Will the courts force coalition to abandon the bedroom tax policy? Yes!

The legal definition of ‘bedroom’ is so much more than each local council having to inspect each property at a huge cost to local government.  It allows the new bedroom tax decisions taken by local government in March this year to be challenged by way of JR in a very simple and cost-efficient way and such a JR challenge will mortally wound the bedroom tax policy and get rid of it once and for all.  Here I explain why.

From the beginning I have railed against the bedroom tax and with good reason.  How can any council decide you have one or more bedrooms too many if there is no definition of what constitutes a bedroom has been THE central issue.  If you cant say what a bedroom is then how can anyone say you have too many?  It makes no sense at all.  Yet councils made these decisions on 523,000 Housing Benefit claims on the flimsiest of evidence and with scant consideration and even the so-called evidence basis was that of a vested interest in the landlord.

It was and is a mess.

YET now we do have a legal definition of ‘bedroom’ and boy oh boy does the proverbial now hit the fan!

A judge in an Upper Tribunal case has determined that ‘bedroom’ has its ordinary everyday meaning which is a room furnished with a bed and/or used for sleeping in.  Hardly a revelation but it has huge consequence for the bedroom tax policy.

Firstly, the fact this is an Upper Tribunal decision means it is a legal definition which binds and councils in making decisions have to give this regard in their decisions as do first tier or lower tribunals on 2013/14 appeals.  Note that existing cases have 13 months in which to appeal the bedroom tax decisions made in March 2013 and so all 523,000 decisions can still (and should!) be appealed.

Secondly, councils are now in the process of determining 523,000 or so new bedroom tax decisions for 2014/15 and here is where the legal definition really comes into play.  These decisions have to factor in the definition of a room furnished with beds and/or used for sleeping – but how the hell do councils know this is the case?

How does a council KNOW the social tenant’s allegedly ‘spare’ bedroom is used as or furnished as a bedroom?

They don’t and they can’t know this. Yet they are the decision makers and they are duty bound to make each bedroom tax HB decision correctly and in accordance with law and regulations.  This for me as a first consequence can ONLY mean when a tenant disputes a room is a bedroom then councils will have to inspect each property to determine whether a room is furnished as or used as a bedroom.

The cost of doing that will be astronomical and could result in the situation that it costs the public purse more to decide whether a room is a bedroom that any ‘saving’ this produces for the public purse.  And even that becomes a problem as correctly it will cost the LOCAL public purse, that is the local council, more than the CENTRAL government public purse saves.

The truly bizarre upshot of this is that local councils will spend a fortune of local money for a decision to take millions out of the local economy so that IDS and the DWP at central government can have a saving.  This creates a huge tension between local and central government and one that cannot be resolved unless (a) central government gives local government the money to do these inspections which is unlikely; or (b) local government refuse to make new bedroom tax decisions which is even more unlikely.

All of this is predicated on the tenant disputing they have spare ‘bedrooms’ and note here that the bedroom tax can ONLY be applied to a ‘bedroom’ however defined which is why the name ‘spare room subsidy’ has always been a misnomer and a much bigger political construct than the term ‘bedroom tax.’

Tenants should be and undoubtedly will be appealing that the spare room is a study as it is used and furnished as a study/ computer / homework room or any other genuine and logical  use other than a bedroom.

Is it unreasonable that a couple with teenage boys argue that mum and dad sleep in one bedroom, the girls sleep in the other bedroom but the boxroom is used as a computer room for the girls to do their homework in?  Of course not that is a typical usage of the ubiquitous 3 bed/5 property. Hence the bedroom tax is not 14% but zero.

What about the couple who have brought up their children who have now flown the coop in a property that has two double bedrooms and a boxroom?  Is it unreasonable to see that property being used as having one genuine spare bedroom and the boxroom used as a study / storage / computer room? Yes it is as that reflects reality of everyday life and the 25% bedroom tax reduces to 14%

Tenants should dispute the number of bedrooms on their normal usage as that is the reality.  It then takes away the contentious though very valid arguments on room size which tends to be about these ‘boxrooms’ in the majority of cases anyway. As I stated here before the legal definition of a bedroom became known room usage is likely to play a much bigger part than room size arguments in challenging the bedroom tax decisions this year.

IF, and it is a big “if” the reticent British public do forget that it is “not British” to challenge and in fact do challenge the local councils decision to impose the bedroom tax then the proverbial hits the fan.  With this Upper Tribunal ruling on a bedroom needing to be used and furnished as a bedroom then local councils can no longer get away with the landlord says it is a 3 bed so its a 3 bed and the local council has to come out and inspect as part of the decision to impose the bedroom tax.  If they don’t they are taking a high risk strategy should the usually reticent British tenant stick to their guns and insist on the bedroom tax decision going to appeal. Though rather than my local council in Liverpool having to attend 11000 or so appeals it is surely the case that the decision to impose the bedroom tax will be taken along the judicial review route.

