In a hugely significant development for the bedroom tax appeals across the country with regard to bedroom size Bristol City Council is stating as a matter of policy:-
“If a tenant has an enquiry relating to the size criteria of a bedroom, please inform the tenant that if the room is less than 50 square feet the bedroom will be discounted. If the room is over 50 square ft the bedroom will be counted and the Under Occupation charge will be applied.”
Here we see (below) one Council stating that they maintain anything with a floor space of under 50 square feet is NOT a bedroom AND this council will not be applying the bedroom tax deduction and this is significant for every single bedroom tax appeal on bedroom size grounds and even for all bedroom tax appeals on any other procedural grounds.
Bristol City Council is saying they themselves should have asked for the size of all purported ‘bedrooms’ as part of the decision-making process in order to arrive at a legally reliable decision.
It cannot be the frankly perverse case that read literally Bristol City Council is saying this only applies “If a tenant has an enquiry” and only if a tenant questions the decision after the fact.
The wording above is a tacit admittance that the Council needed to ask about the size of purported bedrooms – from the landlord and or from the tenant – in the first place and as part of making the original decision.
It means quite simply that the original bedroom tax decision-making process in Bristol and across the country was fundamentally flawed.
Does it also means that ALL Councils should have asked for alleged bedroom sizes as part of the original decision-making process? In my view yes.
Does it further means that there is an applicable definition of what cannot be a bedroom in legislation and meaning the 1985 Housing Act section 326 on overcrowding does apply to all bedroom tax decisions? Again yes it does.
Finally it means that every one of the 660,000 bedroom tax decisions has a strongly arguable case at appeal that any Council who failed to ask for the size of a purported bedroom is strong evidence of a seriously flawed decision-making process by those Councils.
That still holds if all the tenants bedrooms are the size of football pitches as the issue is the procedure of HOW the councils went about making the decision was fundamentally flawed and without councils asking for alleged ‘bedroom’ size, no bedroom tax decision is reasonable and legally reliable.
The football pitch argument is very relevant to one other issue. It may be that only 5% of social tenants have a purported ‘bedroom’ of less than 50 square feet. Yet that doesn’t mean just 5% of social tenants have legitimate cause for appealing the decision because of that. It means 100% of social tenants have legitimate cause as the decision-making process is fundamentally flawed, unreasonable and legally unreliable. The Councils have to check the size issue in all 100% of cases yet have not done so and as such HOW they made the decision to impose the bedroom tax deduction is the issue and not specific points.
I have been derided for stating that all bedroom tax tenants have legitimate cause to appeal and scurrilously even had my professional reputation attacked by the CIH in this matter. Yet despite proving the CIH argument was fundamentally errant and frankly ignorant of the facts of appeal procedure the bigger issue is that tenants do have legitimate cause to appeal over procedural matters.
To attempt to label any such calls for all to appeal as direct action or blocking devices or even as a stunt are all smokescreens and frankly offensive as it infers the CIH believe that the offensive ease of administrative cost approach adopted by Councils was legitimate and acceptable.
It most certainly was not. It was and is patently unreasonable legally unreliable and offensive and reveals CIH and others who should know better have had their respective heads up their own backsides by only looking at the bedroom tax in terms of financial risks to their bottom lines and sending the message out to tenants that they couldn’t give a stuff about them.
The social rented ‘sector’ – with some honourable exceptions – has severely shot itself in the foot over the bedroom tax and done potentially irreparable damage to its own reputation. When direct payment has a national roll-out from October this year the seriousness of this huge error will become manifest and social landlords bottom line finances will take a very significant hit and many smaller social landlords will look for the Super HA’s to come riding in on their white chargers to ‘rescue’ the financially troubled smaller HA in their ‘benevolence!’ Though maybe that is and has been the plan all along?
To return to the issue at hand note well that Bristol City Council has decided that it has the authority to not apply the bedroom tax deduction in such circumstances. Bristol has come to a decision that it does have the powers to decide whether bedroom size is a factor and has done so however belatedly. Bristol City Council has not taken the errant view of other Councils who have simply dismissed the bedroom size issue as either (a) the 1985 Act does not apply or (b) there is no definition in law of a bedroom – which the reader should note that phrase is not found anywhere in any guidance.
All paragraph 12 of the A4 of 2012 says it that the government will not be (i.e. future tense) defining what a bedroom is in legislation – It does not say there is no existing definition of a bedroom in law only that the government will not be making a new or future definition.
It says: -
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 the property in line with the actual rent charged”
Bristol City Council has come to a correct view on this under 50 square feet issue as section 326 of the far more rigorous and exacting room and space standard definition says this as a matter of fact and not just law that may or may not be pertinent to the bedroom tax decision-making process. In essence and in fact it says that any room under 50 square feet in floor area cannot be a bedroom. It says: -
“326 The space standard.
(1)The space standard is contravened when the number of persons sleeping in a dwelling is in excess of the permitted number, having regard to the number and floor area of the rooms of the dwelling available as sleeping accommodation.
(2)For this purpose—
(a)no account shall be taken of a child under the age of one and a child aged one or over but under ten shall be reckoned as one-half of a unit, and
(b)a room is available as sleeping accommodation if it is of a type normally used in the locality either as a living room or as a bedroom.
