Well before the bedroom tax started in April 2013 I said that the widely held notion that what is a bedroom is “up to the landlord” was a legal fiction – or if you will a load of boll*cks. The Upper Tribunal decision in the Nelson cases from Fife confirmed this in two key paragraphs:
At  the UT says:
We agree with the Secretary of State that A starting point for determining how the property could be used and thus the number of bedrooms it contains is the description by the original and later landlords when letting it. This could be the tenancy agreement or marketing material….But we do not agree that this description is more than A starting point…”
In other words it is a pointer, ‘a’ starting point and not ‘the’ starting point. The use of the indefinite article (‘a’) on both occasions means the tenancy agreement is a starting point and is one of many; whereas THE starting point is the definite article and means it is the ONLY starting point.
Para  goes on to say it is a starting point but no more than this, so it is not the end point and with nothing in between, it is just a mere starting point and one of many possible starting points.
Yet landlords and councils and the great and the good of social housing have maintained all along that the tenancy agreement is the be all and end all. You signed for a 3 bed its a 3 bed etc. Take this example by Knowsley Housing Trust which is still on their website today some 3 months AFTER the Upper Tribunal said it is nonsense:
I have highlighted the relevant legal fiction, or bollocks, that KHT is still informing its tenants about the question of what is a bedroom. This also means that KHT (and so many other social landlords) have been actively dissuading their tenants from appealing the bedroom tax with this false information.
To return to the Upper Tribunal decision not only did it say that what is a bedroom is NOT up to the landlord they also confirmed something much more important that I have always said from day one – that the bedroom tax decision making process adopted by EVERY local council decision maker was unlawful!
At  the UT says:
“…Parliament intended to allow decision makers to take account of ALL RELEVANT CIRCUMSTANCES on a CASE BY CASE BASIS.”
Yet as we know every council has quoted paragraph 12 of the HB circular A4 of 2012 that has become known as the bedroom tax guidance which said:
I said this here and here and here (and a dozen more cases) and noted at all times that paragraph 20 of the same HB circular A4 of 2012 says that the landlord does not have to give the sole decision maker, the council, any information at all!
Just HOW anybody could possibly believe that the definition of a bedroom is up to the landlord when the above paragraph 20 says that even Iain Duncan Smith and the DWP accepted in drafting the above that it could not POSSIBLY be up to the landlord beggars belief!
Yet it did not stop the National Housing Federation from saying it is up to the landlord!
This piece of hokum, legal fiction or absolute bollocks or whatever you care to term it is still on the Nat Feds website here
Then again the Chartered Institute of Housing were no better and also said here and arguing against me specifically that what is a bedroom is up to the landlord AND that councils are perfectly right to rely on this which of course the UT decision says is not correct
The term bedroom has been undefined to give authorities wide discretion. This is helpful for landlords and benefit administrators, but the downside is that it will make it very difficult for challenges to be successful. As long as the authority’s decision for deciding that a particular room is a bedroom is reasonable, judges will not overturn it. Reasonable here only means nominally reasonable (i.e. not wholly irrational), it does not have to be the most reasonable judgement they could come to. So if the authority decides to use the landlord’s data then that will be accepted in almost all cases.
Correct CIH…oh you forget to say accepted by the local councils but just missed out that little legal issue that such an approach is unlawful!
Here is what a range of councils said when asked about this by tenants from early April 2013:
Oh dear – Bury wrongfully state it is up to the landlord see point 2 above and at 3 they compound this unlawful sham by sending the tenant back to the landlord who yes (all together now) IT HAS BUGGER ALL TO DO WITH!
How about Liverpool City Council?
The last sentence is also wrong as a council IS required to define what it and is not a bedroom as para  of the Upper Tribunal ruling says so. They have to consider all relevant circumstances IF the tenant disputes the decision. (I will come back to this below and why this could cost Liverpool City Council about £4.6 million in the next few months too!)
How about our old friends in Knowsley Council?
Oh dear and see points 4 and 5 above – Knowsley Council giving the old lie that it is up to the landlord
What about Wirral MBC (also in Merseyside)? – Yes you’ve guessed it….Oh dear!!
