The Chartered Institute of Housing (CIH) has produced a guide document called the Practical implications of bedroom tax appeals in which it has (finally!) woken up to bedroom tax challenges and its guide in its introduction advocates landlords supporting their tenants to appeal when it says:
“You can use it if you are affected by the bedroom tax yourself and wish to appeal or to help a tenant who wants to appeal.”
The guide itself is very tame and conservative and misses many key points, in fact two very critical points which I come on to below and is a total about face by the CIH who used the pages of Inside Housing back in April 2013 to dismiss my promotion of appealing the bedroom tax in a cowardly and offensive and factually incorrect way. The article they had printed in Inside Housing back in April 2013 had a banner headline of “Housing bodies slate bedroom tax appeals” and above that had “Chartered Institute of Housing warns campaign may risk strong cases” and I have attached this at the bottom of this post as IH is moving to a subscription only service.
The fact they have now seen the light and are even advocating social landlords supporting their tenants to appeal is a huge change and a hugely positive change albeit two year too late.
It has always made sense for landlords to support their tenants to appeal though only a few enlightened social landlords I have worked with have supported and funded such appeals. The CIH guide perhaps unwittingly gives the answer as to how which is landlords are not engaging in politicking in supporting and funding tenants to appeal, they are merely supporting their tenants wishes. While that amounts to the same thing it avoids social landlords being seen to be politicking which is the excuse many have given for not doing so.
Landlords benefit from funding tenant appeals as when they win the HB is increased and backdated and arrears are often cleared and landlords do NOT have to reclassify the property or reduce rent level. Yet far more importantly social landlords are ‘buying’ goodwill which will pay massive dividends when direct payment of HB goes to the tenant and the tenants of the supportive landlord – the one who stood behind them to appeal the bedroom tax – keep the payment of rent as a high priority in return. There is much resentment by social tenants of landlords NOT standing behind them and from also bombarding them with red inked letters in the first year of the bedroom tax.
Unfortunately, the CIH guide does little to convince social landlords to support their tenants to appeal as it is unduly negative over appeals still AND crucially misses two very CRITICAL points.
On page 1 of this guide it says the tenant has “…two options to challenge a decision…you can ask the council to reconsider….(or) you can appeal.” This is factually and significantly false as the tenant has THREE types of challenge to any HB decision as a right and the CIH misses out the most important one – the tenant asking their council for a full statement of reasons as to HOW they made the decision.
This is critical in light of the UT ruling in the Fife cases which says at paragraph 54 the key phrase that:
“Parliament intended decision makers to take account of all relevant circumstances on a case by case basis”
When the tenant asks their council for a full statement of reasons, their council, the sole decision maker, cannot say they just took the word of the landlord which is what they have done with the 2013 and 2014 decisions. They have to consider ALL RELEVANT CIRCUMSTANCES on an individual basis. As the councils have not asked the tenant if they have any circumstances they cannot know whether there are relevant circumstances they have NOT considered in making the decision, which the UT ruling says they have to do and on an individual basis.
In March this year when the 2015/16 decisions land on tenant door mats the tenant needs to ask the council for this full statement of reasons as to HOW they made the decision. Remembering here that th UT ruling also said the landlords view is only a starting point and no more – the landlords description as to the number of bedrooms is not the middle or end point, merely just one pointer as to the number of ‘bedrooms’ a property contains.
The standard letter I drafted in March 2013 that was the subject of the CIH ire in the Inside Housing article of April 2013 said this would not work yet what it did was illicit responses from every council that they simply took the landlords word. This is an unlawful approach as the UT has confirmed by saying all relevant factors have to be considered on an individual basis and that the landlords word is a mere starting point and just one of many factor.
In short EVERY council confirmed in their responses to this letter – a request for more information and not an appeal as CIH errantly stated – was that they have confirmed by their own hand they adopted an unlawful and sham decision making process. So when asked this time in 2015/16 every council cannot merely say its up to the landlord and refer the tenant back to their landlord – the landlord is a third party and has nothing to do with the decision to impose the bedroom tax.
When the council responds with no doubt a standard letter confirming HOW they made the decision then a tenant should request a review stating for example the disputed room is not big enough to be classified as a bedroom.
