I have just read the House of Commons Welsh Affairs Committee paper on “The impact of changes to housing benefit in Wales” and there are three immediate issues I have with it.
Paragraph 1 sets the context and begins: –
Housing benefit is a means-tested benefit that is administered by local authorities and is paid to eligible tenants who live in the social and private rented sectors.
This is entirely correct and you will note I have emphasised one part of that entirely correct statement and the responsibility for deciding on housing benefit cases and making housing benefit decisions rest solely with local authorities, or local councils if you prefer. The bedroom tax is a housing benefit decision and local councils act as agents of the DWP and have the duty to determine HB decisions correctly.
Contrast this with paragraph 39 which says: –
The number of bedrooms in a house is defined by the landlord, and is not determined by the size of the room or how the room is used.
This is and has to be a legal fiction. A landlord even if they are a council landlord does NOT and CANNOT decide housing benefit policy. Landlords can give an indication but they cannot be determinative and to do so would see local councils delegating powers to a landlord and that is unlawful and councils would be acting in an ultra vires capacity.
Note too the actual wording of the bedroom tax guidance in the A4 HB circular of 2012 which says at paragraph 12:
“It will be up to the landlord to accurately describe the property in line with the actual rent charged.”
Aside from the fact I was speaking to a board member a few weeks back in mid-Wales who said his organisations had 361 different rent levels (in line with the actual rent charged is meaningless and always has been) the guidance does NOT say it is up to the landlord to describe what a bedroom is or the number of bedrooms a property has. It merely states the landlord may accurately describe the property and a property is not the same as the number of bedrooms it holds. However all landlords could have taken the view not to provide any information, or more correctly data, as they were under no obligation whatsoever to provide any as the same official A4/2012 guidance 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. In some circumstances it may be necessary to contact a claimant directly for information about the number of bedrooms in their property. “
How the committee can state (and so definitively too) that it is up to the landlord is not only bemusing but is a legal fiction.
Landlords did not have to provide any information so how can it be up to them to define a bedroom is they didn’t have to define anything an did not have to submit anything?
The second emboldened part above is pure speculation from the committee yet it is written so definitively. It states that room size does not matter and room usage does not matter yet we have seen the courts throw out this position and opinion, for that is all it is, and rule that room size and room usage do matter. The opinion of this or any committee is and has to be less worthy than a court ruling even if it is only in the First Tier Tribunals.
The room size and usage issues are highly contentious and it is known that the DWP has intervened and is seeking permission to appeal the three judgments in Kirkcaldy which ruled room size does matter and is a pertinent consideration for the bedroom tax decisions. It is unsure whether DWP is also appealing the room usage issues evident in the Kirkcaldy judgments and in others such as Westminster.
What is a constituent part of a ‘bedroom’ has also widened with other FTT decisions, some good and some not so, yet has also seen a human rights challenge upheld to the other key variable of ‘housing need’ with a couple one of whom is severely disabled winning their appeal on the basis that they need a bedroom each as on medical grounds they have to sleep apart.
The definitive language thus used by the committee and its narrowing of what a bedroom is or can constitute down to just room size and room usage is misplaced. However, the real issue is the definitive nature of it is up to the landlord which has to be a legal fiction and something that public authorities cannot do by delegating or abrogating responsibility and powers to others. The ‘it is up to the landlord’ is a legal fiction. The fact that a landlord has a vested interest in saying a property has as many bedrooms as possible is a minor point by comparison!
Secondly, the report states some staggering statistics which deserve a much higher audience and awareness. There are 70 households looking to downsize for every 1 bedroom property available or 1.43% availability. This is a huge issue not just of itself but in comparison to UK wide thinking which has this downsizing issue at around 4% or three times easier in the rest of the UK to Wales. Conversely it is three times harder to downsize in Wales than in the rest of the UK and this flags up the local variables and factors in Wales more than anything. The report alludes to differences such as rurality which will play a part in this but fails to emphasise this much bigger point. When this is seen correctly in the context of Wales having 46% of working-age tenants affected by the bedroom tax, the highest in the UK, then this pragmatic issue takes on much higher significance.
Finally, I find paragraph 35 bemusing. After stating that Wales has 70 working-age households chasing each 1 bed smaller property the report recommends that financial incentives be given to pensioners, who are not affected by the bedroom tax, to downsize to smaller properties.
While this may ‘free up’ more larger properties what is the purpose in that when there is a surfeit of larger social properties being created by the bedroom tax for all social landlords. 3 beds and larger properties are becoming difficult to let properties for all social landlords with much evidence to support that across the UK.
Yet if you have a huge lack of supply the last thing you would want to do is increase demand which is perversely what this recommendation does. Not only will there be 70 working-age families competing for each 1 bed property in Wales there would be additional older persons also competing for that smaller 1 bed property.
It is also financially impractical for social landlords too. The older person who is exempt from the bedroom tax will get all of their social landlord rent covered in housing benefit and so the landlords is assured of that at the 3 bed or higher level. If the exempted older person downsizes then this creates greater financial risk to the landlord for whoever moves into this larger ‘freed-up’ property and of course they also receive less from the pensioner in a smaller property, unless of course that is a sheltered 1 bed property where the HB levels nationally can be double the HB level of a 3 bed house with garden (bizarre but true.)
The above are the 3 main issues in overview which I have concerns about. There are other concerns such as paragraph 50 stating there may be an appeal process against a discretionary housing payment. There is no appeal and a tenant can only ask the councils to look again at this, or a review. Simply the name tells you that as a DHP is a ‘discretionary’ fund and not a national welfare benefit and hence carries no right of appeal. I also wonder why the report did not include the Welsh Housing Quality Standard which has minimum room sizes as part of that, a curious omission and one that makes the definitive but errant nature of room size is not an issue the more surprising.
The report does make interesting reading however and is available here