Wirral Council and it’s councillors are incompetent and are and have been acting unlawfully when it comes to the bedroom tax.
That is a bold statement yet Wirral council confirm this by their own hand in a letter below and we can also add maladministration to my charges of incompetence and unlawfulness.
I have attached below a response sent by the Cabinet Member for Housing George Davies who is also the deputy leader of the Labour group who run the council. It was sent to South Wirral Campaign against the Bedroom Tax who have been engaged in a series of correspondence with the council to which I have been privy. They can be contacted on email@example.com or 07956 458 331 and when Wirral tenants read this I am sure they will be contacting them.
The main issue is that the council does not know the bedroom tax regulations and what they mean and that is germane to most councils and very specifically, the timidity Wirral show exposes their unlawful actions by their own hand.
A second issue is an interesting one which I will quickly deal with. Wirral claim in this letter that there are 620 fewer bedroom tax cases there since April and if that was replicated nationally then there would be 106,000 fewer households hit by the bedroom tax which would see the DWP (incredulous) claimed saving of £480m reduce by £77m. Yet this also means that Wirral admits it got a huge number of initial bedroom tax decisions wrong in the first place and they admit they know this too!
However back to the main issue and Wirral believe wrongly that it is up to the landlord to decide on the number of bedrooms for bedroom tax purposes. It is NOT and cannot be and the courts have also said this. Many councils also believe this legal fiction yet none have exposed that fiction in writing as much as Wirral do here. The letter says:
“The authority follows the guidance as set by the Department for Work and Pensions which is that it not the authority’s duty to decide what constitutes a bedroom for benefit purposes and it is up to each landlord to decide on that.”
- There has to be a duty, ie a mandatory action, in order to decide the bedroom tax decision. If there was no compulsion then local councils would not have to implement the bedroom tax policy. So far we are in full agreement but the duty is a key issue which Wirral just do not get.
- That duty lies with the council as it is the council who acts as the agent of the DWP in administering housing benefit regulations which the bedroom tax is part. Landlords do not operate as agents of the DWP and cannot do so as they are not a public body or authority. So it is legally impossible and a legal fiction to maintain the duty lies with the landlord.
- There cannot be in law a duty, a compulsion or mandatory action on a social landlord who is not a public authority such as a council. Hence the council maintaining landlords have a duty is a legal fiction.
What this brief overview says clearly is that Wirral council and its councillors have this legally wrong. Perhaps if Wirral and other councils use the latest correct title for housing associations which is PRIVATE registered providers (PRPs) then they would quickly realise that the ‘up to the landlord’ position is a legal fiction and has to be. In simple terms, how can a private organisation have a legal PUBLIC duty?
This adoption of this legal fiction – the ‘it-is-up-to-the-landlord’ vice – by councils is unfortunately endemic in local government. They need to read what the guidance says and this also proves the case. The HB circular A4 of 2012 is the guidance and again there is no dispute on that and at paragraph 12 it says:
We will not be defining what we mean by a bedroom in legislation and there is no definition of a minimum bedroom size set out in regulations. It will be up to the landlord to accurately describe the property in line with the actual rent charged.
What the DWP says is that it is up to the landlord to accurately describe the property and not that it is up to the landlord to say how many bedrooms a property has. That is two separate matters and a 3 bedroomed property can have just 2 bedrooms for example in the Janet Bell case I was involved in and reported.
Paragraph 12 of the guidance also says it is up to the landlord to accurately describe the property in line with the actual rent charged. That is and always has been a nonsense as in Wirral and any other area there will be (a) 50 different rents charged for each property size and (b) some 2 bed properties will have a higher rent level than some 3 bed properties and (c) DWP assumes in huge error that all landlords 1, 2 and 3 bed properties have the same rent level which they do not.
On an anecdotal basis a few weeks ago I spoke with a board member of a medium sized housing association, or PRP is you will, and he informed he had looked at this and they had 6 separate property sizes from bedsit up to 5 bedrooms yet had 261 different rent levels!! The same will apply across most if not all HAs / PRPs.
The phrase “…in line with the actual rent charged” has always been vague nonsense yet Wirral and other timid councils assume it means something when in fact it is meaningless and otiose.
