Bedroom Tax room size cases finally at Upper tribunal – time to act!

Two of the 5 cases handed down in Kirkcaldy, Fife in August 2013 will be in front of the Upper Tribunal in September – 389 days after the First tier Tribunal decisions of Simon Collins QC turned the bedroom tax on its head.

Four cases won that day yet only 2 are being appealed by DWP, the cases of Davie Nelson and Unnamed and both these cases rely heavily if not exclusively on the 1985 Housing Act overcrowding legislation in England & Wales mirrored in the 1987 Housing (Scotland) Act.

I spoke with the tenants and the Fife Law Centre last week and have been invited to attend which I will do and I don’t intend to discuss these cases and their specific issues before that time for obvious reasons.

These two cases will make precedent on how the 1985 Housing Act applies to the bedroom tax regulations and will be of interest to many who (a) have already won on that ground, (b) those who have appealed using that ground and (c) those who have yet to appeal.

The ‘room size’ arguments have developed many different forms since last August such as HA 2004 and LACORS 2009 size arguments, planning consent and others; and there has also been a number of nuances and conflations such as room size and room usage, room size and historical use, room size, room usage and fit for purpose etc – the Tribunal judges have been careful to cover their decisions and not limit them just to the 1985 or 1987 Act and overcrowding.

I am reasonably certain that the Upper Tribunal can only decide on the facts as argued on these specific cases and not bring in other room size issues, though please advise me if this is not the case and that of course gives some strong pointers to those whose cases have yet to be heard or whose case is yet to be appealed – DONT simply rely on the 1985 Act if in England & Wales or the 1987 Act if in Scotland.

For those who have yet to appeal despite having 13 months from the 2014/15 succession decisions and those who have appealed and awaiting a hearing you really should be thinking of the end of August as a better date to appeal by and to submit further appeal grounds to the Tribunal if on room size – the date finally coming around for the UT hearings will focus the minds of tenants and will lead to a rush of appeals before this date.

That will please some such as colleagues in Wirral who have launched a 1000 appeals campaign for the 3500 or so bedroom tax cases there – colleagues who have been very successful at winning appeals too. A similar rush will occur in South Wales too where they are well on their way to over 350 or so appeals and I suspect that number will rise considerably given awareness of this date.

Bedroom tax surgeries run by the many grassroots groups will need help in all sorts of ways to cope with this, not just more volunteers and a hugely increased tea and coffee budget but for social landlords to either put up or shut up in terms of funding. In some areas of Merseyside the appeal dates for 2013/14 cases are only just starting to come through despite originally being handed in 12 months ago and if the tardy councils like Sefton think the worst of the paperwork and admin is over they can think again!  There are also other areas like Telford & Wrekin which have only just seen tenants get their 2013/14 hearing dates too.

Canny (no pun intended) bedroom tax advisors will of course note that some aspects of the D Nelson and Unnamed cases were also evident in the other two successful Fife cases which the DWP has chosen NOT to appeal.  That suggests loud and clear that the DWP must believe the 1985 / 1987 Housing Acts on overcrowding is their best chance of winning and having the FTT decisions overturned.

As well as informing of the date of the UT case this is also a shout out to the many legal and housing professionals who wish to see the bedroom tax become history and believe it is pernicious.  Any comments and advice will be gratefully received and of course remain entirely 100% confidential when communicated to me and there is about a 90-day window for that to happen.

To fellow activists and campaigners we have shared so much freely and collectively and long may that continue.  I need not restate my view that should the room size grounds be upheld in the UT then the bedroom tax is finished at least politically on day 525 of the bedroom tax – 525 days of back of a fag packet social policy experimentation on some of the very poorest and most vulnerable men, women and children of which Mengele would be proud.

90 days to get together and rub the noses of IDS and McVey into the same brown smelly stuff they have imposed on the sick and the disabled and the poor.  Let’s not waste any of that time squabbling or prevarication or on any other agenda.

Landlords spent tens of thousands getting counsel opinions before the bedroom tax began and I have read and have copies of many of them.  Should social landlords see fit to circulate them in confidence or have them revised and forward in confidence I would be grateful and of course all in 100% confidence as should the two Fife cases on room size be upheld then social landlords will benefit massively and not suffer any rent loss either.

One final thought dear reader – Should the UT uphold the FTT room size decisions you will be hearing a helluva lot less of my rants.  Now c’mon. If you ever needed an incentive….!!

 

 

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15 thoughts on “Bedroom Tax room size cases finally at Upper tribunal – time to act!

