Upper Tribunal says ALL bedroom tax decisions unlawfully determined

An Upper Tribunal decision handed down this week proves my long-held point that potentially ALL bedroom tax decisions have been unlawfully determined.

The UT decision said two incredibly significant and very important things:

1. The word of the landlord as to the number of bedrooms is just that and nothing more; the word or view or opinion of the landlord AND IS NOT DETERMINATIVE.

2. That each local council – THE SOLE DECISION MAKER – does have the discretion to decide the number of bedrooms and does NOT have to take the landlords word.

You signed for a 3 bed therefore it’s a 3 bed and the landlord says it’s a bedroom therefore it is are legal fictions in the bedroom tax. In lay terms that means both statements are false, untrue or if you prefer a load of bollocks – and a load of legal bollocks too!

Here is the Upper Tribunal decision:

This is the case of Mrs S and her 4 year-old son living in what the UT correctly describe to be a property with 2 bedrooms and a boxroom and not a 3 bedroom property as the HA landlord Tai Calon said and not as the council Blaenau Gwent said.  It is a property with 2 bedrooms not 3.

As you can from this Upper Tribunal decision which references the 3 Judge Panel (3JP) from the Nelson Fife cases and says:

“The 3JP decision makes it clear that the landlord’s designation is only a starting point and is not definitive”

Every tenant who has challenged the bedroom tax either by a request for further information, a review or reconsideration or by a formal appeal has heard their landlord and their council say “it is up to the landlord.”  This is legal nonsense.

Blaenau Gwent CHOSE, like all council decision makers, to believe this legal fiction that it is up to the landlord because to take the correct legal view in making the bedroom tax decision would have involved determining each and every case on its individual facts and would have (a) cost councils a fortune to do; and (b) would have revealed that social landlords have been charging a rent on a property that is smaller than those social landlords want to believe.

Instead and as a result tens upon tens of thousands of bedroom tax tenants have been unlawfully hit with the bedroom tax and many have been evicted because of the original unlawful bedroom tax decisions.

What the law says is that each case is decided upon the individual facts of each case which is also what the 3JP Nelson Fife case said very clearly when it says “…parliament intended to allow decision makers to consider all relevant circumstances on a case by case basis.”

The decision makers this refers to are every local council’s HB department and nobody else.  Yet we see again and again landlords and local council housing benefit departments (the decision makers) saying either (a) you signed for a 3 bed so that is what it is and or (b) your landlord says it’s a 3 bed so it is …..and there is nothing we can do!

Oh yes there bloody well is!  The benefit authority is THE decision maker and they DO have the discretion to say that a room such as this one, having 43 square feet of floor space with a L-shape is NOT a bedroom regardless of what the landlord says.

When an appeal goes to the tribunal, that tribunal becomes the ‘decision maker’ and takes over the role of the benefit authority as decision maker.  There is no doubt at all that (a) each council / benefit authority is the sole decision maker ahead of a tribunal; and (b) the Fife Nelson case saying that parliament intended decision makers to consider all circumstances on an individual basis means councils or benefit authorities as those decision makers.

There can be no doubt whatsoever in law that every local council has the discretion to say a property only has 2 bedrooms when the landlord maintains it has three.

Let me restate what I have always stated to be the seminal sentence in the 3JP Nelson Fife decision again at [54]:

Firstly, there is and can be NO DOUBT that the decision makers are the local council housing benefit department and, secondly, that they DO have the discretion to decide what is and is not a bedroom for HB bedroom tax purposes.

Very significantly indeed is what this Upper Tribunal decision means for the original decisions made ahead of bedroom tax implementation on 1 April 2013.  This ruling and binding precedent in saying that the landlords designation is ONLY a starting point and is ONLY the landlords view calls into legal question ALL original decisions.

HB regulations do allow unlimited time for challenging an original decision where the original decision has been made based on an error of law.  So when any local council has said we simply took the landlords designation that the property has 3 bedrooms that is a de facto error of law – and every council said this in response to my template letter I drafted back in 2013 and which every council was inundated by.