As you can see in point 1 is the same up to the landlord bollocks / legal vice / nonsense and again means that ALL decisions taken in Wirral, like every other council, are wrong in law as they failed to take into consideration ANY circumstances other than the landlords view, never mind any other RELEVANT circumstances and never mind dealing with each individual claimant and tenant on a CASE BY CASE BASIS which is what the Upper Tribunal have said is the law here.
Of course this is not just limited to Merseyside local authorities and I have copies of almost every LAs responses to the standard letter I drafted asking how they made the decision. For example here is Norwich and we see the same old bollocks and legal fiction that they believed it was up to the landlord as stated in points 1 & 2.
Also as we now know Norwich’s assertion that it is up to the landlord is in accordance with the legislation is….yes…. bollocks as it always has been given landlords did not have to provide any data and also because a landlord is not a ‘party’ to the HB decision which is between claimant and local council HB department as is clearly stated in HB regulations and in Tribunal governance.
Why ALL local councils made these unlawful decisions is because to do the job correctly – and by correctly I mean what the UT ruled – taking into consideration ALL relevant circumstances on an individual basis would have cost them money. So instead ALL local councils shafted the social tenant and chose to impose the bedroom tax deductions based on the legal fiction – and bollocks!! – that what is a bedroom is up to the landlord.
The UT case concerned the Nelson brothers from Fife. As you will recall the judge in this case allowed 2 other appeals that day which the DWP did NOT appeal and one of them was AHG. AHG lived in what was a converted manse and allegedly a 4 bed property which the tribunal correctly ruled was only a 1 bed.
What is particularly interesting in this is when I announced this case and it was subsequently posted on the Nearly Legal website here. NL disagreed with my view in this case and specifically on the ‘up to the landlord’ issue as the comments reveal.
In the comments I said: ( joehalewood 08/09/2013 at 6:07 pm)
Councils – this judgment in the reported opening remarks says the council didnt even bother to inspect. It then goes on to pay plenty of regard to the pictures of size and argument around that which says strongly that in a disputed case the councils really must go out and inspect. The cost pressures that will have for councils is significant.
NL agreed with my arguments as to the primacy of individual fact but did not like the view that councils must go out and inspect:
I don’t think it suggests there is any responsibility for Benefit authorities to go and inspect, even in cases of dispute. I looked carefully for such a suggestion and it isn’t there. You and I might think that would be a good idea, but then the Authority has nothing to go on in terms of what would be a bedroom. No criteria at all. And this case doesn’t offer much in the way of transferable criteria either.
The interesting thing here – and I agree with you – is that it opens up the FTT and UT developing a working definition of ‘bedroom’, albeit piecemeal, on the facts of each case.
Sometimes I have been wrong and sometimes Giles has and that is to be expected given the huge uncertainty deliberately and directly created by the abject refusal of the DWP to define the term ‘bedroom.’
The rest of the comments sees myself and Giles disagreeing on up to the landlord question in this debate from September 2013 and we both may appear stubborn in holding our ground as I say it must be the councils role to go out and inspect and he says no it can’t be. Then we see another commentator give this:
Council’s haven’t got the resources to go out and inspect? Fully agree.
And as NL says they’re not obliged or empowered to do so… This is the main point of disagreement at the time as to whether councils have to go out and inspect which I held they did and NL said they did not.
Now go to the NL comment on the Upper Tribunal decision of the Nelson cases which set the legal precedent and we see he says:
“IF the landlord’s description is disputed, the Benefit Authority (local council HB dept) can’t simply rely on the landlord’s description…Cue HB decision makers with measuring tapes….”
This is a caveat so that if and when the tenant disputes the decision taken to impose the bedroom tax and they can simply say something as vague as I maintain room 3 is not of a size to be a bedroom and the councils HB decision makers will HAVE to come out and inspect.
That is what the UT ruled and what I have maintained all along that councils should have done in the first place but councils (and social landlords and CIH and NHF and others) have said was wrong. Well whooped for me – yet that is not the issue here – my being right and others wrong.
