After the Upper Tribunal handed down its judgment in the Fife cases I reported on a winning First-tier Tribunal case in the London Borough of Bexley
You may recall I opened that post with:
A First-tier Tribunal has ruled a disputed room of 6.31 square metres – 67.93 square feet – is not a bedroom and very interestingly this is AFTER the Fife Upper Tribunal ruling AND the DWP will have one hell of a job overturning this at appeal.
I later included a reference to the Nearly Legal blog of Giles Peaker which agreed with my view that the decision is a correct and factual one and is unappealable and that can be read here
So, we have a tenant who has had a bedroom tax deduction wrongly applied since April 2013 and the council, the London Borough of Bexley like all councils simply took the landlords (London & Quadrants) word that the property had 3 bedrooms and not 2 bedrooms as the judge correctly and factually ruled. The council LB Bexley got it wrong and have wrongly been deducting the bedroom tax and now owe the tenant a fair amount of money in backdated Housing Benefit
A princely sum of £1934.83 according to the council letter I have seen.
HOWEVER…Bexley Council say in this letter we are deducting the sum of £1,345.71 they have given the tenant in Discretionary Housing Payments from this figure!!!
OH NO YOU DON’T!
The London Borough of Bexley is acting unlawfully in attempting this as the DHP is NOT recoverable in law. Bexley is trying it on and the Benefit Manager Mrs N Edwards has made an unlawful decision here.
The tenant should and will challenge this decision and I have stated here why a DHP is not recoverable in law and that is due to the Discretionary Financial Assistance Regulations which were made under S69 of the Child Support Pensions and Social Security Act and at regulation 8(2).
Now this should interest Akin Alabi who is the head of Legal and the Monitoring Officer for LB Bexley who should be advising Mrs N Edwards that she has made an unlawful decision and cannot reclaim the DHP and has exposed Bexley Council to further action.
It should also interest the Chief Executive of LB Bexley Will Tuckley (firstname.lastname@example.org) as his officers are acting unlawfully.
Similarly it should interest the Director of Finance, Alison Griffin (email@example.com) as HB sits in her department and it is her staff who are acting unlawfully.
It will also interest the Leader of the Tory dominated council, Howard Marriner (of all things a retired banker!) who is the Mayor of Bexley (firstname.lastname@example.org).
It will also interest the 3 local councillors of this tenant who again are all Tories in Christine Catterall (07717 223259) James Hunt (07958 330123) and Cafer Munur (07789 955044)
It will of course interest the Leader of the Labour Councillors Alan Deadman and also Daniel Francis, Shadow Cabinet Member Finance & Resources which must include the remit of Housing Benefit and Bedroom Tax.
The local MP, also a Tory, is James Brokenshire MP who has a legal degree to so imagine if a ‘twitterstorm’ was targeted at him at @JBrokenshire asking why his local Conservative dominated council (44 seats, Labour 15, UKIP 3) are acting unlawfully after making an unlawful decision in the first place!
The details as to why this is not recoverable is below yet no doubt the council will huff and puff saying this is public money and we do have a right to claim back the DHP and words to that effect. No no no!
The law says you cannot and if you hadn’t made such an expedient and sham decision in the first place and shafted this poor tenant for the best part of two years then you would have nothing to moan about would you?!
If you, Bexley Council had done what parliament intended and considered all the relevant circumstances on a case by case basis as the Upper Tribunal have stated you MUST then you would not have had to pay the DHP in the first place. But you didn’t do that did you? Instead you just made an unlawful and sham decision in this case and in God knows how many more cases amongst the 1005 other households you have merely imposed the bedroom tax upon in Bexley too.
If you had done your job correctly and lawfully in the first place you would have absolutely nothing to grumble about now would you?
A reminder of what the Upper Tribunal said? Oh ok then…
Parliament intended to allow decision makers to take account of all relevant circumstances on a case by case basis..
And you need reminding as to why Bexley Council cannot recover this DHP? Oh go on then…:
One final point concerns the landlord L&Q. The council is saying it will pay you the bedroom tax less the DHP which as you can see from the above is an unlawful decision. This means that you are complicit in accepting this too and you have no legal basis to agree to this as the bedroom tax that has been underpaid is the tenants money not yours. You do not have the authorisation in any way, shape or form to allow LB Bexley to take back the DHP which has also been paid to you on behalf of the tenant and you will need to consider the legalities of allowing the council to claw back the DHP in this way too. You, like any social landlord, cannot agree to give back the tenants money to the council without their express consent of the tenant. If you do then you owe the tenant that money still.
L&Q, who like all landlords claim to have a welfare team who act in supporting tenants to get all they rightfully deserve, can also put pressure on Bexley council for their unlawful attempt to claim back this DHP and score some good PR in doing so. I am sure L&Q do not wish to be seen as complicit with the unlawful actions of this or any council for that matter so it would only be right for your income manager that covers Bexley to be assisting your tenant and resisting this unlawful action from Bexley Council.
The tenant has struggled to pay the vast majority of her bedroom tax that was wrongly deducted and the council is wrong in law here and frankly trying it on and they cannot recover the DHP and will have to pay the full £1934 to her rent account and to her landlord L&Q. I trust that once received L&Q will not be tardy in paying back the very significant credit balance this will mean for this tenants rent account as that will then force a naming and shaming blog against L&Q. Conversely, should L&Q speedily make this considerable refund to the tenant I will only be too pleased to say so here.
Good or bad publicity is therefore up to L&Q !
Shame on you Bexley Council