How can a council impose a deduction of housing benefit (the bedroom tax) or even make a decision at all based on guesswork for that it what this is if the council does not go out and inspect?

It seems highly probable that a series of JRs will be taken against all councils bedroom tax decision making and not before time as I have always maintained this was a sham and now this legal definition makes this a racing certainty.  It has always been a nonsense and legal fiction that a council can legally rely upon the word of a vested interest landlord.  Similarly it has always been a nonsense and legal fiction that the tenancy agreement says three bedrooms therefore the property has 3 bedrooms and again that the ubiquitous decision of all councils to choose to believe the landlords is a sham blanket policy in which they have fettered their discretion out of cost factors and expediency.

Councils will be resolute in that they will NOT be coming out to inspect due to cost factors and doubtless arguments such as tenants will simply take out beds from rooms and put in a desk to say they are a study and not a bedroom.  Yet while there is much validity in that it is still assumptive and not fact and the bedroom tax like all HB decisions and like all welfare benefit decisions and like all public authority decisions need to be determined on fact and not on assumption.

Social landlords will be at first apoplectic over this legal definition as more and more tenants will appeal and refuse to pay the bedroom tax element that has been imposed in this assumptive and legally fictitious way.  Costs of chasing alleged underpayments of rent will rocket as will costs of court actions and – yet again – the bedroom tax will directly create an even bigger tension between tenant and landlord than it already has.

Doubtless social landlords will once again take the stupid route and look to reclassify properties while lobbying government that one spare ‘bedroom’ should be allowed for all tenants which was always a naive and futile strategy and especially with this stubborn coalition despite some underlying merit in the argument vis-a-vis statutory overcrowding being two bedrooms fewer than need to qualify for it. Doubtless too that landlords ill keep sending out staff to see whether boxrooms can ‘fit a bed in’ and other futile strategies so it looks like they are doing something for the tenant.  That has always been a nonsense and when will they realise the bedroom tax decision is nothing to do with them it is between the tenant and the local council and social landlords sticking their noses in hinders the challenge to the bedroom tax rather than helps it!

Landlords should be thinking of funding JRs as a matter of urgency and correct strategy as this will put the fear of God into the coalition and challenge the pernicious bedroom tax policy far more than bleating about the impacts of it and non viable and timid craven strategies such as lobbying for every tenant to be permitted one spare room.  Yet that would involve landlords thinking straight and logically which invariably ends not to happen with the ultra conservative ‘sector’ who see painting a door anything other than green as radical!

The legal definition now presents a huge opportunity for the entire bedroom tax policy to be scrutinised through a judicial review as to the central question of what is a bedroom.  When for example Liverpool City Council issues their 2014/15 bedroom tax decisions based on their assumption of how many ‘bedrooms’ a tenant has which they will do without going out to inspect a property, the assumptiveness of that decision with its absence of fact and any evidential substantiation etc., etc., should become the subject of a JR by tenant(s) which landlords should fund.  The cost between all landlords in the city equates to peanuts for each and it enables the High Court to rule on this farce of an administrative decision – in essence the entire bedroom tax policy with its sham of a decision-making process is the issue of the JR which the legal definition from the Upper Tribunal now makes even more of a sham than I have have always maintained it was and is.

The UT decision with its legal definition of ‘bedroom’ now enables such a judicial review of the entire policy and that is a huge challenge which social landlords will be seen to be making by funding.  With 1200 social landlords in the UK just imagine if they all put in a measly £1000 each.  That makes a £1.2m war chest to challenge the bedroom tax in its entirety!  Or put another way ask any landlord if for the cost of £1000 they could get rid of the bedroom tax policy and such a question becomes a rhetorical one!

Conversely or alternatively ask all unions to fund such a JR for the political damage this would wreak on the coalition or a whole multitude of others who have a ‘political’ axe to grind against this pernicious policy and the upshot is the same.

The opportunity the legal definition of ‘bedroom’ presents and one that social landlords would be stupid to ignore and landlords have to so this to demonstrate to tenants that landlords are on their side.  The PR coup this will give landlords in tenant eyes is very much needed for all landlords.

In summary and as I stated at the start the legal definition of ‘bedroom’ is so much more than each local council having to inspect each property at a huge cost to local government.  It allows the new bedroom tax decisions taken by local government in March this year to be challenged by way of JR in a very simple and cost-efficient way and such a JR challenge will mortally wound the bedroom tax policy and get rid of it once and for all.