Social landlords £120 million bungled bedroom tax strategy

IF in the next week or so I am proved right that  bedroom does have a minimum size then the view of the ‘great and the good’ of social housing that I was wrong will have cost social landlords about £120 million.  Or put another way the free advice I have been saying all along that tenants should appeal and landlords should support the to appeal was £120 million worth of advice that pig-headed social landlords chose to ignore!  Boy are my fee rates going to rocket WHEN I am proved right!!

IF the Upper Tribunal decide, as I strongly suggest they will, that the term bedroom for bedroom tax purposes means a room with an absolute minimum floor size of 50 square feet than social landlords will have foregone £120m as the estimated 50,000 to 100,000 households that have such a mere room hit by the bedroom tax will only benefit from the day the UT decision is handed down.  Yet if those tenants had appealed the original decisions then they would have benefited from 1 April 2013.  The difference in HB payments is £60m to £120m to individual tenants and social landlords on a collective basis.

First, lets see how the ‘great and the good’ of social housing decried my view that all tenants should appeal which they did in a professional character assassination attempt in Inside Housing back in April 2013 and that is here

The ‘brilliant’ CIH didn’t just argue against appealing they SLATED my position out of hand and the NHF also supported their errant view.  Both of these two principal overarching housing bodies got the bedroom tax massively wrong and cost social landlords and social tenants millions.

ihattack

So I wonder how these ‘brilliant’ minds will be feeling when I say their inept stubborn thinking has cost them up to £120 million?

To explain imagine you are a fly on the wall at the bedroom tax Upper Tribunal lead case held in Edinburgh on 18 September almost three weeks ago and imagine the following conversation that took place:

NOTE: UTJ = Upper Tribunal Judge(s) – HPA = Highly Paid Advocates (DWPs 5 strong legal team)

  • UTJ : So what is the Secretary of States definition of a bedroom?
  • HPA: A room that can fit a single bed
  • UTJ: And that is all?
  • HPA: Yes
  • UTJ: So a single bed surrounded by 4 walls?
  • HPA: Yes
  • UTJ: So what if the door opens inwards?
  • HPA: Change the hinges:
  • ……….pause
  • UTJ: So where does the tenant get dressed and undressed?
  • HPA: They stand on the bed
  • UTJ: What planet are you on!

There then follows a lull when the HPA suggests a room of 30 square feet is a bedroom

  • UTJ: So where does the wardrobe go in this 30 square feet room?
  • HPA: In the living room!
  • UTJ: This is embarrassing! You are surely not putting that forward as legal argument!

I am also informed the UT judges had a recess and asked the DWPs five strong legal team to come back after an hour and find ANYWHERE where it said that a room of under 50 square feet can be deemed to be a bedroom.  They couldn’t find anywhere this was stated and admitted this too.

I was due to be at the Upper Tribunal hearing in Edinburgh that day but received an email at 5am to say the case was being asked to be adjourned and so I came back home rather than get the 5.28 train that morning.  The reason was the DWP had bombarded the Fife Law Centre with further papers a day or so before the hearing when it should be 14 days before in order for them to respond in a way that allows the tenants a fair hearing, or in simple terms the DWP playing dirty

tricks.

As it transpired two of the three UT judges had travelled up from London that day and noted, with disgust, the DWPs dirty tricks but continued with the hearing for that reason.  The 3 UT judges then spent about 4 hours interrogating the 5 strong DWP team and about 20 minutes quietly asking the Fife Law Centre some questions.

The UT judges even allowed a brief audience to one of the tenants involved , Davie Nelson when the DWP lawyers claimed the pictures of his disputed room showed there was a bed in it  which it didn’t. Davie just happened to have those pictures with him and the journalist who took them was there and confirmed this.

Oh dear surely the DWPs 5 strong highly paid legal team were not attempting to mislead the three Upper Tribunal judges in this matter?  Ahem!  Not the way to get the bench on your side is it? And coming after the best legal argument for the bedroom tax from the bes lawyers money could buy was a tenant gets dressed and undressed by standing on a bed in a room in which the door hinges have been change to open outwards and the wardrobe is in the living room!!

All of the above is legallly hearsay and in lay terms anecdotal as I was not there for the reasons I gave. You may choose to read into it what you will and even if I had been there to absolutely confirm all of the above it still would only be my opinion on how this will manifest in the formal judgment which is due to be handed own fairly shortly.