That standard letter which was downloaded over 200,000 times from my website asked each council to provide “3. A copy of the council’s written policy which states precisely how the council makes a bedroom tax decision”  They all received this typical response from ALL councils the length and breadth of the UK and here from Wiltshire and Bury on 9 April 2013 or 8 days after the bedroom tax began:

“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”

We accept the information that we receive from the relevant landlord with regard to the number of bedrooms in each of their properties…..is a de facto error of law in how each and every council determined the original bedroom tax decision.  HB regulations state that when the original decision was made using a ‘error of law’ that there is NO TIME LIMIT on requesting your council to REVIEW its original decision.

In simple terms and in response to my standard template letter every local council admitted by their own hand that they determined the bedroom tax decision unlawfully.  That is what this UT decision and the Fife Nelson UT decision means!

The failure to consider all relevant circumstances is another error of law and also allows every bedroom tax household to ask their council to review the original 2013 bedroom tax decision!

Of course it is only is there ARE relevant circumstances that the decisions will and can be changed, or simply, good reason why a room is not a bedroom – and this brings me back to the case of Mrs S above.

Her property has a “L-shaped” room caused by the bulkhead over the stairs leaving just 43 square feet of usable floor space.  The original decision maker – the council – said its a bedroom as your landlords says it is.  The next decision maker the FtT said as a matter of fact and law it is NOT a bedroom.  The final decision maker in the UT said the FtT was right and the room is NOT a bedroom.

In my home city of Liverpool there are streets upon streets of ex council houses with in reality and in law, two bedrooms and a boxroom with a “L-shape” created by the bulkhead over the stairs.  These were all built at the same time and to the same specification as councils houses were ….and… the usable floor space in many of these (landlord designated 3 beds!) the 3rd room / boxroom has 32 to 39 square feet of usable floor space,

Whole swathes of Clubmoor, Stoneycroft, Norris Green and surrounding areas in Liverpool have such rooms that the social landlords claim are bedrooms and which they charge a rent for a bedroom.  I would estimate across the near 10,000 bedroom tax hit properties in Liverpool that maybe 1500 to 2500 properties have such boxrooms.

Yet the system created by the blanket approach to bedroom tax decisions Liverpool took (itself an unlawful fettering of its discretion as well as an unlawfully determined approach) requires that each tenant asks for a review or an appeal and that is an outrage.

For 30 months all such tenants have gone without meals and be stressed to hell because their landlords wrongly insist they have 3 bedrooms and the council has decided it is cheaper in cost to believe the landlords word when it means nothing in terms of the lawfulness of the bedroom tax decision.

Dear Labour Mayor of Liverpool Joe Anderson.  You have constantly stated you are against the bedroom tax so is it fair that the system your council adopted which CHOSE to believe the word of a landlord sees (a) many vulnerable tenants hit by the bedroom tax in error of law and especially, (b) now having the onus on them to appeal your decision to get a correct and lawful decision?

No it is not and if your many utterances and interventions in the bedroom tax are to mean anything you must instruct your benefit authority to review ALL cases. The same goes for every council in Great Britain after this UT binding precedent says the landlords opinion is not worth a hill of beans in legal terms.

I spoke with Mrs S today over her case.  She has been served with a Notice Seeking Possession over the arrears created by the bedroom tax.  She informs me that her council, Blaenau Gwent did not pay the HB that the FtT awarded when they could (and should) have done and this is why the arrears have accumulated.  She informs me that her landlord has been bombarding her with red-inked letter and with calls and texts and emails over these now proven to be legally false arrears.

Mrs S also says that in mid December 2014 she answered a knock on her door.  It was a rent chasing income officer from her landlord Tai Calon.  Mrs S was told pay your bedroom tax as we wouldn’t want to see you and your 4 year old son on the streets at Christmas!

That is not the first time I have heard such a tale from a bedroom tax tenant.  I have been told of such practices dozens of times and in every area of the country…and all of this has come about because her landlord Tai Calon believes a boxroom of 43 square feet is a bedroom – or their greed and legal fiction.

