- What is a bedroom is up to the landlord!
- How many bedrooms you have in your property is up to the landlord!
- You signed a tenancy agreement for a three bed so its a three bed!
- The guidance says what is a bedroom is up to the landlord!
- You have no right of appeal to the bedroom tax decision!
- Go back and ask your landlord to reclassify!
Bollocks, bollocks, bollocks, bollocks, bollocks and bollocks. All of the above 6 typical responses from all councils to the bedroom tax tenant are bollocks so when you read such terms below such as legal fiction or legal vice or just unlawful below, they all mean that Old English word which predates Chaucer …. bollocks!
This is extremely significant for the new bedroom tax decisions your council will issue in around 7 weeks time in early March 2015 and the UT ruling gives the green light for ALL bedroom tax tenants to challenge this decision.
The Upper Tribunal bedroom tax case which sets precedent and all councils must follow said:
“Parliament intended to allow decision makers to take account of all relevant circumstances on a case by case basis”
The ONLY decision maker is the HB department of your local council. Your landlord is NOT a decision maker, even if you have a council landlord, and in fact, the bedroom tax decision has absofuckinglutely bugger all to do with your landlord. I trust that point has been made abundantly clear as it is of huge importance.
All relevant circumstances on a case by case basis?
How can any council know whether the tenants individual circumstances are relevant or not if they have no idea what those circumstances are?!
I have always maintained that every single one of the original bedroom tax decisions were unlawful and I further maintain the UT ruling in the Fife cases confirmed that with the quote above. It is NOT up to the landlord at all and cannot be and I said two years ago and still say now every bedroom tax household has legitimate and just cause to challenge the bedroom tax decision.
Please read again this post from April 2013 entitled “Council responses confirm their unlawful approach”. This was one of a number of blogs I put out that detailed councils responses to the six questions in the standard template letter which all asked HOW councils had come to these decisions.
I received responses from all over the country and EVERY council made unlawful decisions. Let me repeat that – EVERY council made unlawful bedroom tax decisions. Let me repeat that in big shouty capitals in garrish red ink
EVERY COUNCIL MADE EVERY BEDROOM TAX DECISION UNLAWFULLY
Excuse the hammering home of the above points as to the legal fiction of councils maintaining what is a bedroom and how many each property has is up to the landlord and that councils could and did choose to make unlawful decisions by accepting this nonsense because it was cheaper for them to do so. All the bedroom tax decisions were made using a sham process yet many tenants and landlord and councils find this hard to believe as those myths and legal fictions have become a case of tell a lie often enough and people believe it to be true.
Why am I raising this?
NOT to say I was right and the UT ruling proved me right! Yes it is nice to be proven right but frankly I told you so gets us nowhere in getting rid of this pernicious policy and the unlawful way it has been implemented by local government only serves to make the policy worse. It is because ALL councils can no longer get away with these unlawful practices as the UT ruling says in unambiguous terms each council decision maker has to
- (a) look at the individual relevant circumstances of every case and,
- (b) cannot repeat the expedient sham decisions that they have made to date
The blog post highlighted above and one of many from two years ago gave council responses such as:
Bury Council responded with in relation to question 1 “A bedroom is not defined in the regulations.” Then in relation to question 2 with:- “The Council has taken the view that it is for the social landlord to define what a bedroom is and how many bedrooms there are in a property.”
Wiltshire Council responded by conjoining questions 1 and 2:-
“The word “bedroom” is not defined in the legislation. Wiltshire Council follows the guidance of the Department for Work and Pension (DWP) as set out on paragraph 12 of circular A4 2012, namely that it is for the landlord accurately to describe the property in line with the actual rent charged. In simple terms, we accept the information that we receive from the relevant landlord with regards to the number of bedrooms in each of their properties”
So in terms of operational practice we see just how wrong these councils got it – It is up to the landlord to define a bedroom says Bury! Oh dear! We simply accept what the landlord tells us says Wiltshire? Oh dear dear! Councils not only reveal by their own hand that they acted unlawfully we also have a record of HOW they make the bedroom tax decisions AND it will be for these councils to demonstrate that their policies in making the bedroom tax decisions have changed to respond to and comply with the UT ruling.
[Note I am not singling out Bury and Wiltshire, just using them as examples of typical practice by ALL councils]
So when the tenant asks for a full statement of reasons as to how the decision for 2015/16 was made the councils will have to demonstrate that they have changed. That is why tenants should, and hopefully will, bombard their councils with requests for statements of reasons.
Councils will also NOT be able to give the bedroom tax tenant the run around as they all did back in 2013.
Let’s look again at what all councils said at the time:
Wiltshire Council said:
With regards to a possible appeal, you cannot appeal against the legislation itself. If you believe that your property does not have two bedrooms, it is suggested that you take this up with your landlord in the first instance, as we have simply accepted the information that we received from them
Bury Council said:
“Where there is a dispute the customer will be asked to contact their landlord and provide the Council with written evidence from the landlord …”
Councils this time will not be able to adopt these deflection tactics that all assume what a bedroom is and how many bedrooms a property has is up to the landlord! Some went even further such as Redcar & Cleveland who said they will only review a decision – the absolute legal right of the tenant as claimant – IF the landlord reclassifies the property!
