EVERY BEDROOM TAX HB DECISION UNLAWFUL? YES THE PROOF IS HERE!

Dear All

Earlier this week I put up a post which was a standard letter doing the rounds to say if you have been in receipt of Housing Benefit continuously since before 1 January 1996 then you are exempt from the bedroom tax.  The letter and its logic was very plausible.

Now I can report it to be entirely 100% factual and so if you have been receiving HB continuously since 1 Jan 1996 then YOU ARE EXEMPT FROM THE BEDROOM TAX!

Below is a picture of a letter sent out by Exeter City Council on 17 December 2013 which clearly says this and reverses the decision to impose the bedroom tax for the above reasons.

What this also means is that any bedroom tax decision which failed to consider this aspect was a flawed decision because the council failed to consider this HB regulation as it should have done.  Every single bedroom tax decision made FAILED to consider this and so every single one of them is errant in law.

For those who have asked for a review or appealed to their council and the council will have received some standard and purportedly authoritative statement saying :

“Regulation A13 of the Housing Benefit Regulations 2006 states that the local authority must determine a maximum rent (social sector) in accordance with Regulation B13 where it has not determined, and is not required to determine, a maximum rent in accordance with Regulation 13 or 13C”

Such a statement sounds really unwieldly and definitive when local councils put this to paper and the tenant thinks they must be right.  BUT dear reader, never underestimate the incompetence of local government (and the DWP too!)

The bedroom tax regulations and especially the highly prescriptive guidance (A4/2012 HB circular) totally missed the regulation that states clearly that IF you have been in receipt of Housing Benefit since 1 Jan 1996 then you are exempt from the bedroom tax!  This is because in those circumstances the way your “eligible rent” is determined is protected by previous HB regulations and so you are exempt from the bedroom tax.

Here is the Exeter letter and read it then think just how pissed off IDS and the DWP is going to be when they read it and realise that they totally f**ked up with their A4/2012 HB circular which omitted this fact and omitted this regulation and steered local authorities down a blind alley with misdirection.

exeter

For those of you who want more technical data simply check the A4/2012 and the SI 3040 to see if this old reg was removed or amended and it was not.

Happy reading people and put a review request in to your council.

IDS and DWP – Have a happy Christmas knowing all of the 660,000 households you imposed this bedroom tax on now know for sure that you are an incompetent a***hole

QUICK UPDATE – 6.05pm

The regulations which says the above and shows it to be true is the SI 217 of 2006 – The Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations of 2006.

The link above is to these and a pdf file but go to pages 32 and 33 for the pre 1996 issue and also note that schedule 3 (4) (3) (b) (ii) states that a break of up to 4 weeks in the continuous period is allowed.

Also note that schedule 3 (5) (b) which states this applies to the “previous beneficiary” reads strongly by me to include a case where the current tenant was living in the property in 1996 and succeeded to that tenancy at a date after 1996.  To make that simpler if you were living with your parent(s) before 1996 and they were claiming HB and you succeeded to the tenancy from them after 1996 and have continuously received HB then you would also qualify for this exemption in my view.

FURTHER UPDATE

Those looking for a very in-depth discussion as to whether the above is correct will find this link useful – http://www.rightsnet.org.uk/forums/viewthread/5654/ – It may be difficult for a tenant to understand but for those of a sceptical nature and thinking this cant be right as I would have heard of it or know about it etc the discussion is particularly useful and supports my argument above.  I put this on here as the odd comment is out there saying the Exeter letter is a forgery  and presumably the same cynics believe Muslims get awarded a spare bedroom as a prayer room!!

Secondly, some legal comment has been received saying I should not say this is UNLAWFUL as I cannot state that term.  There is a huge semantic element in this as well as a ultra conservative aspect.  It is my opinion that all decisions in failing to consider this are deficient in law, which they are, yet some then say that does not mean they are ‘unlawful.’  I could comment, and correctly, that many of the same said I was wrong to say since before the bedroom tax began that room size could play a part.  Some very assertively if not aggressively said I was talking nonsense, and some disgracefully so such as the CIH.

Yet then the Fife decisions on room size emerged.  Opinion is opinion and we all have them and such opinions are always subjective UNTIL a court rules which they have in Fife and elsewhere subsequently.  Some of the naysayers still persist in their negativity by saying and correctly so that FTT decisions dont create a precedent.  That is true but they ARE a ruling of the court which then becomes the issue until another court decides otherwise and so opinion of whether room size or any other bedroom tax challenge will remain again become just opinion and nothing else.

