Bedroom Tax – the pre 1996 issue explained

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.)

HOWEVER

  • 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 thereclaimgroup@aol.com 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.

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46 thoughts on “Bedroom Tax – the pre 1996 issue explained

  1. Does anyone hold national figures for exceptions (of all types yet) the reason I ask is this is and undoubtably would be the single most useful stat to band about whilst equally if not more so being the ultimately most Important piece of data shared IF we are to rally troops, IF we are to allay false, misleading info and appeals which are ONLY serving to slow the system down more to those who do have the ability to claim on any excemption basis and gain a successful claim, thus where are these figures and how can they safely be gained I appriciate your x your 5% figure but that’s a speculative 100k out of the 420k that’s now suggested to be over 600k in tenants affected by BT your suggesting 1/6 will be affected? ( I reckon far fewer but time shall tell) as 17yrs + is a LONG time to remain at one address nowadays – I sincerely hope your right and AM NOT challenging nor disagreeing with you merely questioning it and seeking further absolutely verifiable figures not speculative ones – Keeping up the fight – Wins the battle

    Bedroom Tax Chat Group (the first and longest standing on FB, still helping tenants today as we were almost three years ago now, with MANY happy tenants having made the right decisions having gotten the correct advice) https://www.facebook.com/groups/btukhomeswapnetwork/

    1. I said with reasoning in the original post that 100,000 men women and children could be affected and based on 2.4 per household this means 40k households and not 100,000 households. There is no doubt every individual is affected in a bedroom tax household.
      Some misread the 100k to be 100k households and not 1 in 6 as some have misconstrued.

      I agree too often 2 + 2 makes 5 given the emotions that run high with the bedroom tax yet I still maintain around 40k households with circa 100k persons affected is far fro being over the top and may well be an underestimate.

      I presume your 420k figure is the number of households with a disabled person – the 660k figure is the original DWP estimate of the number of households affected

      1. Hi after reading your blog about the bedroom tax as we have lived in this property since September 1981 and been on benefits since then as well as my husband and my son are disabled I got in touch with our local council on the 15/1/14. I finally received a letter on the 5/2/14 to say that we had been exempt from paying the bedroom tax and we would be getting the money we paid back, we were elated.
        Then this morning 26/2/14 we received another letter to say that as from the 3/3/14 we have got to start paying the bedroom tax again as the government have amended the legislation do you know if this is correct it seems so unfair that with in a month they can change their minds

  2. “…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.”

    Joe I beg to differ with those rose tinted comments you made about the proactive cooperation of landlords with working with appeal groups, they are still out there some landlords who don’t take bedroom tax groups seriously let alone work with them with total and trusting cooperation.

    1. Chris I dont disagree with that. I said they are slowly but finally coming around to that position. Some landlords need a little nudge and as for others rearrange poker hot and red

  3. Well true Joe, am going to say something provocative now that might anger a few people in the social housing sector.

    Landlords have encouraged rent arrears by simply failing to inform tenants to there right of appeal! Informing tenants to pay arrears with other sources of income while avoiding to inform about the right to appeal HB was & is a total waste of time and money on the part of RSLs.

  4. OK, just to confirm,
    I have been in receipt of HB since Sept.1994, the housing association decided to re-build all the houses in my road in 1999/2000 so I had to be rehoused while this was done, when I moved back I kept the same house number so if I have read this right I should be except from HB is this correct

    1. I would argue yes but very strictly the regulations state a forced move caused ONLY by a force majeure event (fire, flood or other Act of God) rendering the original property uninhabitable and NOT for any other reason.

      Yet that cannot have been the intention of the regulations and if you the tenant have been compelled to move for improvement works you still have been compelled to move and so I would still send letter to council asking to reconsider and if not you will need to launch an appeal which I consider to have a strong chance of success

  5. Just one small technical point about inheriting protection from a previous beneficiary: if that person was the current claimant’s partner it doesn’t matter whether the previous beneficiary has died or moved out. However, if the previous beneficiary was a relative (not a partner) it appears the protection can only be passed on after death.