Wirral should then also read paragraph 20 of the same bedroom tax guidance (A4 of 2012) which says after advising local councils to ask social landlords to describe the property that : –
“There is no obligation on landlords to reply to a request for information.”
How can a landlord be responsible, never mind have a legal duty to say how many bedrooms a property has if they are and were under no obligation whatsoever to provide any information to the councils in the bedroom tax decision?
Yet that question has never been asked of themselves by Wirral council!
Wirral council is incompetent and hiding behind this incompetence and legal fiction that it is ‘up to the landlord’ and it has to change this unlawful view.
What is the best course of action to correct this incompetence and timidity (cowardice?) by Wirral council becomes the question?
Should all of those affected which still numbers over 3000 households in Wirral all launch an individual case to the Local Government Ombudsman over maladministration by Wirral Council? Perhaps, and they have just cause and right to do so.
Or, or even and/or should all 3000+ households seek a judicial review of this decision which they have only been told about in terms of explanation in this letter dated 1st November 2013. I am sure local solicitors may wish to embark on a class action case against the council on the legal fiction of the position the council holds and just as sure that the South Wirral Campaign group could furnish them with plenty of names to do just that.
And.or should all 3000+ bedroom tax households launch an appeal against their bedroom tax decisions on the basis that the council has erred in law in making the decisions in the first place. They all have a legal right to do so and this new information could and should be argued as just cause why an appeal has been put in 7 months after the decision and the tribunal service should hear. So not only legitimate cause and grounds but also legitimate reasons for the lateness of the appeal.
We can also add to the legal fiction and sham of a decision-making process that Wirral undertook with many other justifiable reasons. In the celebrated Fife bedroom tax appeal cases in the FTT the judge, a QC no less and hence a much higher legal mind that ordinarily hears social security appeals at the FTTs said the landlords word is indicative but NOT determinative.
Again it cannot be ‘up to the landlord’ as Wirral maintain.
This has to be the case as the landlord cannot have a duty at all and so must be legally correct. Yet Wirral like all other councils, who all have their own in-house legal departments, are hanging on to this legal fiction and unlawful position. That has to change and be challenged.
Wirral could of course choose to simply accept the landlord’s word or not; which also assumes and is predicated upon the landlords providing information in the first place which they did not have to as the DWP guidance says in unambiguous terms at paragraph 20.
Yet in simply deciding to accept the word of the landlord in ALL cases as Wirral say they have done in the bedroom tax decisions means Wirral operated a blanket policy and fettered their discretion which is unlawful as well.
There are more instances in the letter to launch an appeal, a judicial review and maladministration cases. For example: –
“The authority has proactively reviewed cases and sought out additional information which has identified significantly an increase in households that are entitled to an additional room for a carer, disabled child, foster child or student. I am assured that work goes on in that regard to ensure that only those people who should have a deduction applied face that.”
The council do not see the irony in that statement as much as the unlawfulness in it. Here we see Wirral council ADMITTING that they got so many cases wrong in the first place by universally believing the word of the landlord! The council with deluded incredulity is now seeking to score ‘brownie points’ by saying aren’t we good look what we have done SINCE we made the original decisions! The reality is Wirral council is merely confirming that the original decisions they made were taken using a sham and unlawful process.
Let’s look at the language used here by Wirral council in just a tiny bit more detail and we expose just how incompetent and how unlawful they have been.
- Why has the council proactively reviewed cases? This is a tacit admittance that the council KNEW it had made wrong (and unlawful) decisions in the first place. It cannot be anything else!
- Why has Wirral council sought out additional information? This again is an admission that they knew they made the original decisions without having full and factual information. They are a public authority and are duty bound to do things lawfully and not as in this case impose a life changing benefit reduction on their most vulnerable citizens on a guess which is what they did. That is and always will be a national scandal as well as being unlawful and maladministration and rank incompetence.
- How about “I am assured that work goes on in that regard to ensure that only those people who should have a deduction applied face that?” If that is a not an admission by their own hand of their unlawfulness and incompetence then what is? Wirral council is admitting its original decisions were guesswork and determined using a legal fiction and it knows itself the original decisions are legally unreliable decisions!
There must and will be some legal minds out there who can find a way to get this outrageous situation into the courts and seek a decree of specific performance by Wirral council, or in lay terms the court orders Wirral to go back and do it again properly as they should have done in the first place. This is not limited to Wirral council as all councils conducted themselves in this same unlawful manner.