I could say a lot more but wont, at least now and for some legitimate reasons.  What I will say is that above is my considered opinion and I have yet to see a counterargument against it and as such the pre 1996 HB receipt argument is a very powerful one that I am highly confident will see tenants made exempt from the bedroom tax.  Yet nobody is omniscient or THE expert on the many huge issues the pernicious bedroom tax throws up and nobody can be such is the huge ares this covers and the huge range of different issue that emerge because each tenant often has individual issues that could affect the decisions.

The ONLY thing we are all agreed upon is that the bedroom tax is a pernicious policy that is ill conceived and ill considered or more simply a back of a fag packet policy.  I have consistently stuck to a line that the decision making process is a sham and this argument again proves that and I have always said the bedroom tax decision making process provided EVERY tenant with legitimate grounds of appeal as to its procedure, or crudely how the decisions were made.  Again this issue proves that point.

Finally and with regard to this issue specifically, I have the balls to put my head above the parapet and my reputation at risk by making such issues widely available, while others often sneer at that.  I have a right to express my opinion which I maintain and to date has shown is a considered view and my opinions have mostly been upheld.  Even the cynics are entitled to their own opinion and that is right but rather than simply saying you dont believe it or say proceed with caution until experts such as X and Y (two well known national organisations) have verified it or the like remember two things.  Please if you criticise my opinion then do so constructively and say WHY you disagree and open up a debate not just you disagree; Secondly remeber X and Y (as well as A and B and C and more) all said room size would NOT and could not apply.

So in very simple and direct terms put up or shut up…and if anyone says again I am giving false hope to vulnerable people remember you are giving they absolutely bugger all hope and even stopping them from challenging this hated policy with your non-constructive criticism and overt negativity  – and challenging this is the tenants absolute right and costs bugger all – even less than bugger all hope.

As an added issue on that I gave a few bedroom tax appeal workshops in the past month and was told afterward by two frontline ‘welfare officers’ from housing association welfare teams that they did not even know the bedroom tax was appealable!! With that level of supposed help and with welfare advice services strained to the hilt and closing by the day and the removal of legal aid the last thing shafted tenants need is non constructive criticism and overt negativity from the naysayers.  Even if I may get some things wrong, which I very carefully seek to avoid – and in this particular issue I am very confident of being correct, I try…and that I know is appreciated by tenants who are having to make life changing decisions with next to bugger all help out there.  I wish the naysayers would have the balls to look a shafted tenant in the eye and say it is not right yet I doubt they ever would.

If you think this is a rant just say to my face you think I am giving false hope to tenants!

I trust that rant makes my position perfectly clear

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69 thoughts on “EVERY BEDROOM TAX HB DECISION UNLAWFUL? YES THE PROOF IS HERE!

  1. I’m sure I speak for everyone when I offer a HUGE, massive *thanks* for this Joe, you are a star!
    same question as Ian,moved here in 1998 but on HB since 1995, also, do you have to be on full HB, would partial HB still qualify?

  2. Thank you for this, but is the headline not a little misleading?
    You state that it applies to ALL 660,000, but surely those that have had continual Tenancies ‘and’ Housing Benefit would only be a small percentage of the 660,000?
    The other thing, is that if all this is so, then it actually ‘favours’ those that have had continuous HB over those that have worked some or most of that time and not had continuous Benefits.
    Which of course is more in the mud in the eye for IDS, Freud and the DWP.

    1. The principle is that the Council have to *consider* whether HB has been in continuous payment since 1996. If they didn’t do that, and say so in their written decision, then that decision is unlawful and void. Since the vast majority of Councils didn’t consider that provision, their decisions to apply the bedroom tax are unlawful and void.

    2. My comment above was written before your update Joe. Thank you for that update and clarifying further. Sorry to hear that you are getting attacked. Such a shame, when all you have done is tried to help.
      It is all so complicated. Perhaps as Debbie suggests a ‘Template Letter’ in order for people to tweak would be useful?
      I very much hope this will be the straw that breaks the Camel’s back!!

      Have a wonderful Christmas and here’s to a great 2014.

  3. how do you find out if this is true, because i am secure tenant and have fair rent accessed every two years and have been on housing benifit since before that date, but still get charged BT,CT?