    I find it very hard to predict how many people will be protected by this. I would imagine that long standing tenants and their successors are overwhelmingly in the social sector, so if Exeter’s 4-5% of caseload estimate means 4-5% of all HB claims (including private tenants) that presumably equates to a bigger percentage of social sector claims. But if it was 4-5% of bedroom tax cases (which I feel intuitively is probably more like it), the numbers are not so great. Any clarifiction on that Joe – 4-5% of exactly what in Exeter?

      1. name the benefit office and I will gladly prove to them the error of their ways!! And I hope you contacted them in writing and NOT by phone so they could answer you verbally and then later on say I dont recall that conversation!!

      2. There is and Liverpool have this wrong. The U1/2014 circular pars 5 “Note: it may be the case that the transitional protection has been inherited by a claimant and if so they should be treated the same” Rectum and humerus abound in LDL the contractors who administer HB at Liverpool

  6. I am part of a McKenzie Friend scheme in Manchester, but this question refers to my own personal situation rather than a client.

    I have been contiuously on HB since 1995. BUT in 1998 I was moved, against my will, so that the council could sell my previous flat to the NHS for nurses accomodation. I was rehoused and compensated for having to move.

    I’m going to go fo it on this one, and wondered if you could give me any tips to enhance the arguments about it being a move not within my control?

  7. @Chris

    We acted on behalf of a tenant who had been given incomplete advice by her landlord, so had accrued about £2k arrears (only about £400 due to bed tax). She was facing immediate eviction when she approached us. Normally we would have eferred the case to a solicitor but we could not find one able to act at short notice so we submited the forms to ask for an eviction to be suspended and turned up two hours before the eviction was due to ac as McKenzie Friends.

    We submitted a counterclaim that the landlord has not duty to advise at all, but when they do give any advice whatsoever they are then obliged to do so diligently. We counterclaimed arrears equal to the financial loss, which just happened to equal the shortfall in rent, which just happened to equal the entire arrears.

    We asked for an ADJOURNMENT, in order to give the tenant time to instruct a solicitor.

    The landlord withdrew the attempt to evict at 10am on the day when the bailiffs were due to arrive at 11am in order to prevent the case coming to court. Methinks they were worried by the argument and did not want the case to come back on that basis.

    So, where you feel landlords have been witholding good advice, don’t feel grumpy about it – take a oood look and see if they have given any advice at all – if so they may well have shot themselves in the head.

  8. @Manchester McKenzie

    Great to hear that!
    From solicitors and barristers my bedroom tax group have talked to; counterclaiming against procession claims will play a big role.

    Those most effective counterclaims would be in area of disrepairs: current outsanding disrepair and historical disrepair with in the last six years. Personal injury might come into play as well.

  9. I’ve just informed the High Court Appeal legal team about this, and that thousands will be still paying when they shouldn’t, even under thios legislation. I also sent evidence about David Camerons untruths about the disabled being exempt from the Bedroom Tax

  10. i think this is a load of rubbish. as the local council are aware of the loop hole and are also aware that the government are going to change the ruling. so it will apply.. so even if the councils records do go back as far as 1st january 1996 .
    as im aware its down to you to prove it not the council .As they will not want to pay the money back. so unles you your self have got records going back that far its a waste of time .only going on experiance .

  11. Paul apparently the LAs MUST retain all files pertaining to any claim as do JC don’t let them tell you otherwise it’s possibly stored in a dusty cupboard or basement possibly stored in secure document storage somewhere as all are on computer systems now which I believe do only go so far back which is maybe where they only keep records for two years is coming from it’s MOST certainly NOT up to the tenant to prove how long they have had HB paid for a social house simple as that it’s up to the LA to disprove it if you like 🙂 which equally can’t as far as they are concerned be proven or disproven 🙂

    https//:www.facebook.com/groups/btukhomeswapnetwork

    1. Hi Dougie i hear what you are saying but im in peterborough. The council there have told me that they are aware . there filles do go back as far as 1996 but its not up to them to proove. iv been told this by 3 members of there staff. so i no im not the only one when i say we have no hope of getting any money back .As they no the ruling will be changed so we will have to pay anyway.