Yet when you consider that the best legal argument the best legal minds that the DWP could afford with its open chequebook could come up with the following to defend the bedroom tax policy:

  • a room is a bedroom if it is 6 feet 6 inches in length and 3 feet in width with an outwardly opening door (health and safety and fire escape issues?) and
  • there is no need for room to make that bed and no room for a wardrobe or chest of drawers or table and chairs in this room, and,
  • noting full well that the prefixes ‘single’ and ‘double’ in front of the word ‘bedroom’ do not appear anywhere in the regulations or legislation and the Secretary of State was free to put them there but chose not to as this would make a mockery of regulation B(13)(5) which says a couple are entitled to a bedroom yet do not sleep in a single bed or set of bunks
  • if a bedroom is merely a room surrounded by walls then just how the hell do you get into the top bunk!!!!!

– then you realise that IDS in his stupidity and political arrogance even left the lawyers deep in the same brown smelly stuff in which he placed local councils in administering this policy and the tenant in receiving its pernicious and highly assumptive decisions that flowed from his irrational guidance.

All those housing professionals who were and still are fixated on the errant notion that the minimum size of a bedroom just comes down to whether you can ‘read across’ the 1985 Housing Act overcrowding provisions or not as this is the only issue of a minimum size have been naive and caused their tenants undue harm by not supporting the appeals route.

To believe that there is no minimum size is incredulous as even IDS’s perverse 4 walls surrounding a single bed position is a minimum size…and a size that is less than one-third of the minimum bedroom size in the 1918 Tudor Walters report! Yet that is what social landlords have done after being advised that the appeal route is and was no good by the ‘great and the good’ of social housing!!

To fixate on just the 1985 Act (1987 Act in Scotland ) which merely said the same or higher as the 1957, 1949 and 1935 Acts on size issues as well as the Tudor Walters guidance on homes fit for heroes to live in of 95 years ago is woefully inept thinking by the overwhelming majority of social landlords.  The odd few social landlords have decided to support tenants to appeal and stand out like the proverbial sore thumb!

I cannot see anything other than the UT saying that a room has to have a minimum usable floor space of at least 50 square feet (and hopefully higher.)

So let me put it another way for all the ‘great and the good’ of housing who dismissed my arguments on a minimum room size being necessary that will make them sit up and take notice. IF you had taken my advice and supported your tenants to appeal then all those tenants with alleged bedrooms which are below this would have received about £1,190 more in housing benefit payments which will be foregone because they didn’t appeal. This is the average bedroom tax deducted since April 2013 to date and which you or your tenants will never get back as no appeal went forward.

If as I estimate this will be between 50,000 bedroom tax households and 100,000 then that is somewhere between £60 million and £120 million that landlords have missed out on.  Your crass and stupid decision to believe that a bedroom has no minimum size and your abject refusal to support your tenants in appealing it has cost landlords between £60 and £120 million if and when the Upper Tribunal rules that a bedroom has to be at least 50 square feet.

If they rule a bedroom has to be a minimum of 70 square feet or anything above this absolute minimum then this is more than simply passing the Kleenex to your Finance Directors.  It will be your tenants knowing that you could and should have been four square behind them in appealing this pernicious bedroom tax but you were NOT!

I wonder how these same social tenants after they realise they have been left to suffer the bedroom tax alone when it was clearly in the landlords interest to support them to appeal will then prioritise the paying of rent when direct payments rolls out?

Yes I warned you about that too but again you chose to dismiss that as the mere ramblings of a one-trick pony who was himself fixated on the bedroom tax while you denied you were fixated upon it in the most naive and incompetent way possible by believing a bedroom does not need a minimum size!

The damage YOU have done to social housing per se by not challenging the bedroom tax is you have taken away any goodwill your tenants had for you before by being so pig-headed and naive.  Time to start working on those excuses as to why you made such a stupid business decision not to support your tenants to appeal…and many of you overtly and covertly blocked that route by telling your tenants they couldn’t appeal too!  Then if you do you should remember the old adage that it takes 20 years to build a good reputation and all of 5 minutes to lose it and in not supporting ‘your’ tenants to appeal then social landlords have lost far more than £120m in goodwill of the social tenant.

You  never know you may all realise that in coming together to spin some damage limitation that you may well just need that one sector voice I have been telling you for years that you need!!