Such a court action would cost Wirral a fortune and is precisely why they and all other councils did not make the bedroom tax decisions correctly in the first place. A position was taken by all councils that it would cost too much to do this properly as they ARE duty and legally bound to do. Instead a position of sod that and let’s just shaft the most vulnerable was adopted and implemented with the bedroom tax imposition. Unprofessional language perhaps yet it explains the reality of what happened without any chance of that being misunderstood. Wirral’s actions were deeply shameful as well as being unlawful and incompetent and maladministration.
Wirral council could and should adopt a position that for bedroom tax purposes a ‘bedroom’ has to have at least 70 square feet of floor space as statute says in the 1985 Housing Act. Yet Wirral like other councils hide behind the excuse and lie that there is no legal definition of ‘bedroom’ and so they cannot do this but they can lawfully and without any sanction from central government as they errantly claim.
We can’t do this councils claim as there is no legal definition of ‘bedroom’ yet (a) minimum room size is in statute and (b) that statute is a definition of what cannot be a bedroom which amounts to the same thing.
Additionally the one issue that exposes the lie that Wirral and other councils could not rule this way is sheltered housing. There is no legal definition of “sheltered housing” yet Wirral and all other councils decide what is and is not “sheltered housing” and have done for decades. There is nothing in HB regulations either which defines “sheltered housing” and so it is clear that Wirral can do this – ruling that 70 square feet is a minimum constituent of the term ‘bedroom’ – by exercising judgment and discretion just as they always have done for “sheltered housing.”
Do Wirral get sanctioned or surcharged by central government of have their HB subsidy reduced when they make a decision of “sheltered” housing? No. Yet in this letter George Davies says they will and this again is another fiction or more simply something the timid council hides behind. The penultimate paragraph on page 2 reads:-
“I can assure you that I / all members of my group are acutely concerned….However the authority has an overriding duty and statutory duty to apply the legislation and abide by the guidance as there are potential and significant implications of financial penalty if an authority is viewed as not having made payment appropriately.”
Wirral like all councils should question the very hollow threat made by Lord Freud and which this concerns. Leeds City Council has had legal advice precisely to that effect so all councils could easily check this out and that is in the public domain and I reproduce below the article in Inside Housing:
A council has pledged to legally challenge the government over its stance on bedroom tax reclassifications.
Lord David Freud, welfare reform minister, last month wrote to councils to warn them against ‘inappropriately’ reclassifying properties as having fewer bedrooms so tenants avoid the coalition government’s bedroom tax. Lord Freud said councils found to have reclassified properties without reducing the rent charged would face a cut in their housing benefit subsidy.
Leeds Council has reclassified 837 homes as having one fewer bedroom each, but is refusing to reduce the rent. Peter Gruen, deputy leader of Leeds Council, said: ‘We have taken all the legal advice we have and what we are doing is perfectly legitimate.’
He said the council would legally challenge any decision to cut the council’s housing benefit subsidy.
In simple terms Leeds City Council have taken legal advice and called Lord Freud’s bluff and this exposes the hollow threat he made which Wirral here believe. Wirral can easily check the validity of this Lord Freud bull and bluster yet they merely accept his word in their timidity.
So we see Wirral continuing to act unlawfully in operating a sham process and they now throw up the white flag of cowardice in surrender to Lord Freud’s hollow threat which has no legal substance. Why has Wirral council not checked this out? In the meantime and while they drag their feet local residents are still impacted by the unlawful and disgraceful bedroom tax decisions councils made in the first place.
South Wirral Campaign against the Bedroom Tax has asked Wirral council to explain all of the above before in a professional way and to date privately, including to Graham Burgess as Chief Executive who simply regurgitated the incredulous CIH advice that the first Fife decision of Annie Harrower-Gray was all due to it being a 17th century property and this in turn comes after the original CIH advice which said that room size was definitively NOT an issue. Wirral also fails to see that CIH has backtracked from this and now advises that all bedrooms be measured for room size by councils!
The council and councillors in Wirral and across the country have fudged the bedroom tax issues and still refuse to see and reconsider the unlawfulness of their actions. It is time they did.
The Wirral Letter