Is every bedroom tax decision unlawful?

I put out a post a few weeks back that said all bedroom tax decisions were ‘unlawful’ and the use of that word saw many legal professionals take offence at that term.

You can’t say that was the tenor of their response and authorities don’t have to consider something that is not relevant was a common response when commentators assumed, wrongly, that I was referring just to the pre 1996 exempt issue.

I wasn’t referring to that issue but to the law and what the law says constitutes a ‘bedroom.’

Straightaway that is a dangerous line to take as what does constitute a ‘bedroom’ in law is hugely contentious, or is it?

So much of the bedroom tax debate has focused and in my view wrongly on room size and whether the 1985 and 2004 Housing Acts do define and this can be imported into HB decisions.  So much of the early debates focused on the bedroom tax guidance in the HB circular A4 of 2012 and especially on the wording of paragraph 12 which says the DWP will not be defining (that is future tense) what they mean by a bedroom in legislation and then in the same sentence went on to say there is not definition of room size in regulation. 

Legislation and regulation are two very separate things yet this was invariably overlooked and conjoined to be interpreted by local councils as there is no definition of a bedroom in law and hence we don’t have to decide what a bedroom is.

That I maintain is a false argument and one not supported by what law says as I begin to explain in this post.

The local council argument for their sham decision making process in the bedroom tax has now moved on to be a bedroom has its ordinary meaning in language which again I maintain is a falsehood and a dangerous line for LAs to adopt in defence of their sham decisions.

For example if you adopt an ordinary language interpretation (which I shall argue below ignores what the law says in any case) of the term ‘bedroom’ then you must also adopt the ordinary language of the terms consider and confirm.  The bedroom tax guidance and statutory instrument both say a council must consider whether a claimant has too many bedrooms in the dwelling and to consider or to come to a considered decision means councils have to take into account a range of factors and not simply just accept the landlords word.

The A4 guidance also says on no less than 14 occasions that the council must confirm information (and more correctly data which only becomes information when processed) before they come to a (considered) bedroom tax decision.

Councils have taken the view that if a room can be used as a bedroom then it is a bedroom.  Yet just because a room could be used as a sleeping accommodation does not mean, in law, that it is a bedroom and has to be considered as a bedroom for bedroom tax purposes.

Just because a room could be a bedroom doesn’t mean it is a bedroom in law.

Room usage is an issue which has taken a back seat to room size in the bedroom tax debate and appeals.  Yet it is for me a stronger argument than room size in the what is a bedroom argument.  I suspect many more appeals on room usage to be made and be successful this year for reasons I now explain.  Room usage is also one area when looked at casts strong doubt on the lawfulness of all bedroom tax decisions and it is just one of many areas that do cast doubt on the lawfulness of every bedroom tax decision taken with undue haste and a lack of consideration by all councils.

I began seriously to investigate the bedroom tax decisions on 20 January 2013 – a year ago – and asked two simple questions namely what IS a bedroom and how many bedrooms does each PROPERTY have?  I emphasise both points for good reason and especially the word ‘property.’  This came from the bedroom tax guidance the DWP issued to local councils in the HB circular A4 of 2012.  It reads at paragraph 12 –

Bedroom size

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.

I stress the word ‘property’ as that is the term used throughout the A4/2012.  However the statutory instrument which enacted the bedroom tax, SI 3040, does not use the word property and instead uses the term “dwelling.”  This is very significant and is not just a case of semantics.  Here is what the SI 3040 says: –

Determination of a maximum rent (social sector)

B13.—(1) The maximum rent (social sector) is determined in accordance with paragraphs (2) to (4).

(2) The relevant authority must determine a limited rent by—

(a) determining the amount that the claimant’s eligible rent would be in accordance

with regulation 12B(2) without applying regulation 12B(4) and (6);

(b) where the number of bedrooms in the dwelling exceeds the number of bedrooms to which the claimant is entitled in accordance with paragraph (5), reducing that

amount by the appropriate percentage set out in paragraph (3); and

(c) where more than one person is liable to make payments in respect of the dwelling,

apportioning the amount determined in accordance with sub-paragraphs (a) and (b)

between each such person having regard to all the circumstances, in particular, the

number of such persons and the proportion of rent paid by each person.

(3) The appropriate percentage is—

(a) 14% where the number of bedrooms in the dwelling exceeds by one the number of

bedrooms to which the claimant is entitled; and

(b) 25% where the number of bedrooms in the dwelling exceeds by two or more the number of bedrooms to which the claimant is entitled”

Note well the repeated use of the term ‘dwelling’ in the SI 3040 which enacts the bedroom tax as opposed to the term ‘property’ used in the bedroom tax guidance of the A4/2012.