Tai Calon – as all social landlords in similar cases  – are guilty of benefit fraud in charging a 3 bed rent on a 2 bed property.  The council Blaenau Gwent is an accomplice to that fraud in allowing it.  Collectively, social landlords are the biggest benefit fraudsters in the history of welfare benefit and local councils are in cahoots with them in allowing this.

Tai Calon have some very notable housing names in their senior management team and on their board including the former Chief Executive of CIH Cymru in Keith Edwards.  To his credit when Keith was at CIH Cymru he did say that the bedroom tax appeal has merit unlike his CIH England counterparts who shamefully ridiculed my idea of a mass appeal, then very belatedly in January 2015 did a U-turn and issued a bedroom tax appeal toolkit.

The actions of Tai Calon in this case -claiming a 43 square foot irregular shaped room was a bedroom is shameful and brings shame onto its management, its board and all associated with it.  I have said previously that Keith Edwards deserved credit for his open mind on bedroom tax appeals and the uestion he has to ask himself is does he want his good reputation sullied by the actions of Tai Calon?

Mrs S and her 4-year-old son have been put through hell to defend this benefit fraud of the landlord ably abetted by the council.  We wouldn’t like to see you and your son on the streets at Christmas is a phrase that encapsulates this right across the country for so many bedroom tax victims of this fraudulent policy.

Mrs S will now get back all the housing benefit unlawfully taken from her by Blaenau Gwent over the past 130 weeks of the bedroom tax that will be about £1600 or so in this low rent area.  Her 4 year old son has had £1600 unlawfully denied to him over the past two and a half years and to and a half years is outrageously how long it can take for a council and a landlord to do what they should have done in the first bloody place and do the decision properly.

I am now urging all 456,959 bedroom tax households to formally ask their councils to review the original 2013 bedroom tax decisions as they were all unlawfully determined as they were based on one if not two de facto errors of law in (a) the councils believed the landlord word and (b) the council said they had no discretion.

Councils liked to quote one part of the A4/2012 HB circular known as the bedroom tax guidance which says at [12] that “...it will be up to the landlord to accurately describe the property in line with the actual rent charged” as reason for their choice of the its up to the landlord position yet completely ignore [20] of that same HB circular which says about the number of bedrooms that “There is no obligation on landlords to reply to a request for information.”

As landlords did not have to provide any information to councils with regard to bedroom tax just how the hell could the decision as to the number of bedrooms be “up to the landlord!?”

The local council’s choosing to take this up to the landlord position was always legally fraught and a non runner.  They knew that too yet they CHOSE to adopt this line as it saved them a fortune in not making each bedroom tax decision a lawful one.  Now with this UT decision they have been found out in law to have acted unlawfully in every bedroom tax decision they made.  I have made those arguments since before the bedroom tax began.

There are tens if not hundreds of thousands examples of Mrs S and her 4-year-old son who have been shafted by unlawful expediency of local government and social landlords.  We can’t do this lawfully said councils it will cost too much so we will let vulnerable children suffer.  We have to maintain it is up to the landlord said social landlords and they too knowingly let children suffer.

That is why I am urging and advocating that the current 456,959 bedroom tax affected households all write to their council demanding a review of the original decision and also the same for all the many more households who have in the past been hit by the bedroom tax.

There will be families who have been evicted and made homeless because of the unlawfully determined bedroom tax decisions.  It could be 1 case or 100,001 yet whatever it is it is 1 too many.  To evict a child, just one child, because a council in cahoots with social landlords CHOSE to make unlawful decisions because it was the cheapest option is a national scandal and outrage.  It is unforgivable.

Even before I drafted and freely circulated the standard template letter to challenge the pernicious bedroom tax policy I said forcefully and stood my ground consistently against the naysayers who said I was wrong to say all bedroom tax decisions were unlawfully determined.

I was right all along as this UT case proves.

So if you really want to get rid of the bedroom tax it is time to take action and insist your council reviews your original 2013 bedroom tax decision-making sure they fully consider all relevant circumstances and on a case by case basis because they CHOSE to err in law in making such a shoddy and unlawful job of it first time round!

