The Upper Tribunal decision in the Fife cases is starting to give some repercussions as I predicted and especially in relation to the basis of fact in how decisions were made. Fact in two respects.
Firstly in how local council HB officers make the original decision and also secondly, fact in how FtT judges have wrongly determined losing bedroom tax cases.
A case was lost at First-tier Tribunal that I applied to have set aside because the tribunal made errors and that decision has been set aside and is to be heard again as the decision was asked to be reviewed by me and the Tribunal decided:-
“…it contains a material error of law, namely the Tribunal has failed to make adequate findings of fact.”
It goes on to say:
“Size is not a determining factor but is a relevant factor which needs to be considered, along with other factors, when deciding whether a room falls to be considered as a bedroom..”
It then goes on to quote the Fife UT case from which the above is taken.
I can’t discuss the individual case here for obvious reasons but it is significant to each and every case and individual fact is paramount and it is all down to the seminal last sentence of paragraph 54 of the Fife UT decision:
“Parliament intended to allow decision makers to take account of all relevant circumstances on a case by case basis”
Decision makers means your local council HB officer and the FtT judges and they make mistakes and in the latter cases judges now know the council cannot just rely on the landlord’s word that a room is a bedroom and they have to investigate any disputed cases. Or, as I have always maintained, the line of “it is up to the landlord” is bollocks and always has been.
When I have argued that the new decisions for 2015/16 due in early March will create pandemonium for local councils, it is this premise of fact and councils having to take individual circumstances into account and decide whether they are relevant or not ill cause huge administrative cost for local councils. This set aside confirms for existing losing decisions it also presents opportunities to request those decisions be set aside as in this case as the Tribunals got them wrong too.
A linked issue to this is other Direction Notices received from Tribunals with regards to councils impeding or dissuading tenants from appealing the bedroom tax. Saying it is up to the landlord and we must accept the landlords word or other ‘dirty tricks’ such as Liverpool City Council stating a request for a statement of reasons is a chargeable FOIA request, right down to Coventry and Cornwall councils saying the bedroom tax has no appeal rights are all dissuading ‘dirty tricks’ as I have commented upon.
The Directions Notice from a Tribunal has asked for proof of such tactics and stated such tactics is
“a serious accusation. It borders on on accusation of perverting the course of justice.”!!
I fully agree yet the tenant is being asked for proof of every time this has happened. Only today I read an email sent to me which says:
Sefton council, who have fought against me taking my case to tribunal. However the judge ruled to grant my appeal and allow me a oral hearing where i can put my points of appeal to the judges directly. The appeal date is xx/xx/xx in Liverpool. The reason i am writing to you now is, i have had a call from Sefton council this morning requesting access to my property this afternoon at 2pm, which i have no problem allowing them in to measure the bedrooms, however he also stated that he will be bringing evidence from an upper tier tribunal with him, to show me i am wasting my time going to court on the grounds of room size and should drop my case now. Is he just trying to scare me off..”
So is this Sefton Council seeking to pervert the course of justice in one of its officers saying the Fife UT case ruled out size arguments?
It could be viewed that way and all tenants should be making a log of all such incidents as the perhaps ‘misinterpretation’ of the Fife UT decision if I am being overly kind to the Sefton Council officer here could prove very important indeed.
The fact that Sefton Council is calling up someone first thing of a morning saying they will be out that afternoon is yet another matter!!
Go back to the set aside decision I stated above:
Size is not a determining factor but is a relevant factor which needs to be considered, along with other factors, when deciding whether a room falls to be considered as a bedroom.
So when Coventry said a tenant has no right of appeal against the bedroom tax or Cornwall saying the same or Liverpool saying it was a FOI request or so many countless other councils saying it is up to the landlord, have they been acting tantamount to perverting the course of justice?