The real issue is as I have subsequently said after the UT Nelson cases that paragraph  of this legal precedent is going to cause huge cost and absolute mayhem for local councils.
“…Parliament intended to allow decision makers to take account of all relevant circumstances on a case by case basis.”
Big shouty red-inked letters are very necessary reader.
All everyone of the current 464,551 households hit by the bedroom tax has to do is write the following to their councils HB department when they receive the new 2015/16 bedroom tax decisions – which is any day now – is to say something as simple as I maintain room 3 is not big enough to be deemed a bedroom. Please review and reconsider your decision as is my right.
My local council is Liverpool (and I use them here for illustration as this applies to ALL councils)
They have imposed the bedroom tax on 9,325 households in the city and all based on accepting the word of the landlords. The cost to them of (a) arranging to visit a property; (b) going out to inspect and lets say measure; (c) if the room is not rectangular or square and say “L-shaped” produce a scale drawing that includes the positioning of inwardly opening doors including any built-in cupboards and any other design features; (d) considering whether the room is or is not a bedroom; and (e) sending that review decision back to a bedroom tax household – is not going to be less than £300 and probably closer to £500 per case.
9,325 lots of £300 cost to Liverpool City Council is a lot of money £2.8 million in fact and if £500 per case then it is £4.66 million. The cost to Birmingham with 10.710 cases, the largest number in England, at £500 per case would be £5.36 million.
Though personally a wry smile appears if this should happen in LB Waltham Forest, where the parliamentary constituency if Iain Duncan Smith resides, with 1,291 cases of the bedroom tax having to be reviewed at a cost to the local council of circa £650,000 – AND Chingford constituency is also partly in LB Redbridge with a further 557 bedroom tax imposed households and a further £278,000 making about £828,000 in ADDED costs to IDS’s local council.
This would become a direct action protest that can happen right across the UK and so it should.
As I have maintained all along local councils – the ONLY decision maker in the bedroom tax – CHOSE to impose it on the vulnerable social tenants because to do it properly as hey should have done in the first place would cost the council money. No doubt they were shafted by central government in this but they STILL chose to impose it willy nilly and as a blanket policy – not a case by case basis – and without ANY consideration of ANY possible relevant factors….because it would cost them.
Well the UT decision has now come back to bite ALL councils well and truly on the arse hasn’t it?
Local councils deserve to face massive cost in this for subjecting vulnerable tenants to the horrific life changing consequences the bedroom tax creates for those men, women and children they well and truly shafted with their unlawful decision making processes. Just to finish on that point 464,551 households with an average 2.3 people per household – that is over ONE MILLION men, women and children local councils have shafted for two years.
LOCAL COUNCILS FULLY DESERVE to have every single bedroom tax decision challenged and asked to be reviewed and cost their local councils a fortune. When they do this and when these same local councils come back and say no – after they have HAD to go to the cost of inspecting – come back here and find out how to appeal those decisions to the tribunal because reader, rest assured, even though your council has to CONSIDER ALL RELEVANT CIRCUMSTANCES to comply with the law, they wont because they once again will try to cut corners and cut cost and once again they will make unlawful and sham decisions.
Yes reader a bit long but hopefully worth it. Now who’s up for a bit of awareness raising for social tenants in Chingford?
Apologies dear reader I forgot to include the unlawful guidance that our old friend IDS sent out in September 2013 in the HB circular U6
This was IDS and DWP knee-jerk and wrong in law reaction to the original Fife cases and says it is up to the landlord – “…the ONLY consideration should be the …number of bedrooms as designated by the landlord…”
And the IT ruled that the same decision makers IDS sent this URGENT bulletin to “…consider ALL relevant circumstances on a case by case basis”
Oh dear we don’t need to play a game of spot the difference here do we reader?
PS – I will in the next week or so say, in detail, why at a conservative estimate 15 – 20% of bedroom tax decisions which is 45 – 70,000 or so are wrong in law which also means the despicable local councils who make these decisions have unlawfully deducted between £37 and £56 million per year from some of the poorest members of society.
It is payback time!