Bedroom Tax – council legal fictions to cover up their incompetence
Councils often spout nonsense but…it is up to the landlord to define a bedroom and to say how many each property has takes the biscuit! Words to that effect have been trotted out by councils in the bedroom tax over the last couple of months and yet it is a total legal fiction. Legal fiction is a polite way of saying this is a load of bollocks or absolute shite – as that is what this is. Liverpool City Council are the latest to come out with this legal fiction that it is up to the landlord to define what a bedroom is and how many bedrooms each property has. Overview I drafted a standard template letter which involved 6 reasonable questions being asked of councils as to how they made the bedroom tax decisions. In reply after reply councils trot out this it is up to landlords nonsense so there is no doubt this legal fiction has been either (a) used as a device by local councils out of attempts to reduce their costs should the bedroom tax dispute go to formal appeal or (b) out of their ignorance and incompetence, or (c) a combination of the two. So why is this a legal fiction? – Or – why is it NOT up to the landlord to define what a bedroom is and how many each property has? 1. If it was then at the simplest level every social landlord could say every property was a 1 bedroom property and no bedroom tax deductions would take place. The tenant would be happy, the landlord would be happy, the local council would be happy and central government would of course not allow this. 2. The bedroom tax deduction is a Housing Benefit decision which means the decision it taken by the local Council. Councils ARE the SOLE decsion maker for HB decisions and they act as agents of central government in making those decisions – to say it is up to the landlord is a huge legal fiction. What a bedroom is and how many each property has is entirely up to councils 3. Any HB decision is between two parties and two parties alone. The claimant (the tenant) and the council (the decision-maker) and so any other party such as a landlord is a mere third-party and cannot be the decision maker 4. Councils because they act as the agent for central government have NO powers whatsoever to delegate a decision to a third party which is what they are saying they have done if they delegate this decision to landlords. To do so is and must be unlawful. 5. Landlords had no obligation at all to provide any data to councils as it stated unambiguously in the bedroom tax guidance at paragraph 20 of the A4 of 2012 HB circular. How can the third-party landlords word or view be sacrosanct and definitive if they had no obligation to provide anything? 6. If landlords had chosen not to provide any data at all to councils then what would these councils have done? The above are a few short reasons why any council saying it is up to the landlord are talking through their hat and stating a legal fiction. Yet the last point, 6 above, is a key one as it exposes what the bedroom tax decision-making process was – a sham and landlord and council being in cahoots to to make the decision with the easiest and lowest administrative cost and to hell with the tenant and claimant. The tenant claimant is at the bottom of this top-down structure and the easiest one to pass the costs and the blame onto. If the landlord CHOSE NOT to give the council any property data which they were perfectly entitled to do then the councils would have needed to visit each property to assess how many bedrooms each property has and of course that means defining, at least in working terms, what a bedroom is. Imagine the huge time and resource cost this would have given to each local council? That is no excuse for the councils to have avoided this as their job and role, as agents of the DWP, is to get each benefit decision right and is NOT to get the best guess they could with the lowest possible cost. Yet that is exactly what they have done and why all bedroom tax decisions must be legally unreliable and also why every single one needs to be appealed. In terms of explanation councils were ordered to make the bedroom tax decisions on top of and additional to their normal everyday caseload. No additional funding was given to local government (of which I am aware) to make these additional decisions and the bedroom tax decisions were and are incredibly difficult to do PROPERLY and very costly. I am not surprised councils took the cheapest corner cutting tactics to make them, yet that does NOT excuse the unlawfulness of how they made them. The central government imposition on local councils is correct explanation but it cannot in any way whatsoever excuse the incompetent and unlawful way in which these decisions were taken by local councils. Many times in the past I have stated that the bedroom tax decision-making process was all aimed at arriving at the lowest administrative cost decision and not at a correctly determined one. Housing Benefit officers at Liverpool and every other council are charged with making the correct decisions and NOT the cheapest and that is their publicly mandated duty. How any council can decide to believe the landlords when the same landlords have a financial interest in saying each property has as many bedrooms as possible beggars belief. It is up to the HB officers at each council to decide matters of fact and not of opinion and especially not of vested interest opinion. Landlord know or at least should know Housing Law. This is not only the space and room standards of the 1985 Housing Act but also the Rent Acts too. Councils should know the 1985 Housing Act and room size issue as the same councils have powers to prosecute any landlord that attempts to rent out a bedroom of less than 50 square feet. Councils should also know that decisions need to be taken over facts as they stand at the time of the decision and not of fact of 30 years ago when the tenant signed his or her tenancy agreement – this is another legal fiction and strategy some councils have been taking – you signed for a 3 bed therefore it is a 3 bed property or if your tenancy says its a 3 bed then it has 3 bedrooms. This is a further legal fiction. Councils and landlords should look at Uratemp Ventures -v- Collins 2001 and within that for Prout -v- Hunter 1924 (part of the Rent Acts) which looks at what is a dwelling and what facts need to be used when making a decision – contemporaneous ones not convenient outdated ex-facts and the use to which a tenant had furnished the premises become what the premises (and each room) are in matter of fact. The problem is that councils have been heavily steered by the irrational and unworkable guidance given to them by central government in the A4 of 2012. Liverpool like so many other councils (conveniently?) misread paragraph 12 of this heavily prescribed guidance. In fact Liverpool City Council quote this specific paragraph to justify their understanding of this legal fiction:
Bedroom size 12. We will not be defining what we mean by a bedroom in legislation and there is no definition of a minimum bedroom size set out in regulations. It will be up to the landlord to accurately describe theproperty in line with the actual rent charged.
