I did not emphasise the real issue when I reported on the Wirral MBC case a day or so ago choosing to seek permission directly from the Upper Tribunal to appeal against a bedroom tax case with a room measuring 36.53 square feet. My error was in focusing on the decision taken and not what the decision meant as the REAL issue is the overt discrimination the social tenant suffers in the bedroom tax policy and this specific case highlights the general discrimination which is deserving of much more attention than the ridiculous decision Wirral MBC has taken.
In short if a private landlord had attempted to rent out the 36.53 square feet room as a bedroom then: –
- The private landlord would not be allowed to deem this room a bedroom, and
- Would not receive the higher HB towards rent – a 3 bed rather than a 2 bed HB payment
- Likely to be prosecuted (and knowing the facts of this case they would be)
YET because it is a social landlord the tenant gets persecuted and hit with the bedroom tax deduction and that is discriminatory and this case highlights this general discrimination in the bedroom tax policy.
The issue gives rise to further room size bedroom tax appeal arguments and potentially a judicial review of the policy itself and that is where the emphasis should have been. It comes about for a few reasons and it is useful to compare the social rented sector (SRS) position to the private rented sector (PRS) position to the same situation of a room of less than 50 square feet being deemed a ‘bedroom’ by the landlord.
Firstly, the PRS landlord claiming a property has 3 bedrooms can and invariably has that property inspected for the validity of such a claim by the independent rent officer service. The Rent Officer comes out to check and the last yearly figures I have reveal 219,000 yearly inspections. YET such inspections and the opportunity for these to be conducted on social housing properties was taken away by this government in April 2013 when the bedroom tax started.
Secondly that means the social landlord’s word is simply believed whereas the private landlord’s word is not. That is highly significant and blatantly discriminatory in favour of the social landlord and to the detriment of the social tenant as both SRS and PRS landlords have a clear and unambiguous vested interest in stating the property has as many bedrooms as possible as the higher the number of alleged bedrooms then the higher the rent that is charged and the higher the housing benefit (HB for SRS and LHA for PRS) can be received.
Thirdly, the PRS landlords view of the number of bedrooms is governed independently and in accordance with the Rent Officers Handbook while the SRS landlords word is simply taken as read. The habitual element of public good, private bad endemic to local government becomes SRS good and believable and PRS bad and all Rachmannesque.
Fourthly, the PRS tenant has protection from the (bad) PRS landlord from stating a cupboard is a bedroom yet the SRS tenant has no such protection for the (good?) SRS landlord from deeming a 36.53 square feet room is a bedroom and charging the social tenant and the public purse a higher rent and HB payment.
Fifth, the Housing Act 2004 does not distinguish between the PRS and SRS and applies in terms of health and safety and fit for purpose of all properties YET thecouncil environmental health officers and councils environmental health strategies focus almost exclusively on PRS properties and rarely inspect SRS properties. So again the social tenant is discriminated against as he or she is unlikely to receive the same level of care and duty the council owes simply because his or her landlord is a social landlord.
The age-old public good / private bad mentality of councils lets down the social tenant and as we see in this specific case the social tenant gets hit with a HB deduction (the bedroom tax) that simply does not happen if the tenant was a private tenant.
The odds of finding a private tenancy with a room of less than fifty square feet in floor space and getting benefit for that room is remote yet there may be tens of thousands of such rooms rented as bedroom in social housing and (a) being charged for in rent by the landlord and (b) the taxpayer paying higher levels of HB on these rooms which are not bedrooms.
It is not only my anecdotal evidence of 20 years of working in social housing and with private properties that gives rise to this assertion as the English Housing Survey (EHS) at Table 11 2012 Stock Profile which is the largest yearly survey of rented housing states the average floor size of a SRS property is just 62.6 sq/m and the average for a PRS property is 97.6 sq/m – or some 56% larger than a SRS property!
The inherent prejudice of councils – the private bad / public good position – prevents the social tenant getting the same protection as the private tenant and has always done so. Yet the bedroom tax has highlighted that discrimination, exacerbated it and made that discrimination REAL.
Prior to the bedroom tax it was only the self-paying social tenant who was paying for an alleged extra bedroom as HB paid the social housing benefit claimant the rent in full. The discrimination between the SRS tenant and the PRS tenant only became a real issue with the introduction of the bedroom tax policy and so while this discrimination has always existed it had no real affect in a practical sense and was only a matter between landlord and tenant.
Yet with the bedroom tax it becomes a matter between the tenant as claimant and the local authority HB department as the decision maker. By virtue of the bedroom tax policy it becomes a public body decision and one that becomes amenable to judicial review because of that and no doubt the legal commentators will say how valid such a challenge can be. In a lesser legal light the fact that a room of under 50 square feet is highly unlikely to be deemed a bedroom if the tenant is a private one gives an enhanced challenge to the social tenant in appealing the bedroom tax decision to a Tribunal on room size if they have had the deduction imposed on a room of less than 50 square feet.
It wouldn’t happen to a private tenant M’lud so how can it lawfully happen to me being the simple and obvious overall strategy.
The social tenant should begin to consider the Housing Act 2004 duties their local council has and refer back to previous posts on this and to the recent Liverpool judgment especially a council health and safety and HA2004 duties and to the recent Bristol case which stated categorically that the landlords word is not definitive. I can imagine that environmental health officers in local councils will be very busy indeed and rightfully so and this should definitely happen in the Wirral case as will the council go ahead with an appeal to the Upper Tribunal if their own environmental health department say this property is not a 3 bed which knowing the property and its layout they would have to do? The social landlord has a problem however.
The evidence and legal reasons why a room of less than 50 square feet cannot be a bedroom is compelling and getting stronger with each bedroom tax case. The two Fife cases on room size being appealed by the DWP (they decided not to appeal the other 2 of the 4 original Fife cases) which will be heard by the Upper Tribunal in Edinburgh at the end of June or first week in July concern room sizes of over 50 square feet but under 70 square feet and they are limited to the 1985 Housing Act overcrowding issues (1987 Act in Scotland) and do not concern rooms of less than 50 square feet that are allegedly bedrooms. So even if the DWP is successful then the Upper Tribunal will still at another hearing have to establish the under 50 square feet issue as this is not just a pure overcrowding matter from the 1985 (1987 Scotland) Housing Acts. And as this post argues there is a blatant discrimination going on with rooms of under 50 square feet not being considered to be bedrooms for the private tenant but are for the social tenant for all the reasons mentioned above.
That is why the emphasis I should have made and hammered home from the Wirral case is this discrimination and not the fact that Wirral council need to be shamed (they still do of course) and that Wirral council is committing local money to appeal (a stupid and offensive idea) or that the ruling councillors in Wirral are Labour (though they do deserve a rocket up their backsides still!)
The REAL issue emanating from the Wirral case is the blatant discrimination the social tenant is suffering directly because of the bedroom tax compared to the private tenant.