(3)The permitted number of persons in relation to a dwelling is whichever is the less of—
(a)the number specified in Table I in relation to the number of rooms in the dwelling available as sleeping accommodation, and
(b)the aggregate for all such rooms in the dwelling of the numbers specified in column 2 of Table II in relation to each room of the floor area specified in column 1
No account shall be taken for the purposes of either Table of a room having a floor area of less than 50 square feet. “
The 50 square feet issue is a qualifying factor of what a ‘bedroom’ needs to be in the same way that the Janet Bell case had the absence of being surrounded by walls disqualified her former third bedroom from being a ‘bedroom’ in point of fact.
I have always maintained that the two main social housing lobbies, the CIH and the NHF, as well as countless social landlords have been wrong to dismiss the 1985 Housing Act as not being applicable to the bedroom tax decision. They have cited argument on ‘statutory interpretation’ grounds right down to the fact that the bedroom size issue may mean that living rooms could be included and make the bedroom tax even more punitive. I see all of these points yet even if living rooms may constitute a ‘bedroom’ then it still means that all rooms need to be assessed for the size of those rooms before ANY reliable decision can be made and that gets to the rub of the bedroom tax decision-making process for me.
It has been one based on ease of administration and ease of administrative cost in arriving at the original decisions. That for me is abhorrent and outrageous and especially in the context of the life-changing decision the bedroom tax deduction gives. The widow or widower in their early fifties who has brought up their children in the ‘family home’ for 30 years and is now living alone in a 3 bed house faces a £25 per week shortfall to be made from their £71.70 per week welfare benefit – a 35% deduction taking then 35% below any definition of poverty. To take such a decision based on ease of administrative cost and ignoring potentially relevant fact is outrageous.
When such a life-changing decision has been taken across the country based on simply believing the landlords view or word that is even worse as social landlords have a massive conflict of interest. If just 5% of all social housing properties have a purported bedroom of less than 50 square feet this means 190,000 properties have tenants that are being overcharged. It means 124,000 or so properties have been overcharging the public purse in Housing Benefit terms too.
If we estimate the rent differential between a 2 and 3 bed property at say £10 per week this sees tenants being overcharged £99m per year and the public purse being overcharged £65m per year in Housing Benefit! An argument develops that the social landlord is the biggest benefit fraudster of all time! The conflict of interest that social landlords have in the bedroom tax decision-making process is demonstrated just in those terms let alone what this would do to their asset values and potential for borrowing to fund new development.
The social landlord, with this massive and real conflict of interest, has tried to convince all and sundry that bedroom size is not an issue and many Councils have merely taken the social landlords word despite this and despite the social landlord not being under any obligation whatsoever to provide Councils with any information at all as paragraph 20 of the A4 of 2012 states unambiguously. How any council can justify merely accepting the social landlord’s word on what is a bedroom and how many a property has in this context is not reasonable and cannot be a reasonable decision!
Bristol City Council has belatedly accepted that as a reasonable position yet only IF the tenant enquires or appeals. That is also unreasonable and cannot hold and again smacks of ease of administrative cost and concern for future costs to the Council of defending such a view at appeal. I wish Bristol City Council had also decided that a purported bedroom between 50 and 70 square feet is in essence half a bedroom or some figure less than a full bedroom and decided not to apply the bedroom tax deduction in those circumstances. Perhaps that says that Bristol City Council, who are also still a social landlord, may well have a significant number of such sized ‘bedrooms’ in their own housing stock?
From 20 years experience in housing an estimate of how many properties have such size of purported bedrooms is about 20% which again gives a huge potential conflict of interest for Bristol City Council as a landlord in terms of overcharging tenants and the public purse through Housing Benefit. This 20% estimate and personal view would see social landlords overcharging tenants by £396m per year and overcharging the public purse through Housing Benefit to the tune of £257m or so per year! Putting estimated figures on this conflict of interest really heightens the scale of this undoubted conflict of interest position of the social landlord.
The 50.00 to 69.99 square feet room has always been a more difficult and less obvious argument to make. Yet while fully accepting that it still means that there was a necessity for Bristol and all other Councils to have regard to and to ask for and receive the floor sizes of all bedrooms from the landlord or the tenant. It still means the size of a purported bedroom was a pertinent factor in all bedroom tax decisions, yet Councils chose to take the easy out and not ask for bedroom sizes out of ease of administrative cost to impose these life-changing bedroom tax deductions. It means that any Council that did not ask for and receive bedroom sizes made an unreasonable and legally unreliable decision.
The Bristol City Council policy document below is incredibly significant to those fighting against the bedroom tax decision and the policy itself.
Finally just a note on the above and why it has been torn. The person who sent this to me, the source, wanted to ensure that the contacts on this internal email at Bristol City Council were protected. There is no doubt of the authenticity of it or the origin of the above as the wording makes clear. Doubtless there will still be some naysayers who will want to see this as not proof as there is many closed minds in this debate. Yet it is easily provable as any of the 3753 bedroom tax affected tenants in Bristol can easily attest to if they ask their Council for their view.
Reblogged from SPeye. Posted 6 May 2013. With thanks.