How councils unlawfully obstruct the bedroom tax appeal..and the ballsy tenacious tenant…and the inconsistent tribunal judges!

Local councils are acting unlawfully right across the country in obstructing the tenant from appealing the bedroom tax and unlawfully taking away their absolute right for these decisions to be reconsidered!

Here I report on another bedroom tax appeal win but a bloody remarkable one given the tenacity of the tenant and this correct decision highlights by contrast the outrageous and unlawful practices councils have widely adopted to deny the tenants rights to have their decisions reconsidered and obstruct the tenant from appealing to the tribunals.  Let’s start with the positives of this particular decision….

Birmingham, the second city, the city with over 11,000 bedroom tax affected households, finally gets a bedroom tax tribunal decision, and its a favourable one.Unlike my home city of Liverpool which had at least 650 cases by August this year from a recent FOI request I have yet to hear of any cases in Birmingham and there is little activity amongst any anti-bedroom tax groups that I am aware in the second city of England.  I doubt that’s strictly true as there must have been some cases but if so they have been so few and far between and I do get many decisions positive and negative sent to me directly from appellants.

This particular case has only had a decision notice (below) yet there is enough there to see what this case was about and its both unusual and contains some very noticeable issues, not least a tribunal judge who was well versed in the HB regulations and tribunal rules too which is sadly not always the case.

The tenant  took his own case and won and without any help other than a few emails from me but only in outline and the tenant doesn’t appreciate just how he has done.  A tribunal is a daunting anxious prospect for any tenant even when represented and as per usual the tenant is effusive in his thanks to me but seriously all I did was a few 2 minute emails and no credit is due my way. (Since drafting this the tenant has informed ho he went to CAB seven times without any help and spoke with Shelter and other organisations to be told its not what we do! – A common problem which deserves and will get a post all of its own.)

Here’s page 1 of the decision notice and page 2 is just the signature and issue date with no more wording

birm1

 

Points to note:

This was an appeal against the decision of March 2013 and so has taken 18 months to reach tribunal.  Yet it also involved the tenant receiving a Directions Notice in July 2014 which read “Your appeal may not be able to proceed.  This is because it appears to have no prospect of success.”  The tenant was given 21 days to submit argument else the case would have been struck out!  The tenacity of this tenant eh reader or is that the errant predisposition of tribunal judges? I merely gave the tenant some argument but as I say he deserves huge credit and all of it for what he has achieved here.

Paragraph 4 has some very interesting comments to note “…it was never intended…as a two-bedroom property. Accordingly it was necessary to change the usage…done with the knowledge and support of the landlord.”

This is a room usage issue clearly and very importantly a reasonable change for the reasons given and these were the facts at the time the decision was taken…”The Tribunal is satisfied that at the time of the decision it is a one bedroom property…

Yet in the Notice of July in which the Tribunal was minded to strike this case out it says

You have appealed…that you do not use the room your landlord has designated as a second bedroom as a bedroom. However, a room does not have to be used as a bedroom to count for this purpose as a bedroom. Further, I understand that in the past this room was in fact used as a bedroom

Many tribunal judges fail to consider that what a room is and how it is determined to be a bedroom or not is a question of fact and fact at the time the decision was taken.  They MUST do this and can only view it this way because that is what their remit is as set down in the 1998 Social Security Act and repeated in the 2000 Child Support, Pensions & Social Security Act and further reinforced in two statutory instruments of 2008.

A few judges have needed ‘reminding’ of that in cases I have took and yet many other cases I have seen have decisions which say you signed for a three bed 10 years ago and if the landlord relet this in 5 years time is would be a 3 bed.

fttremit

 

The above is the original 1998 Act cited and the amendment simply replaced the words “Appeal Committee” with “First-tier Tribunal” as is stated.  These decisions must have erred in law by considering what a property may be in the future and what the landlord may call a property in the future in terms of the number of bedrooms.  There is also a strong argument that what a property was described as 5 or 10 years previously at tenancy start is not necessarily the case when the decisions were made – as in this precise case.

They are two incredibly important issues and while some judges do have to be reminded of this it is also the tenant / appellants responsibility to assert and argue it. Yet not all tenants have the tenacity of the appellant here and he simply doesn’t realise how bloody well he has done – a point I will repeat and repeat!

Of course many councils do not know this either and persist in obstructing tenants from appealing with the you signed for a 3 bed its a 3 bed argument and / or it is up to the landlord – both of which are legal fictions. Some councils go even further when the tenant asks them to review a decision and they say we will not reconsider the decision unless your landlord reclassified – which is not only a legal fiction, it is the council denying your absolute right to a review and reconsideration.