Firstly ask yourself why would DWP choose to title a paragraph and title it “Bedroom Size” is they thought bedroom size was a non-issue? Secondly, “We will not be defining what we mean by a bedroom in legislation…” is a statement over a future issue (the use of ‘will’ is significant here) and this does NOT mean as so many councils and landlords have chosen it to mean that there is no definition of a bedroom in legislation. The fact that the 1985 Housing Act specifically excludes any room of less than 50 square feet being described as a bedroom IS already in legislation. Again I repeat landlords and councils know this. Thirdly, it is correct to say “….there is no definition of a minimum bedroom size set out in regulations…yet that means what it says – that the Housing Benefit regulations do not have a minimum size set out there – it does NOT mean the government will not set this out in the future and it does not mean that councils can conveniently over or ignore existing legislation or law, just that bedroom size does not appear in existing regulation as it has never needed to in the past. Fourthly, “It will be up to the landlord to accurately describe the property in line with the actual rent charged.” (a) a property is not the same as the number of bedrooms it contains. Liverpool know this from the Janet Bell case a 3 bedroomed property that only has 2 bedrooms. A property is not the same as the number of bedrooms it contains. These are two separate issues! (b) Is there any law that says a property must be described by the number of bedrooms? What is to stop social landlords describing a property as a 90 sq/m or a 110 sq/m property as is common in mainland Europe and elsewhere? Nothing at all. Does the guidance say a landlord much describe a proprty in terms of the number of bedrooms? No it doesn’t. (c) I looked on PropertyPool last week – Liverpool’s choice based lettings portal – and this reveals one bed social housing flats ranging from £62pw to £144 pw and all of them attract full Housing Benefit. This is a 132% variance in a low rent areas such as Liverpool! Hence the number of bedrooms in a property does not relate to the Housing Benefit each receive. Any link between bedroom number and rent charged and HB received is also an assumed nonsense and legal fiction, yet landlords trot out time after time if we reclassify we will lose rental income (and asset value) (d) Such wording in the guidance also assumes that the existing rent is being correctly charged by the landlord which is and can only be an assumption as is the landlord’s view of the number of bedrooms each property has. (e) Some social landlords such as Whitefriars in Coventry insist that a room measuring 35 square feet is a bedroom when it clearly is not and cannot be so described in legislation. The council there merely believes this despite it being a nonsense and is evidence of the two being in cahoots to avoid any cost to themselves and instead transfer this cost to the tenant renting this rabbit hutch (f) A neighbouring council to Liverpool, Sefton, say that A room is either a bedroom or is not a bedroom. I wonder if they realise this statement means a bedroom has to be able to fit in a double bed? As a double bed is 6′ 6″ by 4′ 6″ then how one can fit into the 8’2″ x 4’3″ Coventry ‘bedroom’ remains a mystery to me! Silly me I didn’t realise that benefit regulations mean different things in one part of the country to another!!!! The fact that a single bed in such a room – and using the lowest definition of a bedroom means a room that can fit in a bed – only allows 13″ of access for the tenant to squeeze through the bedroom door to access makes this farce even more Kafkaesque! While councils believe it is up to the landlord to define a bedroom then such perversities will abound and these legal fictions continue. All of which means that each and every council needed to ask the social landlords for room sizes of alleged bedrooms yet none of them did. Again, these councils have been deficient and negligent in their mandatory duties to assess the bedroom tax by simply believing the landlord’s word. Unless of course I have this all 100% wrong and then every social landlord can easily reclassify every property as having only 1 bedroom and each council has to believe that landlord. I wish I was wrong as this means the pernicious bedroom tax would be history! If I am wrong then the bedroom tax decision making guidance was a farce and a legal fiction, irrational and the DWP don’t have a clue. Yet if I am right then the bedroom tax decision-making guidance was also a farce and irrational and the DWP don’t have a clue! Now which one is it? Courtesy of Joe Halewood at SPeye