Does the Upper Tribunal says EVERY bedroom tax decision was unlawful? Yes!

Is every single bedroom tax decision wrong in law and does every single bedroom tax affected household have legitimate grounds to appeal it?  I posed those questions almost 2 years ago and was accused of talking nonsense and of stirring up a direct action campaign.  Yet that is what the Upper Tribunal lead case decision says – I was right all along and that the bedroom tax decision-making process is and always has been an unlawful sham and ALL decision made are official errors or unlawful.

Remember I drafted a standard letter which was downloaded over 200,000 times which asked your council how they made the bedroom tax decision with 6 questions.  The answers to those confirm your council made official errors / errors of law in making the original bedroom tax decisions by not defining bedroom and by simply choosing to believe the myth that a bedroom is up to the landlord.  EVERY council said we don’t have to define bedroom and it is up to the landlord!  Oh dear as this UT lead case has said they are errors of law and that all decisions made this way are unlawful.  (And I can’t help smirking that all councils have confirmed their sham and unlawful decision-making in their responses!!)

The UT lead case decision does mean that every one of the 471.887 or so decisions to impose it are legally fraught and this is one God Almighty mess.  The chair of the 3 UT judges have tried to be too clever by half and succeeded and the judgment opens up the route for every single bedroom tax household to appeal the ORIGINAL 2013 decision.

A few months back a former HB appeals officer and a very knowledgeable person in this area said to me that if the original decision included an error of law / official error then there is not time limit on requesting a reconsideration or review of that decision.  He was referring to the HB Appeals & Decisions Regulations 2001 and part 2 (4)(2)(a) which says:

Therefore, it is strongly arguable that all decisions made to impose the bedroom tax contain official errors (the sham decision-making process) and every bedroom tax household can and indeed should be asking their council to reconsider the original 2013 decision for which there is no time limit.

Yes I did say the original decisions made in 2013 right back to the beginning and that is how inept this purported lead case decision is and below I explain how I come to this conclusion below with no apologies for its length and I start with the original question I asked myself.

Where does the shambles of the Upper Tribunal bedroom tax decision leave the sham of the policy in terms of challenge?

The first and obvious impact is we are stuck with this shambolic decision until the general election in May 2015.  There is no time for this to be appealed, though it should be, or for any other purported lead case to be heard ahead of next May. I could draft reams of why this is a political decision which it is; or why the judgment itself is a pig’s ear, dog’s breakfast or indeed and elephant’s arse and legally ripe for appeal, which it is; or ream upon ream on emotive or moral grounds or a rant; yet we are stuck with it and so the only issue is where do we go now in terms of challenging the bedroom tax decisions.

Many were hoping for and excepting the UT to rule out any room of less than 50 square feet as being a bedroom.  They didn’t say this yet perversely did in some respects and given their remit was to look at what is a bedroom in terms of size and in terms of usage the decision is puzzling and as I have argued here perverse and error strewn.  Giles Peaker of Nearly Legal gives his usual solid analysis here and there is one issue that I would go much further than he does in terms of challenge.

Giles’ last few paragraphs ask two questions and the same two questions I asked back in January 2013 when I asked what is a bedroom which the UT themselves say is the central issue in law at paragraph 3.

1. Does this mean the council would have to investigate any disputed categorisations which he says yes!
2. Would a decision-maker’s failure to give adequate reasons for deciding on disputed room be a ground of appeal, which he also says yes!

I would add significantly to both those questions and argue that this perverse UT decision does not realise what it has said and done with this shambolic judgment as from their own articulation and wording the cat is very much amongst the pigeons with what they have said.

Note well that I argue here that these two points are also linked and ‘decision-maker’ is not just the First-tier Tribunal judge but also refers correctly to the council’s decision-maker in each HB department.

1. Council to have to investigate any disputes?

Yes they do have to and this opens up a huge number of challenges and to the original 2013 sham decisions made by every council.  The judgment says the council decision-maker has to assess each case on an individual basis for the two side of the equation these being (a) the number of bedrooms each household is entitled to, and (b) the number of bedrooms (however defined) the property has and both, crucially, on an individual basis.  In short (a) is the bedroom need and (b) is the bedroom number.

It is also important to note I have thus far used the word ‘challenge’ and not ‘appeal’ as a formal legal appeal to the tribunal is only one of the challenges open to the affected bedroom tax tenant under HB regulations.

That tenant can ask their council decision-maker to review the original 2013 decision claiming that decision was based on errors of law and there is no time limit for a review on the original decision if it is made with an error of law unlike an appeal which has absolute time limits, and the UT decision says that councils did make errors of law in simply choosing to believe the word of the landlord.

The UT judgment suggests strongly that each council decision-maker has, on an individual basis, to determine the bedroom need and the bedroom number and is mandated to do so before it can levy the HB deduction or bedroom tax.  Regulation B(13)(2) says this clearly and her I give the view expressed in the Statutory Instrument which enacted the bedroom tax in order to avoid the chronically bad articulation in this judgment.

Regulation B13 makes provision for the calculation of the maximum rent (social sector). The local authority must determine how many bedrooms are necessary for the claimant’s household, in accordance with the criteria set out in paragraph (5), and how many bedrooms the claimant has. The local authority must then determine the claimant’s limited rent.