That same tactic of attempting to refer the tenant back to their landlord also delays the whole process and some councils after advising tenants to do this then tell the tenant they are out of time to appeal when they are inevitably and rightly sent back to the council by their landlord.

A classic case of this errant position and legal fiction was drawn to my attention the other day on the website of Cardiff City Council when it says:

Some of my bedrooms are too small to use as a bedroom

When you moved into your home, it was on the agreement it had a certain number of bedrooms.  If you think this was wrong, and your home has less bedrooms, you should talk to your landlord. 

In very exceptional cases your landlord may consider reclassifying your home as a smaller property.  If your landlord does this, and reduces your rent, your claim will be looked at again and a decision will be made whether to revise your benefit.

I highlight just two parts of the above though the premise that you moved into a property due to the number of bedrooms it claimed to have is a highly questionable premise too.

Firstly Cardiff City Council says you should talk to you landlord and that is a nonsense as (a) the council is the ONLY decision maker and is free to choose to believe the view of the landlord or not.  Note well here that [20] of the A4/2012 HB circular says the landlord was not obligated in any way whatsoever to give the council any data for the bedroom tax decision.  So even the DWP know and admit that the determination as to the number of bedrooms a property has is NOT up to the landlord for bedroom tax purposes.  The CCC position assumes that the number of bedrooms IS up to the landlord which is a legal fiction.  Also check with the SI which enacted the bedroom tax which says the council MUST determine the number of bedrooms and that SI doesn’t mention the word ‘landlord’ once in any decision making capacity!

Secondly, the council say that only IF your landlord reclassifies the number of bedrooms that they will conduct you absolute right to reconsider the original decision.  The council simply cannot take away your right to a review or reconsideration in this way.  They are acting unlawfully in doing this.

What these two well known and incredibly common ‘techniques’ do is dissuade the tenant from appealing the bedroom tax and that is outrageous as well as unlawful practice by such councils.

Cardiff is by no means the only council to do this and many councils operate these outrageous and unlawful practices and still do so.  In the early days of the bedroom tax I reported that Cornwall and Coventry councils said there was no right of appeal whatsoever to the bedroom tax decision.  Yet within 24 hours of being named and shamed they both apologised and both amended their websites and letters – (although see Note 2 below which reveals that Cornwall Council still wrongly assert that the number of bedrooms and what a bedroom constitutes is up to the landlord.)

I could write thousands of more words on these outrageous ‘techniques’ being employed by local councils in seeking to deny the tenant right of appeal.  I could, but regrettably do not have the time, to check 340+ local council websites to see if they have these same obstruction techniques on their websites.

Instead, I am asking tenants from all over the country to check their own council websites and email me copies of letters in which their councils have said it is up to the landlord and / or you can only have your absolute right to reconsideration undertaken IF your landlord agrees to reclassify.

This matter has become a national scandal and one that needs greater awareness of and more importantly something done about it.  I will collate the evidence into some formal research and then look in detail at what is the best route to challenge.

___________________________________________________________________

NOTES

1) Here is a more subtle version of the Cardiff unlawfulness from Sefton MBC in Merseyside:

If you think we have used the wrong number of bedrooms in assessing your Housing Benefit please contact us immediately with details of the error so we can look into the matter and, where appropriate, correct it. Any query as to whether a room is classed as a bedroom will need to be directed to your landlord in the first instance. The council will ultimately determine how much Housing Benefit is paid

No, no, no!  What a bedroom is only for the council as decision maker and not for your landlord.  Sefton directed tenants on this path are sending the tenant on a wild goose chase and in doing so are by stealth reducing the tenants time in which to appeal…and with the intention of discouraging the tenant from challenging their decision by way of reconsideration and appeal

2)  Also interested in statements similar to this by Cornwall Council

There has been some discussion recently as to whether landlords should be changing the classification of their properties in relation to the Space Standards.  Cornwall Housing does have regard to the Space Standards in Section 326 of the Housing Act 1985 which are set for the purposes of defining statutory overcrowding.  However these standards are only in relation to overcrowding and do not determine what constitutes a bedroom, which is for each landlord to determine.  On occasions it is necessary for us to consider whether the size of the bedrooms meets a tenant’s needs but that is normally in relation to a situation when a family has outgrown a property and is seeking a move due to overcrowding.

