITE HORSE, WAVERLEY, WEST DUNBARTONSHIRE…and all those councils that didn’t respond such as KNOWSLEY, LIVERPOOL, SEFTON, ST HELENS and WIRRAL in Merseyside and BARNSLEY and TORBAY and MERTHYR TYDFIL and SWALE and MIDLOTHIAN and…Yes all the rest of them too!
Post title is a cryptic crossword clue (6 letters) – Vegetable taken from bedroom tax tenant. Ring any bells?…….APPEAL