You may also recall that Liverpool City Council played the dirty tricks game by saying the tenant request for more information (the legal tenant right to a statement of reasons) was a chargeable FOI request and quickly changed their tune when I confronted them. You may recall both Coventry and Cornwall councils stating that the tenant could not even appeal the bedroom tax and again apologised and changed their tune when I highlighted this.
There is no doubt that ALL councils tried ‘dirty tricks’ and gave out false information and tried to dissuade as many challenges as possible by saying “it is up to the landlord” and other similar legal fictions. How many tenants were dissuaded due to this collective unlawful practice is a moot point.
Yet what is not in any dispute at all is that this year council will NOT be able to fob the tenant off with such unlawful practices, and councils will be bombarded with tenant requests for statement of reasons and will have to undertake a huge number of reviews of bedroom tax decisions.
Q) Dear Council, Please supply a full statement of reasons for your decision to impose a 14% bedroom tax cut as I am entitled to and within 7 days. Yours etc.
The above question is illustrative and your council must respond to this. When they do the tenant will be able to send a second letter demanding the decision is reviewed stating that the council has not taken into consideration all of their individual relevant circumstances.
Now imagine if the tenant keeps this vague and says I maintain the disputed room is not big enough to be deemed a bedroom (rather than saying it is xx sq/ft) or the disputed room is of an irregular shape or is unsuitable for Health & Safety purposes or is not fit for purpose or any other suitably vague reason. The council will almost certainly have to come out to inspect as part of the review that they have to undertake. – Note here that the tenant has one month after the completion of a review to lodge an ‘in-time’ appeal and not one month from the decision in March 2015.
Giles Peaker in his detailed overview of the UT ruling says much the same:
What is more, the decision maker will have to give reasons for deciding whether a room is a bedroom in all but the must obvious cases.
in most cases the decision maker’s understanding of the test and approach to its application in a given case is best provided by the reasons given for the decision (e.g. albeit in an obvious case it is a bedroom because it has room for two single beds and storage, good ventilation and either it has been or could be used as room in which two people have slept or could sleep).
Does this mean the Benefit Authority would have to investigate any disputed categorisations? I think it does. If the landlord’s description at letting is disputed, the Benefit Authority can’t simply rely on the landlord’s description, but has to come to its own decision. Clearly this has to involve investigating any grounds of dispute, so that the decision maker can give reasons for the decision. Cue HB decision makers with measuring tapes, preparing themselves to describe the elephant.
Would a decision-maker’s failure to give reasons, or adequate reasons, for deciding on a disputed room be a ground of appeal? Quite possibly so
In short the UT ruling does give the green light for bedroom tax tenants to challenge the 2015/16 decisions by way firstly of a request for a full statement of reasons and then by requesting a review – both of which WILL be hugely costly to every local council. These challenges WILL lead to an increase in formal appeals against the decisions being lodged too as every council cannot now use the six ‘legal fictions’ to dissuade tenants that I used at the beginning of this blog – the bollocks in other words.
Two years ago, in fact more as August 2012 was the first time I said tenants should appeal on HOW the bedroom tax decision as taken, I said the decision making process in the bedroom tax was a sham and gave just and legitimate cause for appeal. The UT ruling and precedent confirms that when it says all relevant factors on a case by case basis need to be considered by the council decision makers.
I also said then this sham process was an outrage. I have revise that view as it is absofuckinglute outrage that has seen local councils shaft the vulnerable tenant in this way and one that has seen 5,000 social tenants lose the roof from over their heads according to the (woeful) NHF report of last week. That is 12,000 men, women and children who have lost their HOME all because your local council HB officer made an unlawful life-changing decision to impose the bedroom tax based on 1 line in a spreadsheet as the graphic below demonstrates ALL that your council considered:
Yes 1 line in a spreadsheet and nothing more. 1 line from a landlord who did not have to provide any data whatsoever to your council. 1 line in a spreadsheet from a landlords asset register that has seen 12,000 men, women and children lose their home. 1 line that your local council outrageously decided was enough for them to make the decision they must have known would lead to thousands losing the roof over their heads and losing their HOME. 1 line that cannot possibly be all of the relevant circumstances on a case by case basis. 1 line that must be and the UT have said is unlawful and 1 line that your council CHOSE to say was lawful because it saved them money.
We are only doing what the government says we must said all the councils in their scurrilous excuse for their unlawful practice? The Upper Tribunal – the law if you will – has just proven that excuse was a load of BOLLOCKS.
In 7 weeks time the council HB officer’s bollocks will be in the hands of the bedroom tax tenant. Please squeeze as hard as you can!
The above is a follow up to a post of yesterday here and both need to be read to full grasp the issues ahead for the 2015/16 bedroom tax decisions