The fact the CIH misses this critical statement of reasons request which is the absolute right of the tenant shows how little they know of this area of work. The responses from each council will give just cause for the tenant to then request a review if they dispute a room is a bedroom on size or usage or any other relevant factor the council has NOT considered. Yes this will involve councils having to come out and measure room sizes and even make drawings of such rooms if they want to contend a disputed room is of a size to be correctly deemed a bedroom
The CIH guide then goes on with some sensible questions but unfortunately misses many more and while it cannot consider every variable this guide is very tame. For example it correctly refers to MA & Ors and the Court of Appeal decision in that yet fails to mention that one of the plaintiffs in that case, the Carmichaels, won at First-tier Tribunal on the very same grounds and AFTER the CoA handed down its decision. The FtT went against the CoA due to the individual facts of that case. The MA & Ors decision was a general not individual case and now the Supreme Court have confirmed they will be hearing it – something noticeably absent in this CIH guide.
The CIH also cite precedent on whether a person can occupy two homes which is very relevent when couples split up and share responsibility for children. However many cases are coming before FtT judges who realise that this precedent was set well before the bedroom tax ever materialised and so could not have foreseen the decision that they cant occupy two homes leads to parents not being able to have their children stay overnight and their children not able to see the ‘absent’ parent. This is bound to be an issue before the UT this year as the bedroom tax does deny parents and children in this way whereas before the bedroom tax it didnt matter as no deduction was made for the non spare room the parent needs for his or her children to stay over.
The CIH guide throws up the Bolton UT case as something of note for tenants to use at 4.2 yet fails to see how the UT judgment in the Fife case, a 3 judge panel when Bolton was 1, to all intents and purposes dismisses the Bolton judgment. The CIH guide is steering the tenant and landlords upporting tenant in appealing up a blind alley with this one.
Interestingly the CIH guide states at 4.4 that:
“However, where a room has a floor space of less than 50 square feet (which in the space standard is ignored) it is unlikely to be counted as a bedroom in any case.”
That is not hard and fast at all and can mislead though interesting that the CIH does not say who’s responsibility it is to measure a room and has hitherto denied any relevance to the space standard of the 1985 Housing Act. As a linked issue to that this week I received a letter sent 18 April 2013 from the then Housing Minister Mark Prisk to Ian Swales MP on behalf of his constituent which reads:
“At the end of the day, it is for social landlords to determine what constitutes a bedroom taking into account factors such as the space standard in s.326 of the Housing Act 1985”.
Of course the UT decision has proved the Housing Minister at the time the bedroom tax was introduced wrong on the up to the landlord element yet extremely interesting that the Housing Minister believed that all social landlords should not classify a room under 50 square feet as a bedroom per se which also now appears to be the CIH position too.
There are so many other tentative and incomplete aspects in this guide that I would bore the reader to death if I stated all of them: in short its a case of a little knowledge is a dangerous thing. Yet this CIH guide is welcome in that it sees them recognise the bedroom tax appeal and challenges and especially as it infers the social landlord should be supporting its tenants to appeal. If CIH had taken the same approach to years ago in January 2013 there would have been far more appeals and challenges to this pernicious policy.
The DWP admitted in a FOI response that they are challenging 211 bedroom tax cases that tenants won at the Upper Tribunal. The DWP is not contesting all cases it lost as 2 of the 4 Fife cases were not contested and I have been involved in a further 20+ winning cases at First-tier which the DWP is not appealing. There may well be 300 – 400 winning FtT cases nationally each saving the landlord (as well as the tenant) the average £777 per year bedroom tax or collectively about £230k – £310k or so per year.
Yet the savings are so much more than that. I have lost count of the number of tenants turning up on the morning of an appeal to show me a letter saying they have been granted a DHP. Some of those tenants having been denied many times before and some of those tenants never applied for a DHP at all!! Yes councils hen faced with a tribunal hearing have the ability to magic up a DHP for the tenant appellant even when they have never requested one. Additionally, many councils have when a tenant has appealed magically revised their previous intransigent position and agreed the tenant does in fact need a bedroom for an overnight carer.
Yet by far the biggest benefit in financial and good practice terms to social landlords is yet to come. The bedroom tax has driven a wedge between tenant and landlord and tenants resent that and they think far less of their landlords than before. In business terms that is hugely dangerous in light of the tenant receiving monthly as well as direct payment of HB which will undoubtedly be hastened on if the Tories remain in office after May.
The canny social landlord will see that supporting their tenants to appeal, funding their tenant groups to appeal on behalf of their tenants is excellent business sense that will pay huge financial dividends in the near future as well as restoring the good reputation every social landlord needs from its tenants.