  1. Causing overcrowding is an offence which is punishable with a fine Responsibilities of landlord see here:- 1985 act

    331 Penalty for landlord causing or permitting overcrowding.

    (1)The landlord of a dwelling commits a summary offence if he causes or permits it to be overcrowded.
    (2)He shall be deemed to cause or permit it to be overcrowded in the following circumstances, and not otherwise—
    (a)if he or a person effecting the letting on his behalf had reasonable cause to believe that the dwelling would become overcrowded in circumstances rendering the occupier guilty of an offence;
    (b)if he or a person effecting the letting on his behalf failed to make inquiries of the proposed occupier as to the number, age and sex of the persons who would be allowed to sleep in the dwelling;
    (c)if notice is served on him or his agent by the local housing authority that the dwelling is overcrowded in such circumstances as to render the occupier guilty of an offence and he fails to take such steps as are reasonably open to him for securing the abatement of the overcrowding, including if necessary legal proceedings for possession of the dwelling.
    (3)A person committing an offence under this section is liable on conviction to a fine not exceeding [F3level 2] on the standard scale and to a further fine not exceeding [F4one-tenth of the amount corresponding to that level] in respect of every day subsequent to the day on which he is convicted on which the offence continues

    …. in the act you refer to Joe the Landlord has to tell the tenant before hand (when the contract is signed) that if they break the law they will be committing an offence… if the Landlord does not, then the landlord is committing the offence…. punishable by a fine…. how many landlords nower days put the correct information on a rent book of similar document? NONE…..
    see here:-

    332 Information to be contained in rent book.

    (1)Every rent book or similar document used in relation to a dwelling by or on behalf of the landlord shall contain—
    (a)a summary in the prescribed form of the preceding provisions of this Part, and
    (b)a statement of the permitted number of persons in relation to the dwelling.
    (2)If a rent book or similar document not containing such a summary and statement is used by or on behalf of the landlord, the landlord is guilty of a summary offence and liable on conviction to a fine not exceeding level 1 on the standard scale.
    (3)The local housing authority shall on the application of the landlord or the occupier of a dwelling inform him in writing of the permitted number of persons in relation to the dwelling; and a statement inserted in a rent book or similar document which agrees with information so given shall be deemed to be a sufficient and correct statement.

    So all landlords are already committing an offence by not telling the tenant that they will be committing an offence if they allow their home to become overcrowded. But in the HB 2014 it told landlords to accurately describe their properties…… in order to accurately describe their properties all they had to do was refer to the information that was already supplied to the tenant in their rent book or other similar document….. Where is this document? How can they say they have gave an accurate description when the evidence they have supplied does not contain the size of the bedrooms which they would have needed in order to make the accurate description. They have committed an offence and are going to admit it to the tribunal…

    Part of the act says that the tables for overcrowding must be given to the tenant when contracts are signed…the landlords already know (or should know) how big the bedrooms are in order to give the tenant the permitted number of people allowed to dwell there… so they already know or they are committing an offence by not knowing…. and if they know how big the bedrooms are ( or should have known) then by not knowing shows that they have acted illegally on every single bedroom tax decision… and thats how I’m handling my tribunal…

    1. The simple issue is whether the 1985 Act (or other legislation) is simply ‘read across’ into HB regulations and not whether it would apply in other circumstances

  2. I’m thinking it would have to read across because of the offence that is caused… there is no offence for the bedroom tax…. it is the lesser of the 2 crimes… and therefore carries less weight in the reading over… the 1985 takes precedence because of the offences committed.

  3. how can the local authority rely on information or the tribunal for that matter, supplied by a landlord that is committing an offence by not supplying accurate information in the first place (fraud) which they should have supplied from the information contained in a rent book? and at the same time committing an offence by not supplying the tenant with that information to be contained in a rent book or other similar document in the first place….. I’m sure in law the offence that holds the bigger fault carries precedence….. and since the bedroom tax amendments hold no offences… the 1985 act can only take precedence and if it does not why are the government using it to justify the bedroom tax?

  4. There will be some like for example :- a one parent family with a child over 10 living in 2 bed accommodation currently on the waiting list because of overcrowding (bedroom size)……. yet the HB amendment means they are living in the correct size property…. this is where the read over occurs… one of these options has to take precedence… and because the 1985 act holds the offence then this has to be factored in first….

    It can never be any other way Joe in this example and I’m convinced this is why room issue is working best…

      1. A family of 5, both parents, 16 yr old girl, 11 & 12 year old boys and a 3 bed home with a bedroom from each room size (total 4 people) and a gas fire in the sitting room, would that be statutory?