“Dwelling” is NOT just an old-fashioned name for ‘property.’  This is not semantics.

A “dwelling” is singular and there can be more than one dwelling in a property (as the SI includes too.)

Far more significantly the term “dwelling” does have a highly circumscribed legal definition and this is found in the case of Uratemp Ventures – v – Collins (2001).

The Uratemp case was in front of the House of Lords, then the highest court in the land and now the Supreme Court.  Five law lords deliberated and unanimously agreed what constitutes a “dwelling” which included some very pertinent issues to the bedroom tax arguments.

It deliberated and considered (yes that word again!) what is a dwelling and looked at the development of this right back to the language of Milton through the Reform Acts and enfranchisement to the Rent Acts right up to the present day of 2001 as it then was.  A thorough investigation and consideration of what constitutes a “dwelling” in simple terms.

The late Lord Bingham who was Master of the Rolls and Lord Chancellor and recognised as one of if not the finest jurist in living memory says a room is what it is used for.  You can call a room anything you like but what it is used for determines in fact and in law what it is.

What flows from this esteemed view is that a room has to USED as a bedroom for it to be a bedroom

If it is used as a study then it is a study, and to return to my simplified statement above… Just because a room could be a bedroom doesn’t mean it is a bedroom in law.

As we have seen local councils who are the sole decision makers for the bedroom tax decision have chosen to simply believe what the landlord says in the bedroom tax decisions and this contradicts what the 5 law lords said in Uratemp.  We have also seen tenants arguing that a room is not a bedroom it is a study (or other room) and has always been a study hence is not a bedroom and should not be classed as a bedroom by the local council in making the bedroom tax decision.

The argument I am presenting here is that the law is of much greater importance than what the landlords and the councils opinions, which it clearly has to be as neither of these are above the law.

Again…Just because a room could be a bedroom doesn’t mean it is a bedroom in law.

The pre-1996 issue has seen and exposed the dearth of consideration local councils put into making the bedroom tax decisions to a consideration of eligible rent which has to be undertaken for every bedroom tax decision which I have always maintained were and are a sham.

The subtle but very distinct difference the term “dwelling” has in law over the word “property” has led me to this argument.  Dwelling is defined in law and is a matter of fact and again through the Uratemp case a fact to be determined when the decision was made given longstanding legal precedents on that issue.  Read again the judgments given by Simon Collins QC in Fife and you can see the Uratemp issues at play in terms of a decision being made on the facts and on the facts at the time the decisions were made.

When councils have said in very simplistic terms that the tenancy agreement which the tenant may have signed 20 years ago says 3 bedrooms therefore the dwelling now has 3 bedrooms has always been dubious.  And again in Uratemp we see Lord Bingham state that the 1988 Housing Act accepted that a tenancy can and indeed does change over time.

Take a look at what Lord Bingham says in Uratemp and we see:

10. Save that a dwelling-house may be a house or part of a house (1988 Act, section 45(1)), no statutory guidance is given on the meaning of this now rather old-fashioned expression. But the concept is clear enough: it describes a place where someone dwells, lives or resides. In deciding in any given case whether the subject-matter of a letting falls within that description it is proper to have regard to the object of the legislation, directed as it is to giving a measure of security to those who make their homes in rented accommodation at the lower end of the housing market. It is not to be expected that such accommodation will necessarily offer all the amenities to be found in more expensive accommodation.

    11. The time at which it has to be judged whether premises are entitled to protection is when action is brought: Baker v Turner [1950] AC 401 at 415, 419-420. At that stage it is necessary to consider the terms of the letting, the premises let and, in my opinion, the use made of them by the tenant: see section 1(1)(b) of the 1988 Act, which recognises that circumstances may change during the currency of a tenancy.”

 

As the highlighted sections show at 10 a property in modern language can include one OR MORE dwellings.  This means that the local council in merely accepting the landlords word did NOT investigate whether a property contained say two ‘dwellings’ which it can easily do if a former “couple” still live there but lead separate lives.  In that situation, which is much more common that you may think, this is also two “households” and should be two separate HB claims.  Yet tenants in that situation often have one claimant as they do not want to wash their dirty linen in public.  In reality and in fact they do not conform to the HB definition of “couple” and even if they have never divorced as the HB definition needs to be in one household and not two.