It is difficult to write this piece without reading smug and conceited as I was right all along and the ‘great an the good’ of social housing were wrong.  I am sure some housing professionals if not all will smile when they read the UT judges asked the DWP what planet they are on and all I am doing is asking the social landlord what planet you have been living on!

Im sure that smile will instantly disappear and also lead to an instant denial it was anything to do with your actions or inactions.  That, after all, is the typical way and shortly to be followed with the ok, lets draw a line in the sand and adopt a lessons learnt approach so typically turned out when social landlords (and many others not in housing) bugger up !

I don’t expect you will now listen to the advice I gave two years ago on how the systemic flaw in the overall benefit cap will mean social landlords cant afford to house larger families which was dismissed out of hand saying we will always do this as this is our ethos.  I still don’t hold out hope that you are capable of realising that the latest proposals to cut the OBC to £23k per year will make this far worse and hasten on this position rapidly as you still tell me the overall benefit cap doesn’t affect ‘your’ tenants and relying on sentiment when the financial necessity means you cannot afford to house a couple with 3 children in any part of the UK.

Will the social landlord still maintain the incredulous overall assertion that you were ready and prepared for the radical attack on social housing that all the welfare reform policies are as after all we ALL believe the old adage of tell a lie often enough and any old idiot will believe it to be true!

£120 million…..ouch!!  Oh and far more than this in ongoing rent unpaid and higher collection costs if the Tories get back in at the general election and the roll out of direct payments and (ever?) reducing benefit caps and further cuts is ramped up….and permissible because social landlords stood idly by and said there is nothing we can do!

Hmm!

Oh just 30 minutes after posting this IDS gives fresh news of the rapid expansion of the direct payment roll out here.  Those of a nervous disposition may wish they had chosen not to read this! Social housing is dead should the Tories not be voted out

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9 thoughts on “Social landlords £120 million bungled bedroom tax strategy

  1. Imagine if they had used a fraction of that now wasted money to actually support their tenants in appealing.

    Or had used a fraction of it to actually lobby against such destructive policies towards the SRS.

    Or had use a fraction of it to put forward the amount of money saved by the “social rent” portion of the SRS and how its not subsidised, reduces the overall HB benefit bill, and is good for everyone instead of holding high cost shindigs where they call all quaff champers and eat the best food while congratulating themselves on their latest pay rises and how much “in profit” (read surplus) their accounts are and that that nasty UC will not cause them an iota of worry if it ever gets implemented (which with IDS will be forced into existance with many more mandated to be on it, for all claimant types, even if it does not work to save face.)

  2. If the UTT rule that the minimum size for a bedroom is 50 sq ft (or greater) would those affected tenants who did not appeal as from April 2013 have a case if they were to sue their Housing Associations for providing misleading information to Councils which resulted in considerable financial loss from April 2013? Especially as a lot of those Housing Associations have been misleading tenants by saying that there is no point appealing because these small rooms are classified as bedrooms.

    1. Not my area of expertise but I highly doubt it. Even though landlords supplied data to councils, and when they were under no obligation to do so, the councils still CHOSE to accept the landlords word and councils were free to choose not to do this

  3. Joe, even if the UT do provide a binding definition of the size of a bedroom and I hope they do, there is no guarantee on what basis they will do so. You have been very strong in your view that there was a legal definition of a minimum bedroom size prior to this decision. Others, including me, have not shared your certainty – if there had been then there would have be no need for litigation. The UT may agree with your reasoning in which case you will say “I told you so” or they may come up with something different, but the law will only be clear at the point of the decision, and even then subject to further appeals.

    1. Bill

      The UT sets precedent as Im sure you know. My ‘certainty’ was not whether the 1985 HA applied but that there has to be a minimum bedroom size and landlords became fixated with the 1985 Act (and then said I was fixated with it to boot!) Yet the UT question was always what is a bedroom (by virtue of size) not just the 1985 read across. I agree there is no guarantee on what basis and it is an incredibly complex decision they have to hand down with so many aspects to it. Yet one thing is correct and that is landlords were apathetic to appeals when it was in their financial interest to do the exact opposite and social landlords failed their tenants with their inactions in this area

  4. The exchange of comments related to dressing in small rooms I think ought to have gone down the route of health and safety in more detail. What happens if the occupant falls short or long term ill? How are they attended in a box room? We would be getting into risk assessments in terms of the 2004 Housing Act, moving the ill person within the property may not be possible because of gender issues and rehousing would have to be considered, or a prolonged stay occupying a bed in a hospital (this may happen on another planet).

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