A FtT judge in Newcastle recently said the same that the councils (the benefit authority in the UT decision) have a duty to establish the bedroom need, also to establish how many bedrooms the property has and THEN, but only then decide whether to impose the HB deduction or bedroom tax.

  

While the UT decision does not say in so many words that this is a statutory duty upon councils to do this there is little room for any other interpretation. The Nearly Legal view also says much the same in that councils can’t do what they actually did out of expedience in merely believing the word of the landlord.  Yet as we know when tenants have lodged disputes councils send the tenant off on a wild goose chase and say go back to your landlord – as they don’t want to go the cost of going out to inspect.

Yet this judgment says they do have to go out and inspect and they cannot simply believe the word of the landlord – Proverbial and fan.

That also means that every council who did (a) choose to merely believe the landlords classification of the number of bedrooms have erred in law and (b) the original decision they made were made with errors of law.

All tenants would be well advised to ask their council to review the original decision citing they maintain it was made with errors of law and hence there is no time limit on this. Cue further proverbial hitting the fan and cue huge additional cost for local authorities.

I was looking back at some of the many (far too many) blogs I have put out on the bedroom tax and I said all of the above procedural issues back in January 2013 before the bedroom tax came in and they all focused on the sham decision-making policy or HOW the bedroom tax decision was made.  I also drafted a blog entitled all 660,000 have legitimate grounds to appeal based on the sham decision-making procedures councils followed which is here and again the UT decision says much the same.

What this UT decision does is confirm my long stated view that the way councils made the decisions, the sham of HOW they made those decisions means they were made in error of law.  That is why I drafted the ‘standard letter’ which tenants downloaded in hundreds of thousands which specifically asked the councils HOW they made their decisions.  Those responses prove by their own hands that councils acted unlawfully by simply believing the word of the landlord because it was expedient for them to do so.

It caused a bit of a furore when I said all decisions were unlawful and when I also said all have legitimate grounds of appeal which many said was a mere direct action stunt.  It wasn’t then and as this UT decision proves it most certainly isn’t now!  Yes I was right all along and HOW the decision were made, the sham decision-making process was a legal sham and is ripe for appeal by every bedroom tax affected household.

All bedroom tax households, that’s every single one of the 471,887 bedroom tax households at the latest figures should be asking their council to review the decisions taken in 2013 as those decisions were made with errors of law in them.

So WHAT does the UT decision say:

After rejecting the posit of the DWP that a bedroom is a single bed surrounded by 4 walls with an outward opening door and for which the tenant would have to jump onto from a passage as absurd:

[34] “…it is necessary to make a properly informed decision on what is and what is not a bedroom for the purposes of the regulation.  This is because it points the way to what needs to be considered in connection with size and the other matter involved.”

Then at the last paragraph of [54] of which real note needs to be taken:

“We also agree with the Secretary of State that the choice by Parliament of a test using an undefined familiar or ordinary English word supports the view that Parliament intended to allow decision makers to take account of all relevant circumstances on a case by case basis.“

Decision makers here means the Housing Benefit Officer of each local council who made the bedroom tax decisions (and of course all those private companies such as LDL and Liberata who administer HB on behalf of councils).  They have to consider ALL RELEVANT CIRCUMSTANCES  and consider them on a CASE BY CASE BASIS and not on a general sweeping fettering of discretion in choosing to believe the landlords view and choosing to interpret the HB regulations as meaning what is a bedroom is up to the landlord which is a legal fiction and error of law.

2. Adequate Reasons

If the Fife statement of reasons given by Judge Collins are inadequate and don’t fully say why he arrived at his decision then every statement of reasons I have seen – which is pushing 200 – are all inadequate too.  All FtT judges will recoil in horror at this part of the UT decision as it means they will have to write tomes explaining precisely why they came to the decision they did!

Yes the tribunal judges will respond in horror at this ruling for that reason and that is another God Almighty mess from this perverse decision.  If you have received a statement of reasons and lost does that tenant now have a right of appeal or a right to have their case set aside due to an inadequate statement of reasons?  Yes another mess!

This is also a huge further mess for councils too. One of the three challenges to each decision is asking for a statement of reasons from your council (with review and appeal) and that was the purpose of my standard letter I refer to above that was used nationally to begin the appeal process.  Those statement of reasons merely say – and confirm the unlawfulness of the sham decision-making – that what a bedroom it is up to the landlord.

When all households now ask their councils to reconsider and review the original 2013 decisions as the claimants maintain those original decisions were made in error of law, which they were, councils are also deep in the brown smelly stuff as their previous statement of reasons confirm they acted in error of law.

In summary when I said in my first two posts that the UT decision is perverse and is an elephant’s arse (not merely a dog’s breakfast or pig’s ear) and when I say the ruling is full of contradiction and frankly inept and the judge has tried to be far too clever by half…..I was merely underestimating just how bad this decision is.

Go back to those standard letters sent out in early 2013.  What did your council say in return?

• There is no definition of bedroom we don’t have to define? – Error of law
• It is up to the landlord? – Error of law
• Go back and ask your landlord – Error of law
• We will only review if the landlord reclassifies? – Error of law

Yes reader your council and that means every council across the country all used the above excuses as simply choosing to believe the landlords word was the cheapest option for them – and they are all errors of law as part of what I have said all along, that the decision-making process was a sham.