  5. Reblogged this on Vox Political and commented:
    “Should the room size grounds be upheld in the [Upper Tribunal] then the bedroom tax is finished at least politically on day 525 of the bedroom tax – 525 days of back of a fag packet social policy experimentation on some of the very poorest and most vulnerable men, women and children of which Mengele would be proud.”

  6. There is no need to worry about discussing the specific cases involved in the UT appeal: it’s not a jury trial so there is no danger of prejudice to either side’s case arising from prior publicity. Obviously one of the names is not in the public domain and that shoud remain so in order to protect the privacy of the person concerned, but the facts and legal issues can be discussed freely.

    One very important point is the timing of appeals by others with “look-alike” cases. If there is anyone out there who has not yet appealed and who would, if DWP’s appeals are rejected, be able to make a case relying heavily on overcrowding “read-across”, it is very important that they get their appeals in the system before the UT pronounces. This is because the “anti-test case” provisions mean that anyone coming forward for the first time after the UT hands down its decision in the Fife cases cannot receive arrears of HB for any period before that date.

  7. I’m just thinking out loud…. if my argument is flawed can somebody point me out to where I am going wrong please…

    It states in the guidance manual :-

    Bedroom size
    12. 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.

    Then there is a legal duty for the landlord to accurately describe the property…

    Now if, as is the case, we are all presumed to know the law, even more so for public bodies, then by willfully and deliberately not supplying accurate information they would be committing fraud….. and anybody else who uses that information without first making sure it is in fact correct is also committing fraud…..

    Since there is an OFFENCE of not supplying the tenant with information to be contained in a rent book, and part of that information is to know how many people can dwell in a household and because the only way to know how many people can dwell in a household is by measuring the rooms beforehand…… They already know the size of the bedrooms beforehand to comply with the law…(but they have not done this, none of them)(all guilty of breaking the law)

    Since all landlords are presumed to know the law, by not giving this information (contained in a rent book or other similar document) to the local authority when it asked for accurate information for bedroom tax purposes then they have committed fraud and so have to local authority. (twice they have broke the law now and this time it’s far more serious)

    There can be no denial of this fraud as they have already broke the law by not supplying tenants with the correct information to be contained in a rent book or other similar document…

    Show me the proof…. where are these documents? They HAVE to exist by law or this becomes absurd… if the tribunals start to go against the size issue then they too would be committing fraud.. I think they know this….

    1. No there is NOT any duty on landlords at all and there are a few reasons for this.

      Firstly the decision on the bedroom tax imposition is SOLELY that of the benefit authority – that is the council. The council can choose to accept or reject the landlords view.

      Secondly, you quote fro guidance and that is all ais – guidance – and not regulation or legislation – guidance is look before you cross the road or don’t stick your hand in the fire and it cannot be a duty

      Many more reasons but go look at paragraph 20 of same A4/2012 HB circular. It says the landlord does not have to provide the councils with any information at all.

      The premise that landlords have a duty is fundamentally flawed and hence so are arguments which rely on that premise such as fraud

  8. It does not matter that landlords do not have to supply the information or the authorities do not have to ask the landlord….. the point is that IF the authority do ask the landlord for information and IF the landlord supplies that information ……. then they are legally obliged to supply accurate information because thats what the guidance says… “It Will be up to the landlord to accurately…..” The statement of reasons which you told us to ask for will have all the information on that the authority used to make their decision, this will have to be added as evidence by the authority…… if they do not enter this evidence… why not? and if they have not supplied that information in the first place when asked for … again why not? and as it is a right to have a reconsideration and a statement of reasons this evidence will be crucial in any tribunal ……even just to show that the local authority carried out it’s duties correctly and did not break the law by denying anybody their rights…. if you have not got them one way then you surely got them the other…. press for the evidence….. statement of reasons and information contained in a rent book…

    1. No. Landlords have no legal obligation or duty at all, the fact they chose to provide information will still not make this a legal obligation on landlords.

      Added to that and most important is that there is ONLY one decision maker and that is the local councils who administer HB on behalf of the DWP

      The councils decision when choosing or not to believe the landlords view is the issue at hand.

      A rent book, like a tenancy agreement, is only a view and neither of them are de facto evidence that they accurately describe the property in terms of the number of bedrooms. The Bristol FTT decision of a few weeks back saw the judge correctly stating that the tenancy agreement is NOT definitive and that also applies to a rent book.

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