Finally, this legally binding decision may well have come at an opportune moment.  This week is the Labour Party conference and (a) they did oppose the bedroom tax (belatedly) and vowed to get rid of it; and (b) Corbyn as leader will have all welfare reform issues thrust at him by the largely right wing media this week.

Here is a gift horse as the higher courts have said that the bedroom tax decisions were unlawfully determined so not only is the policy ‘pernicious’ which is the adjective of choice for the policy and not only is it amoral and ill-conceived and all the other deserved negative labels it has, it is also a legal fiction and the courts have said precisely that in this UT precedent.

Corbyn’s front bench team have already acknowledged by work exposing the reality of the reduced benefit caps that will make 700,000 + children homeless next year and will cost 30 times more than it saves.  Now they need to acknowledge that the bedroom tax decisions which were ALL based on the legal fiction that what is or is not a bedroom is up to the landlord and expose that all of the Conservative’s ‘welfare reforms’ (sic) were and are back of a fag packet ill-conceived policies that simply do not work and cost the public purse more.

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PS – Mrs S – What a fantastic job you have done for yourself, your son and for 456,958 other bedroom tax hit households across England, Scotland and of course Wales.

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Here is Wirral Council proving by its own hand it acted unlawfully in the bedroom tax – and here is Liverpool doing the same – which also includes the DWP acting unlawfully in their U6/2013 HB circular in referencing this:

2.2               Most recently Department of Work and Pensions (DWP) circular U6 in September 2013 restates the Government guidance in plain terms; it says “This bulletin is to inform LAs that when applying the size criteria and determining whether or not a property is under-occupied, the only consideration should be the composition of the household and the number of bedrooms as designated by the landlord, but not by measuring rooms.”

So yes IDS and DWP were still spouting this legal fiction well after the bedroom tax decisions were made.  Oh ok reader that wouldn’t knock you down with a feather would it!

Do I really need to put here all of those councils who said it is up t the landlord and we have no discretion?  Do I need to remind you again that at least two councils in Coventry and Cornwall even said there is no right of appeal against the bedroom tax!!

Do I really need to remind you all that the 3JP (the Fife case) said that any room less than 65 square feet (the Tudor Walters 1918 minimum size of a bedroom) should set off warning bells?  The boxroom of Mrs S that Tai Calon and Blaenau Gwent said was a bedroom would need to be 50% bigger to reach the absolutely smallest size set out by the Paymaster General Sir Tudor Walters almost 100 years ago!

6.0 square metres is 64.583 square feet – Now ask yourself is it right that a social landlord believes they can charge rent on a room that is massively smaller than the minimum bedroom size of 100 years ago?  It is right that a council believes they could too?

Houses fit for (WW1) heroes to live in but not for WW2, Suez, Malaya, Falkland, Iraq, Afghanistan or other heroes to live in?  Not for the grandchildren and great and great great grandchildren of Somme and Ypres veterans to live anyone?  That is what Tai Calon, Blaenau Gwent and all other social (sic) landlords and local councils have been saying these past 30 months.

WHEN the Syrian refugees finally arrive here then they will be given properties that lawfully stipulate any bedroom must be at least 70 square feet as the government did with the mass dispersal of asylum seekers in the late 1990s from London and Dover to all parts of the UK.

That again is what all landlords and (almost all) councils have been saying these past 30 months while the bedroom tax has been in operation.  That cannot be right and no council would even contemplate believing a private landlord who said his or her property had ‘x’ number of bedrooms!  Councils would have those properties checked yet do not do so for social (sic) landlord properties!

Emotive reader?  Too damn right but damn valid nonetheless as tens if not hundreds of thousands of already vulnerable men, women and children have been made more vulnerable, placed deeper into poverty and ill-heath and been well and truly shafted by the unlawfully determined bedroom tax decisions. I make no apology whatsoever for bringing in those emotive factors and if it is ok for an allegedly SOCIAL landlord to doorstep a vulnerable tenant and say ….

…pay up or you and your son will be on the streets at Christmas…..!!!

nuff said!