The direct payment pilots showed 6.6.% of rent went unpaid whereas now that figure is about 0.5%. For every 1000 properties the average social landlord has the yearly income is just over £5m per year. For a small social landlord with 5000 properties it is £26m or so and 6.6% of that is £1.7m going unpaid compared to £130k per year now – a huge difference. Yet such a landlord being seen to be supporting their tenants will negate huge part of any such increase when direct payments comes around as they have shown goodwill in supporting their tenants and in fact they could easily take in £500k or more because f being seen to be support their tenants.
Re-read the CIH introduction again when it says “…or to help a tenant who wants to appeal” Then ask is there any tenant who would NOT want to appeal? All tenants despise the bedroom tax and with good reason yet to date they have had miniscule support in taking that option which is their right and their right against all decisions which have been imposed on a sham basis without councils taking any consideration of any circumstance let alone even considering the relevance of them.
The fact the CIH is suggesting landlords should support tenants to appeal and as a result many more will now be considering it. I ask them to consider the recent Bexley Heath bedroom tax decision which found a room of 68 square feet not to be a bedroom. That decision was not on overall size but was a room with a sloping ceiling that was also unbearably hot and the judge ruled not a bedroom on a range of such individual factors. An unusual and non typical property yes, but …if 1 per cent of social landlord (bed)rooms are untypical or have a sloping ceiling this means about 5000 properties have wrongly been hit with the bedroom tax – that is about £3.8m per year being deducted from tenants HB and about £7m to date less going to social landlords in HB.
I would also say that at least 5% of all social landlord properties have alleged bedrooms of less than 50 square feet of actual floor space and at £777 each time for 24,000 or so properties that 5% is we are looking at almost £19m per year wrongly deducted from tenant and landlord HB payments.
The above is not my saying I told you so or is it plug for landlords to engage my services in helping them do what CIH now say is right and I have always said landlords should be doing. All of the above arguments I have said many times before and what is different now is that the CIH appear to support the bedroom tax appeal and suggest that landlords support their tenants to appeal rather than ‘slating’ the bedroom tax challenge and appeal strategy I strongly advocated would work and has been proven to work.
A few weeks ago a CEO of a large stock transfer organisation was giving a speech as to the work they had done to support extra care and sheltered tenants that he costed at over £1m. He was asked by the audience why he had spent such a large sum when he didn’t have to do so. His answer was “…because it was the right thing to do!”
So is landlords supporting their tenants to appeal the bedroom tax.
UPDATE 20.00 – DWP has announced today that DHPs for this coming year will have a £40m cut in the HB circular S1 of 2015 – a 24% reduction. That should further spur social landlords into considering supporting tenants to appeal
Inside Housing article
Chartered Institute of Housing warns campaign may risk strong cases
Housing bodies slate bedroom tax appeals
The Chartered Institute of Housing and National Housing Federation have this week both cautioned against widespread appeals against the penalty.
This follows growing evidence of a grass-roots campaign to disrupt the controversial policy by mass appeal.
Sam Lister, policy and practice officer at the CIH, said: ‘The problem I have with this approach is that it gives the impression that this will work and gives people false hope.’
Mr Lister added that multiple appeals made using standardised letters may be grouped together and dismissed en masse. ‘This [approach] could slow down those cases where there is a reasonable prospect of success,’ he said.
A spokesperson for the NHF echoed this view. He said: ‘People should not be misled into thinking this will stop government cuts to their benefit.’
Under the policy, which came into force on 1 April, social housing tenants of working age with spare rooms have had their housing benefit cut.
Housing consultant Joe Halewood is urging all 660,000 people affected by the policy to write to their council using a standard letter asking for more information about their benefit decision. He is encouraging claimants to then appeal to a tribunal within a month. He claimed 180,000 people have already downloaded his template letter.
Mr Halewood said this will cause ‘chaos’ as councils won’t be able to cope with the administration costs or defend themselves at tribunal. A government impact assessment in June 2012 said that if 20,000 people appeal it would cost councils £4 million.
Websites including Combat the Bedroom Tax are also publishing appeals advice and the Unite union has offered the services of its advisors in London to those wishing to appeal.
Emma Cook, operations manager at the Birmingham Citizens Advice Bureau Service said it was recommending appeals when decisions have been based on incorrect information.