There has been great interest in this and some confusion so hopefully what follows clarifies the pre 1996 position with regard to the bedroom tax.
1. The basic 2 conditions
If you have (a) lived in the same property since 1 January 1996 or before AND (b) have been in receipt of housing benefit (full or just 1p per week) then meeting these two conditions means you are exempt from the bedroom tax being applied.
This is due to the Consequential Provision Regulations 2006 (CPR2006) which also holds a few variations on the above basic 2 conditions.
2) Inherited the tenancy from your partner?
IF for example your partner was the tenant and they left or died and you succeeded to the tenancy after 1996 then you inherit the same protection from them as they are called the “previous beneficiary.”
NOTE WELL this only applies if they met the basic 2 conditions and you have been in continuous receipt of HB since you succeeded to the tenancy
3) Inherited the tenancy from your parents?
If you lived at the property on 1/1/96 and say your parent or parents died and you succeeded to the tenancy after 1996 then you also can be exempt if your parents met the basic 2 conditions and you have been in continuous receipt of housing benefit since you succeeded to the tenancy
4) If any of the above apply but you have had a single break in the continuous HB receipt of less than 4 weeks.
5) If you met the continuous receipt of HB but have been force to move because the original property became uninhabitable due to a force majeure (Act of God) event such as fire, flood, lightning, avalanche etc.
Those 5 categories appear to me to be the 5 cases the regulations state and note well all are based on the same two conditions namely the continuous receipt of HB since 1 January 1996 AND being in the same property (with force majeure exceptions.)
- If the original property becomes uninhabitable for another reason for example it is part of a demolition then the tenant has still been ‘forced’ to move and the move is outside of the tenants control.
- If the original tenancy is subject to an improvement order and the tenant has been decanted to another property while works are carried out to the original property
- Also if the tenant has been forced to move to flee domestic violence the issue is a forced move beyond the tenants control.
In cases like the three above although the regulations do not cover such incidents I would suggest a very strong argument can be made that the tribunals would have to consider. The intention of the regulation could not have been a forced move ONLY because of fire or flood and must have been to cover demolition or improvement which renders the original property uninhabitable and could not possibly have intended to penalise DV victims from having to flee. I can also see on the DV arguments more than one move being possible if for example the tenant was forced to move two or more times due to domestic violence and abuse
Of course the same conditionality with continuous receipt of HB still needs to apply in all cases. Also the tenant has nothing to lose in appealing on these grounds
I was asked yesterday as to whether a mutual exchange would be covered by this as when a MX occurs the tenancy conditions stay the same. I am not convinced this is a strong argument. A mutual exchange by definition is something that is taken out willingly and is not a forced circumstance such as the force majeure or DV arguments above.
Practical issues for tenants
A simple letter to your local council stating you maintain you have been in receipt of HB continuously such as the one I drafted here should suffice. If the council fails to reconsider or do a late review then you can appeal.
HOWEVER a number of problems arise for the local council in this.
Firstly, do their record systems go back that far? While this is not an issue for the tenant as the council has to investigate and the onus is on them not the tenant then a delay will often be inevitable.
Secondly, I have spoken with councils about pre-1996 tenants I am aware of and unlike Exeter City Council who did the correct thing very quickly and exempted the tenant other councils are very reticent. They are (a) informing their own legal departments of this as to what to do and (b) asking the DWP what they should do. While they receive responses they are doing nothing and that is reprehensible as well as being de facto maladministration in my opinion.
Councils are worried that if they do back pay the bedroom tax deducted then DWP will not repay them these monies. Frankly tough!! Local councils have made a mistake in applying the bedroom tax and they HAVE to follow the HB regulations and apply the correct decision. Just because they have been misdirected by DWP and they fear the DWP will not pay them the HB subsidy for this has got absolutely nothing to do with the tenant or the law. They simply have to pay.
Additionally, even if the councils current IT systems and their previous ones (legacy systems) do not go back to 1996 or before that changes nothing of fact or of law. They still have to pay as that is the rule and they cannot escape that.
How widespread is this pre-1996 issue?
A local voluntary group I attend ReClaim put out a post here which outlined the maladministration of the DWP in misdirecting local councils and asked tenants to email them at firstname.lastname@example.org with just their initials and postcode so as to see the scale of the problem. I have seen the early results and tenants from all parts of the country are affected by this. The purpose of this is due to a parliamentary ombudsman case has two steps with firstly lodging a maladministration complaint directly to DWP and then asking your local MP to launch such a complaint hence the need for the post code which identifies the relevant MP who is copied into the original letter. Having a number of Labour and other opposition MPs knowing of this issue will cause huge political embarrassment to the government and ensure the DWP does not easily change the legislation or close the ‘loophole’ as some see this.
Secondly a councillor from Exeter Paul Bull asked the officers there what percentage of all HB cases this applied to and got the response of 4 – 5%. I extrapolated this here to suggest this could be 100,000 men women and children who have wrongly had the bedroom tax deduction imposed. While that has to be speculative it is a reasonable estimate for the reasons given.
Practical issues for landlords
Social landlords have begun to trawl their records to see how many of their tenants could be exempt. Even if they have changed their rent systems software since 1996 which is highly likely they will still have the tenancy start date and also details of whether there has been a succession on the tenancy. I doubt their current IT systems will be able to quickly reveal continuous receipt of HB yet they should have paper records perhaps archived that will be able to ascertain whether this is the case. Yes a lot of admin work for them but very much worth it and in speaking with some staff now involved in this over the last few days they have my sympathies for this work they are doing but they all confirm they want and need to do this which is very encouraging.
It also makes strong financial sense. Some landlords have 3000 or tenants affected by the bedroom tax so if 5% of them are exempt this makes 150 or so tenants and each of whom have had the £730 or so average yearly bedroom tax deduction imposed wrongly and that equates to about £110,000 in a full year and that risk to arrears is taken away. Stock transferred former council housing landlords especially will benefit from this investigation.
Significantly, the same landlords will be able to publicise this good news which is needed given that the bedroom tax creates a distinct tension in the landlord tenant relationship and landlords need to win back the goodwill of tenants ahead of the (eventual) implementation of direct payment of HB to tenants and not themselves as is the case now. Reclaim and other voluntary groups I know are being approached by landlords now asking if they will help their tenants which is a significant departure from previously when landlords saw appeal groups as meddlesome but not significant. Landlords have finally come around to seeing the mutual benefit that appealing holds and not before time.
Finally, this loophole or let’s say what it is, cock-up by the DWP and local councils is just another battle won in the bedroom tax war. Coming on top of numerous appeal wins at the first tier tribunals on a wide range of grounds such as room size, room usage, widening of ‘housing need’ etc the war on the bedroom tax is being won and weekly new appeal successes are announced. With so many cases still to reach tribunals and with the new 2014/15 bedroom tax decisions due in two months time ever more battles will be won. Tenants who this year have seen other tenants win on easily understandable issues such as room size will be encouraged by that and appeal in much greater numbers. Landlords who now finally see the benefit of tenants appealing are starting to fund such groups and focus more of their staffing on helping tenants to appeal will also see more challenges emerge to this pernicious and ill-considered policy.
And lets not forget the pre 1996 issue gives opposition MPs a huge political coup against the credibility of the coalitions bedroom tax and wider welfare reform policy. That will ensure the bedroom tax stays in the mainstream news and raise even greater awareness amongst the general public that is was a back of fag packet policy all along.
2014 is looking much more hopeful in the fight against the bedroom tax for all the above reasons.