  4. Dear Mr. Joe Halewood,
    I am a massive fan of yours and have been following you for some time now. I’m about to approach my Council (Basildon Borough Council,Essex) as I live in a 3bedroom council house, have been in receipt of incapacity benefit and I have lost 25% for having 2 spare bedrooms.This rule would 100% apply to me. My question is this …Can I expect a full refund from the council for the rent that I have paid since this bedroom tax was introduced in April❓Who owes me the refund..D.W.P. or the Council , . Are they one of the same , don’t want them trying to wriggly out of this one. I have had many a battle with my council over many things that I perceive to be wrong and I have always won, don’t want to loose this battle so I need to be informed.
    Thanks for taking the time to care about whats going on , and I would like to wish you a very Merry Xmas
    BARBARA MURRAY68 PAXFORDSLAINDONESSEXSS15 6SQ👼

    Date: Sat, 21 Dec 2013 11:36:18 +0000
    To: jjhferm@hotmail.co.uk

  5. great news Joe, this means i will now be exempt from the bedroom tax.

    Merry Xmas Joe i could not of asked for a better present than this info.

  6. What you will find is the councils saying any refunds is down to their discretion they told a friend of mine that when they taxed her for a room that she should not have been taxed for.
    What people need to en mass is stop complying with this corrupt system. If everyone stops paying council tax there is nothing they can do about it. Legislation is not Law they are the rules and regulations that oil the wheels of society. You have the right to withdraw your consent from any legislation at any time. I have I informed my council I no longer consent to legislation pertaining to council tax.

  7. Hello Joe, if what you say is ‘true’ then it’s the best Christmas present I have ever received in my whole 59 years of life. I have continuously been receiving HB since 1989, so that means then (according to you) I am TOTALLY EXEMPT of the Bedroom Tax ? I’ll definitely be checking this out with the local benefit section on Monday.

  8. While failure to consider this may well mean every bedroom tax was lacking in thoroughness, sadly it does not make each one void.

    The decision stands unless appealed. On appeal, the Tribunal will not merely overturn the decision but will replace it with the decision that should have been made, using its inquisitorial function. Where the bedroom tax was correctly applied, this will stil be the outcome, notwithstanding any lack flaw in the initial decision making process.

  9. Two quick responses to the many above. If the council agrees to this when they reconsider or if a judge decides this at tribunal then you will get a backpayment of the bedroom tax that has been deducted. The second issue is that there was a very in-depth discussion of the issues involved in this (ie is this correct etc) at the link below. Many tenants may find it difficult to follow but those searching for a very thorough debate on the issue will find it useful – the link is – http://www.rightsnet.org.uk/forums/viewthread/5654/

  10. This is b****** t. Ask yourselves where this came from. The government put the bedroom tax in place which means they put this in place. Illuminate stirring up trouble trying to start a war so people are killed off and then david (hitler) cameron will save a lot of money.

  11. Hi Joe, Just want to say, thank you. For putting this ‘out there’. Am sure it is going to help many more people become exempt.
    Any chance at all, of doing a template letter for us please? Or, do we just send these relevant regs to our councils??

  12. Yet again great work on speye with this 21st century version of the poll tax, I am still being messed around by my local council and they continue to use delaying tactics in sending my case to tribunal over my box room tax. Unfortunately I am not able to use this latest means as I was working up till 2007 when I became too ill to work. I just hope this helps others in their fight against this unjustified tax to give the likes of IDS 100k tax break every year…

  13. Ive been on HB since 1992 but I had to reapply in 1997 – and again in 2002 when I moved here. I wonder what they define as “continuously”? As you say – legal semantics – they still have space for ‘wriggle room’ me thinks?

    1. Paul – Now you DONT have to pay bedroom tax if you have been in same property since 1/1/96 or before and you have been in continuous receipt of HB of even a penny per week.

      If you need any more on this drop me an email to Reclaim a voluntary organisation I work with who set up in February 2013 to deal with bedroom tax and other welfare reform cases and their email address is thereclaimgroup@aol.co.uk

  14. 3 commons votes since April on Bedroom Tax and High Court sittings in May and End of July and all tha while 41,000 households needlessly paying tha Bedroom Tax.Nothin about this 1996 regulation in ANY of these deliberations (not exactly a ancient magna carta regulation) I don’t know if Stephanie Bottrill was one of those exemptions

    1. Dear Sir

      I ask you to reconsider my bedroom tax decision in your HB decision notice dated DD/MM/YYYY in accordance with HB regulations and with regard to statutory instrument 217 of 2006 in terms of my protected “eligible rent” the Consequential Provisions Regulations 2006 holds as I maintain I have been in continuous receipt of Housing Benefit since at least the 1 January 1996 and have have lived at my current address in all that time.