Cornwall is assertively stating that what constitutes ‘bedroom’ is for the landlord to determine.  It is not and the ONLY decision maker who can lawfully determine what a bedroom constitutes is the council.  The landlord is not a party to the bedroom tax decision.

3.  A few months back I was asked to submit a permission to appeal a losing appeal which I did.  The Birmingham case above reminds me of that.  In the Statement of Reasons the judge said “It is clear from the evidence….was originally designed as a two bedroom flat, and would be re-let as such...”  Judge Fowler in the Birmingham case says this is not a relevant consideration.  One of these two judges must be wrong – and why bedroom tax appeals are so bloody frustrating!!

In the appealed case above (still waiting for a decision on appeal hence not referenced) the judge went on to say “It is for the Council to determine what is a bedroom and what it is not...” Which I agree with and has to be correct yet many councils are stating that it is up to the landlord and persist with this legal fiction.

Please email any findings from your council to me at joe@hsmonline.co.uk and let’s see how we can end this bloody outrageous farce.

UPDATES

Norwich City Council in their published FAQS say:

Who decides how many bedrooms are in my property? Your landlord will tell Norwich City Council how many bedrooms are in your property.

It’s up to the landlord according to Norwich!

 

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11 thoughts on “How councils unlawfully obstruct the bedroom tax appeal..and the ballsy tenacious tenant…and the inconsistent tribunal judges!

  1. These are the same tactics being employed in Telford & Wrekin. Many tenants have been told they cannot, or have no case, when it comes to appealing against the bedroom tax.

    T&W Council insist it is ONLY the landlord who can measure the rooms, except for when it is being used for ‘Overcrowding regulations’. The council say that it is not up to them to conduct any room measuring. They also state that small rooms are not exempt from bedroom tax. If a bed can go in it then it’s a bedroom, regardless of size or usage.

    My landlord has adopted the same attitude as the ‘legal eagles’ who acted for the DWP. If it is only big enough for a bed then it is a bedroom. Cupboard space, etc is irrelevant.

  2. My council sent out the decisions in March 2013 without any reference to rights of appeal. I tried to appeal and told them that they should be informing all tenants of their appeal rights. They flatly denied that the bedroom tax decisions had any appeal rights and it took me nine months of constant badgering for them not only to concede that I could appeal, but agree to send out letters to all 3000 plus tenants affected by the bedroom tax advising them that they could actually appeal.

    Unsurprisingly, after they had been telling people for nine months that they could not appeal, very few people actually appealed when the letters were sent out i February this year advising of appeal rights. I sent a FOI to my council a few months back and they said they had received only 7 appeals in total and none of them had been sent to tribunal.

    A couple of days ago, over 18 months after I initially atempted to appeal, my case finally made it to tribunal. I beleive I was the first person in my city to make it to tribunal with an a appeal and I am pleased to say I was successful, although inevitably there is a high possibility that the council will appeal the decision to UTT.

    It just highlights how obstructive some councils can be and the lengths they are prepared to go to, to allow appeal rights to the people they allegedly serve.

    Thanks Joe for help and guidance you gave me in the initial stages of my battle with my council.

    1. The other “trick” I’ve heard about anecdotally via facebook is that when asking for an appeal, the council instead of forwarding it to the real appeals system just internally “review” and produce a bog standard letter saying “we can’t change it/its up to the landlord” (as stated above by Joe) which makes it seem as if an appeal has been unsuccessful; when in fact the council has not taken/forwarded an appeal.

      Now it might be the case that appeals have to be done in a specific manner and writing to the council requesting one is the wrong way to do it (as they might not be able to lodge/forward/recognise the appeal, I’m unsure of the legal procedure) but the letters are very misleading if that is the case and all that has been done/is allowed to be done is an internal review with the bedroom tax victim having to actually fill and lodge the correct paperwork to the FTT not the council then the council not stating this seems “iffy” even if it has no legal requirement to explain the process, or that a process exists.

      Joe, it may well be that you have outlined the procedure that people need to take in a step by step guide but it would useful if such an artical exists to have it reposted, or a link to it, or if not then one written if you have the time… a simple “which forms, who to send it to, do you need to try the council “review” first before moving forward to FTT… what to do next… etc.”

  3. Joe,

    Another for you from an email received today from Ashford Borough Council!!!

    ‘Mrs xxx has already appealed the under occupation charge, we are unable to
    change this decision and a Tribunal judge is bound by the same Government
    regulations as the Local Authority.

    Yours sincerely
    Mrs Holliday
    Benefits Officer’

    Oh what fun I will have with this Council!!!

    Juliet – ReClaim

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