So as councils assume that a couple in lay terms conform to the HB regulatory definition of ‘couple’ which means they share one household and one household only ask yourself did councils consider this? Or  in their expedient and error-strewn haste to make any decision on the bedroom tax did councils fail to look at this and in doing so exposed the sham process they undertook – which as I have said before was heavily steered by the sham that the A4/2012 bedroom tax guidance was and is.

The above quotes at 11 also state very clearly that each case has to be judged on the facts of the matter and the facts at the time the decision was taken.  Yet local councils have said you signed for a 3 bed on your tenancy 20 years ago therefore it is a 3 bed now.  That overly simplistic approach in the bedroom tax decision making process flies against the law.

The above quotes at 11 contain the room usage issue.  When Lord Bingham says “At that stage it is necessary to consider the terms of the letting, the premises let and, in my opinion, the use made of them by the tenant: see section 1(1)(b) of the 1988 Act, which recognises that circumstances may change during the currency of a tenancy” he is stating a very strong argument in law for the room usage argument in the bedroom tax

He then goes on to say “that circumstances may change during the currency of a tenancy” which throws the typical you signed for a 3 bed in 1998 therefore it’s now a 3 bed out of the water in terms of legal reliability and the bedroom tax decision.  He also states that such change is and has been recognised as a key theme of the 1988 Housing Act and so been well known for 25 years and more.

Jonathan Mitchell QC gave an opinion for the Govan Law Centre at the start of the bedroom tax which was made available in the public domain and in it he said that room size was important and room usage was too.  He was clearly right on the room size issue AND recently in Liverpool we saw a claimed ‘bedroom’ ruled not to be one because of room size and room usage in collective terms not one separate issue.  We have also seen the Westminster case decide a bedroom is not a bedroom due to room usage.  There has recently been another case in Fife in December in which a bedroom was not a bedroom but a store room for disability equipment – all have room usage as an element and now the Uratemp case takes much more meaning and will see that room usage is a central argument in bedroom tax appeals.

A room usage argument I suggest has just as strong if not stronger legal underpinnings than the room size argument, yet it is not straightforward and simple.  How does a tenant prove it has always been used as a study is a pertinent yet fallacious question to ask, and that is not as contradictive as it appears.

It is pertinent because the local councils have simply accepted the landlord’s word on the number of bedrooms in a property and thus the tenant is being asked to disprove that number on a guilty until proven innocent basis.  That is entirely unacceptable as t the burden of proof as to what a room is – a bedroom or a study – should be on the council to rve as a matter of fact as well as a matter of law.  Yet in choosing to believe the word of the landlord (a third-party and a vested one too) councils got out of what the law says they have to do in Uratemp and all the previous precedents it discusses – that of making a considered decision based on fact and on fact at the time the bedroom tax decisions were made.

It is a false or fallacious position the tenant finds herself in and all caused by the councils adopting a sham decision making process that Uratemp and Lord Bingham and 4 other law lords say is a false position and an unlawful one to adopt.  Councils fettering their discretion by choosing to merely accept the landlords word pales into insignificance by comparison to the Uratemp position on fact and the law of what is a dwelling.

Councils did not confirm what each tenant had in terms of bedrooms and the number of them in each dwelling.  They simply took the landlords word and even them that was often just a line in a spreadsheet they were sent from social landlords asset registers.  It invariably did not include any information on room sizes and most definitely would not have included any information or room usage as social landlords could not have known this.

This sham process of believing what the landlord says I have stated often before yet know with the DWP admitting the pre-1996 blunder it takes on a huge irony.  The HB circular U1 of 2014 is at pains to ‘guide’ local councils not to reverse its bedroom tax decision unless it is “satisfied.”

In simple terms the DWP are saying if there’s any doubt or you don’t have the ‘evidence’ then don’t repay the bedroom tax deducted.  The same DWP guided local councils to impose the bedroom tax on the flimsiest of ‘evidence’ by comparison and on the lines of it is can be used as a bedroom then it is a bedroom….which of course also flies in the face of the Uratemp judgment and the law as the 5 law lords unanimously agreed it to be.

Just because a room could be a bedroom…..

I have barely touched on many other aspects of the Uratemp case above and there are many more reasons why I maintain that every bedroom tax decision flies in the face of what the law says and hence unlawful.  There are more arguments along this line which I will outline in the near future and the room usage argument above is just one of them that should provoke some discussion and thought and the arguments above are far from chapter and verse on other arguments around the terms consider and confirm.

Thoughts anyone? Let’s debate