    1. @Dougie

      could you also post that somewhere visible without being on FB please? Or maybe it is possible to change the permisssions of that FB page?

      At the moment it is only visible to those who have signed their face away to Mark Zuckerman

    1. @Pam

      is this a FB-only group?

      If not, how can someone join without using FB?

      If you are currently FB only, I’d encourage you to think about the accessibility issues: there are far more people with browsers than there are FB members. FB is a great way of reaching many people, but (imo) is better used for outreach than for the only communication method

      Just a thought

      River~~

      1. Hi, paul nicholls. I am also a member of the facebook group, that Pam has put the link on for……. We have had many people win their appeals. For a variety of reasons.. And some also, on the PRE 1996 issue are slowly starting to win. One of our members was made exempt within 48 hours and is due to get back the £400 she paid in. Obviously, councils are going to be overloaded with work, from now on!!
        So, anyone, that wants help. Please join our group.

  12. Paul – many have gained exemptions, for a variety of reasons. A member has already had refund on pre 1996 issue, and quite a few have had confirmation of exemptions and are awaiting their refunds. Lots more appeals being lodged now on the latest ‘room use’ issue..

  13. I’m so glad I finally posted something of use 🙂 anyway now seriously
    Anyone apart from possibly me? think that LAs could be stalling? awaiting the closing of the “loophole” that some also seem to believe won’t happen as it’s not a loophole to start with, it’s part of a far wider reaching act of parliament thus will take time to “reinvent” to now not include the all important paragraphs
    Undoubtedly more are gaining excemption now than at the start BUT it’s not clear how many still? I reckon the figures are still relatively low against the totals affected in the region of at best 1% (I have NO proof of this either way it’s only for illustration) as someone above asked for similar information prior to joining their group (fair enough question I reckon) and got a standard reply, basically they don’t know (find that strange as I can tell all give or take how many folk we have assisted in whatever action they deemed best for them, through 30+ local Homeswap groups, benefit groups, Bedroom Tax group, and a few others) is maybe this one of the biggest stumbling blocks stopping others trying to gain an all important excemption the fact that they think it’s pointless?
    Where as if a central source of verifiable figures was made available it would show the all over success of these different exceptions and groups and make I am confident many many many more at least try, at the least it may make ONLY the most obvious winners try which simply CAN’T be a bad thing possibly unclogging systems bogged down by those trying to claim with absolutely NO hope of winning.

    Just a thought that may be worth considering by the large groups if not all groups concerned.
    https://www.facebook.com/groups/btukhomeswapnetwork

  14. I find it almost unbelievable that there are people in this country that claim benefits (of any kind) for 17+ years continually.
    If someone HAS been claiming housing benefit for that length of time, how can they expect a refund of something they have never paid, surely it is the tax payer who should get any refund being that it was the tax payer who funded the benefit initially?
    No wonder the country is in such a state and it isn’t any wonder that the government is set on reform of the benefit system.
    After reading this thread I am fully behind the government.

    1. The exemption is for those claiming ‘housing benefit’ – don’t you realise 3/4 of people claiming this are IN WORK – but on such low wage they HAVE TO claim this or be out on the street!!!

  15. I would have been fine with that rule – Had I not had to move due to the fact I became disabled and couldn’t get up the stairs so they put me in this bungalow. In 2005. Gutted is an understatement that now I will soon have to pay BT on two rooms when both my sons leave home. Which is to happen as one leaves in probably a fortnight. Then I will be attacked by this BT until the second one goes and then I will somehow have to pay about £40 a week.

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