Bedroom Tax – the DEFINING moment as UT decision makes it history!!

150,000 households have been wrongly and unlawfully charged the bedroom tax and for the past three years … now that the precedent setting Upper Tribunal has finally decided what is a bedroom.

In a decision not yet available of which I have a copy the Upper Tribunal has ruled that a room to be a bedroom and meet 31(a) of the Nelson decision, to be of sufficient size, configuration and overall dimensions, that a room :-

“…should be capable of accommodating a single adult bed, a bedside table and somewhere to store clothes (see paragraph 33 of Nelson), as well as providing space for dressing and undressing.”

I have done the arithmetic and the geometry using standard sizes of the above which I first discussed in 2013 and then more accessibly here and for a room to be of a sufficient size to accommodate the above and be a bedroom it needs to have an absolute minimum floor space of 6.114 square metres or 65.81 square feet.

Note well that those absolute minimum floor space sizes are for a room of regular shape and so a room which is L-shaped or is unusually narrow in width or length will need to have greater floor space than this.  This absolute minimum size does not factor in any physical features or drawbacks [Nelson 64(v)] such as surface mounted electrical sockets and conduits or Pendox skirting and so on that would make the minimum room size needing to be greater.

Further note that the room has to conform to the rest of the Nelson criteria at 31(b) access; AND 31(c) natural and electric lighting; AND 31(d) ventilation; AND 31(e) privacy AND 64(i),(ii),(iii),(iv) and (iv).  You can also note that the storage of clothes is also stated as necessary at 22 in Nelson as well.

Most importantly, this is a zero sum game and ALL of the above tests for a room to be a bedroom have to be met and on an individual case by case basis for every claimant (see Nelson at 54) – and if just one of these tests or criteria is not met, then the room is NOT a bedroom.

The 150,000 figure is an educated guess  – and equates to one-third of households that currently are affected by the bedroom tax – and it is based on the fact that over 36% of all social rented properties are ‘deemed’ to be 3 bedded (EHS 2014) and the overwhelming majority of those are in housing jargon the 3B/5P or two double bedrooms and a single bedroom that is more accurately and lawfully described as a box room and not a bedroom.

I highlighted the relevant part of the decision above and I do so again because so many judges at First-tier, so many tenants and so many councils wrongly believe that Nelson says a room is a bedroom if it can fit a single bed or other legal fiction because they are too lazy or too predisposed not to read it properly.

This decision puts the flesh on the bones of Nelson and says it as it is – that a room to be a bedroom ….

“…should be capable of accommodating a single adult bed, a bedside table and somewhere to store clothes (see paragraph 33 of Nelson), as well as providing space for dressing and undressing.”

Make no mistake this is the DEFINING moment of the Bedroom Tax and the one that will make the policy history.  I also expect a number of imminent decisions from the Upper Tribunal that will ratify the above and further substantiate the above decision, and put more flesh on the bones by defining what the terms access and privacy and others actually mean in practical and understandable terms.

For example and given that a room to be a bedroom requires free floor space (see also Nelson 22) and above for dressing and undressing – a normal activity that we do in the privacy of a bedroom – means that privacy does not mean the door can close as many lazy minded FtT judges have said recently and committed errors of law in failing to consider what they should have considered!

What do tenants do now?

You appeal the bedroom tax decision about to begin next week and below is the text of a 1 page letter you can and should use (and please freely copy and paste) and you need to print off and sign it and hand it in to your local council (note NOT your landlord but your local council).  Get a receipt or make a copy and the rest will follow and pretty soon the government will be forced to abandon the policy given the estimated £1.26 billion this will cost them at tribunal.

______________________________

 

Date: ____________________        Re:    Social Sector Size Criteria (Bedroom Tax)

To:    Housing Benefit Department of _____________________________ Council

Dear Sirs,

I request a  reconsideration of your HB decision to take affect from April 2016 known as the bedroom tax and to make a lawful decision following the Upper Tribunal ruling and legal precedents you have to follow of what is and is not a bedroom in Nelson, [2014] UKUT 0525 (AAC) from 26 November 2014.

Nelson says that if a room is less than the minimum standard of 520 cubic feet then the council as decision maker has a “…need to provide reasons why, in the particular case, either is or is not too small” at paragraph 55.  Further at 54 that “…Parliament intended to allow decision makers to take account of all relevant circumstances on a case by case basis.”  I maintain you have not considered all my relevant circumstances to include a number of case-sensitive factors it says you must at [31] such as (a) size, configuration and overall dimensions. 

Nelson at [31] also says a room has to have (b) access, (c) natural and electric lighting, (d) ventilation and (e) privacy.  It further says at [33] that a room to be a bedroom has to include the storage of clothes (also at 22) and somewhere for a glass of water: A room needs to have free floor space to get dressed and undressed [33] to be of normal height and be heated in the same way as other rooms [64] and these are facts that you cannot have considered as you have not seen the disputed room(s)..

I further direct you to the Upper Tribunal decision in case CH/454/2015 that decided at [6] that for a room to be classified as a bedroom and fleshing out [31(a)] of Nelson “…should be capable of accommodating a single adult bed, a bedside table and somewhere to store clothes (see paragraph 33 of Nelson), as well as providing space for dressing and undressing.” 