      Yours etc

  15. Hey Joe
    It seems to me that a lot of people need it clearing up as to whether it applies if they have been in receipt of HB pre 1996, but haven’t stayed at the same address. Can anyone shed light on this please???

  16. Joe re the Naysayers just remember that a uniformed opinion is a worthless opinion!
    Some just give a opinion based on their own prejudice or conditioned beliefs. again worthless. Hopefully they will get bored and bugger off and annoy someone else.

  17. hi i will shed some light on this for u all!! if u have been in reciept of continuous housing benefit since 1st january 96 with a break of NO MORE THAN 4 WEEKS u are exempt from the bedroom tax!! now heres the kicker!! you have to proove u have been in reciept of said benefit, housing benefit records only go bk 6 YRS, SO IF U HAVENT KEPT UP WITH UR PAPERWORK AND U CANT PROVE IT, U WILL HAVE TO PAY!! HOPE THIS HELPS. GOOD LUCK TO U ALL!! XX

  18. Tracey Fitzgerald, regarding the 6years that Councils keep their records for. Most people would be paying for it via direct debit, so they could contact their banks and ask for statements from them for that period, which the banks keep for 7 years.

    Hope this helps people that did pay that way find the proof.

    Also do not quote me but I think the Council’s keep records a lot longer in their archives. The 6 years might be what is kept on their computer system. They keep paper archives of everything else. Freedom of information act comes to mind with regard to their own information that councils keep. (will see if i can find this out)

  19. Reblogged this on rockchick35 and commented:
    Add ygetting housing benefit way befor 1996 i have a 19 year old son a 15 year old and a son who be 14 next month i get less than 5k a year its not fair because there are more than 660,000 in the world not just UK i dont think it should apply if other countries dont apply to diffrent countries i say get rid of bedroom tax what they gonna bring up next its a struggle as it is our thoughts here… (optional)

  20. I received this information from Crawley Borough Council, what do you think?

    Dear Ms Simmons

    I have contacted the Housing Benefit department on your behalf, please see below for their response.

    On 08/01/14 we received an urgent circular from the Department of Work and Pensions (DWP) stating that the removal of the spare room subsidy (often referred to as “bedroom tax”) should not apply to:

    · Those who have been continuously in receipt of Housing Benefit since at least 1 January 1996 (allowing for a 4 week break) AND

    · Occupied the same dwelling since that date (unless was uninhabitable).

    We are currently trying to identify any such tenants through reporting from our system and will contact them as appropriate. The claim will be reassessed and any arrears of Housing Benefit passed directly to their rent account.

    DWP will be amending the legislation as this is an unforeseen consequence and they intend to correct the position so that all working age tenants are covered, apart from the existing exceptions.

    I hope that this answers your query. If you have any further questions please direct them to the Housing Benefit department who are best placed to answer them.

    Kind regards

    Fay Power
    Financial Inclusion Officer
    Crawley Homes
    Tel: 01293 438223
    Mobile: 07581200633
    Fay.Power@crawley.gov.uk

  21. wilf ……..so what happens the people who have worked most of there lives and have just lost there jobs through goverment cut backs to councils im on £71 40 a week out of that i pay £11 57 a week in bedroom tax i offered to down siize but my housing department has no one bedroom places available why do people like me get no help at all but still have to pay the bedroom tax

  22. The legislation on the size is contestable. A bedroom has to be a certain size as length and width. It means some landlords will make two rooms into one to let as some are now short of private tenants and now putting in flats in houses to get more rent. But measure the box room and see if it is the mandatory size or you do not have to pay it.

  23. I saw your article and got in touch with my council as its so unfair not only have we lived here since 1981 and been on benefits as my husband and my son are both disabled, we finally received a letter on the 5/2/14 to say that we were exempt from the bedroom tax and they would pay us back what we paid hooray. Then yesterday the 26th Feb we received another letter saying as from the 3rd March we have to start paying it again as the government has amended the legislation, surely this isn’t fair. can anybody help

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