I maintain rooms in my property do not meet the UT criteria to be deemed as bedrooms due to size, configuration and overall dimensions and I am seeking a full reconsideration of your decision that my property has the number of bedrooms you state it has.  Please give your response in writing, stating when you will be coming out to inspect my property with at least 72 hours notice. I await your full and considered response.  

Yours faithfully

 

 

Name:		HB Reference NINO
Address:

_________________________________________________________________

The above as formatted will fit onto 1 side of A4 so if the many Trades Unions and others who printed off many thousands of blanks of the original template letter I drafted back in 2013 and wish to distribute, then again feel free to do so.

By the way if it is 150,000 who have been unlawfully charged the bedroom tax this is a further £120 million less of a ‘saving’ to the DWP from this pernicious back of a fag packet policy or half a billion this parliament if the new DWP minister does decide (or is told by the Treasury) to continue with this pig’s earhole.  Welcome to your new job Stephen Crabb!

For those eagle-eyed persons and inveterate naysayers who will say wasn’t Davie Nelson’s case ruled to be a bedroom when it measured 8 ft x 8 ft (Nelson 64(v)] and thus 64 square feet and so how can the absolute minimum be 65.81 square feet as the Nelson case itself is wrong in law?

The answer is that the disputed room in that individual case had built-in wardrobes leaving 64 square feet of floor space AFTER the storage of clothes and access to those clothes and hence that disputed room was of a sufficient size, configuration and overall dimension to be classified as a bedroom.  Also note that the room was actually 66.3 square feet (see Nelson at 41) and not 64 square feet as stated in [64].

What will social landlords do?

As usual panic and stupidly and wrongly believe they will have to reclassify thousands of properties and reduce the rents on them – Nothing could be further from the truth and social landlords will benefit from this and benefit from supporting their bedroom tax tenants to appeal – as a small handful of very enlightened social landlords have done all along.  You know who you are and well done again for your perspicacity and good business sense as your tenants still trust you!

Supporting tenants to appeal means you are genuinely social landlords while the majority who did not support and see this despised policy from a tenants perspective are not and they have lost tenant trust and despite what tick box satisfaction surveys you humour yourselves with!

Back on point, regardless of what guidance was issued by DWP in the A4 of 2012 and numerous knee-jerk HB circulars issued by IDS after his losing so many appeals, the HB regulations say that the decision makers in HB departments can only reduce the housing benefit level paid if the rent charged is “unreasonably high.”  (Do I really need to make the point that those who rely on HB for 75% of their ‘customers’ really should know what HB regulations actually say!!)

That case of “unreasonably high” can never be made by any local council HB department given the average social rent differential of £5.97 per week between a 2 bed and a 3 bed (HCA figures 2015/15) that is likely to be £6.10 given the 2.2% increase for 2015/6 rents.

Local councils cannot make a viable argument that £6.10 per week more for a 2 bed with a box room than a standard 2 bed without is unreasonable, and in any case there is often a much higher variance or differential between standard 2 bed only properties and in every local authority between different social landlords and even within the same social landlord.

In short, social landlords would be stupid not to support their tenants to appeal on room size, or more specifically size, configuration and overall dimensions as stated in Nelson and clarified in practical and readily understandable terms in the above.

General

I have advocated for over three years that the best way to get rid of the bedroom tax is the appeal route through to tribunal.  The above decision proves I was right and it is worth putting that into context and into figures.

The current decisions under consideration by the Supreme Court may take 280 women and their children out of the bedroom tax with a sanctuary room if that appeal court decision is upheld.  If my 150,000 estimate is accurate this is over 500 times more taken out of the bedroom tax.  Even if the ‘size’ issue only takes out 100,000 that is still 230,000 men women and children taken out of this despised back of a fag packet policy – that is what makes me smile and not that I was right.

To all those naysayers and detractors who slated my advocacy of the appeal route – and that was the term the Chartered Institute of Housing (England) despicably used in a placed story in Inside Housing back in early 2013 – then you were wrong and badly wrong and you have never apologised for that despicable slur and despicable story, so you deserve no respect or credibility and all of my scorn.

Here is that despicable article and attempt at a professional character assassination on me: –

So, dear reader, if you have ever wondered why I occasionally give both barrels at times to housing umbrella groups and housing journalists and the ‘great and the good’ housing omniscienti whose heads are so far up their own …

If tenants had taken my advice and/or are still in the appeal system as many 2013 cases still are, then you would get all the bedroom tax you have had deducted back, all three years of it.  Yet because most did not in the numbers you should have done – and you were actively discouraged from appealing by the likes of the above as well as most landlords and all local councils with their legal fictions and myths of you signed for a 3 bed therefore it is a 3 bed and so on – you will only be able to claim against this years decision and have the bedroom tax stopped from this April if your alleged ‘bedroom’ is not of a sufficient size, configuration and overall dimension.

If that last paragraph reads as bitterness, it is self-directed for not being able to persuade you and especially because perhaps 345,000 or even more men women and children have suffered the indignity and unlawfulness of the ideological back of a fag packet bedroom tax.  It’s not bitterness reader, its anger!

Now it is time to take action dear tenant to get rid of the hated bedroom tax by embarking on an appeal, which costs you absolutely nothing and is your absolute right; and let’s be brutally honest you can’t exactly rely on your so-called ‘social’ landlord to finally do the right thing can you!