Bedroom Tax - When Is a Two-Bedroom Flat not a Two-Bedroom Flat?

I had really mixed feelings over writing this post. As you may have noticed, this blog is normally a little bit critical of Nottingham City Council, both from moral and/or legal viewpoints. So what should I do when NCC does something which you applaud morally but have serious misgivings about legally? Keep schtum and hope nobody notices? Or be Mr Consistent and call it out anyway? I've gone for the latter because there seems to be a significant amount of legal woo building up on the whole 'Bedroom Tax' subject and most importantly because the consequences of what is essentially wishful thinking will probably fall on the heads of tenants.

I'm talking of course about of NCC's decision to redefine all high rise flats it owns as 1 bedroom flats regardless of how many bedrooms they have. This has now hit the mainstream media and I quietly mentioned it in an addendum to my earlier post on the bedroom tax. The decision also includes 'reviewing' a small number of other properties where one of the alleged bedrooms is smaller than 50 sq ft. I'm happier (legally) with this bit so I'll come back to it later.

So, the decision to redefine the high rise properties then. It initially looked so simple, politicians and expert commentators were saying that the number of bedrooms you have is decided by your landlord. Landlords actually have no interest in 20% of their tenants being suddenly unable to pay their rent so what would you do?

The problem is that politicians saying all this sounded to me very much like the sort of pronouncements of gay abandon popular with people who actually have no idea how the law works. You think this doesn't happen? Witness Cameron bullshitting on a virtually daily basis about people who are exempt when the political situation makes it advantageous to do so. And so it is the case about it all being up to landlords.

The fundamental problem is that the new law does not define what a bedroom is and furthermore, does not actually say who decides. If the politicians were right and it really was down to the landlord the law would say that.

Where does that leave us? Well, the actual decision as to how much benefit you get, which implicitly includes all 'bedroom tax' questions including how many bedrooms you have, is made by the decision makers of the benefit authorities i.e. the council's housing benefits officers. For now at least (as usual, more in a bit on this). It's a matter of simple fact i.e. what the situation actually is rather than what someone would like it to be. They have to decide what a 'bedroom' is using the normal English use of the word which is the default position when a term is not specifically defined in the law.

On the face of it that doesn't sound so bad. After all, NCC Housing Benefits officers are hardly likely to go against NCC/NCH decisions are they? Not when it will effectively mean NCC losing out. Well no, they probably won't but the thing is, from October the new Universal Credit benefit scheme is coming in and that, including the rent element, will be decided by JobCentre Plus. They might not be so keen to look the other way. I'm afraid it will be a brave UC claimant saying he only has one bedroom on his claim form when he lives in a 2 bed flat because there's a real chance that will be seen as misrepresentation, a criminal offence.

What's more, let's say you appeal to a Tribunal over an aspect of your HB claim unrelated to the bedroom tax. It's quite open to the Tribunal to not just look at the bit you've appealed against but the claim in it's entirety. You might win your specific point but be worse off because the Tribunal also decides that the bedroom tax should be applied. I've represented hundreds of people before benefits appeal Tribunals in my time, one taking the initiative in this way is entirely feasible, believe me.

That's not the end of it. NCC's auditors will probably look at it at some point. I really don't see how an auditor could sign off what is essentially a scam. I actually think it's possible that charges of conspiracy to defraud could be on the table. There is a small possibility that claimants who went along with it could find themselves charged with this too. This is serious heavy shit for anyone concerned.

Cllr Liversidge's portfolio holder decision notice says that advice has been obtained from a law firm called Trowers and Hamlin. They are supposedly the leading law firm in social rented housing. Well, that's what Wikipedia says anyway so make of that what you will. I have to say that, if they have really provided such advice I humbly and respectively disagree with their conclusions. Not only did I used to be shit-hot at Housing Benefit appeals I've also seen a legal opinion by Jonathon Mitchell QC provided to a Scottish advice agency and I reckon he is pretty much saying the same as I'm saying above, apart from my suggestion of possible conspiracy offences which he hasn't touched on. Even if I'm wrong on that specific point (quite possible I'm no criminal expert) the situation we're left in is not a good one.

I said I'd also look at the situation where small bedrooms are to be disregarded. I think NCC are on much stronger ground here because, although the Housing Benefit regs don't stipulate what counts as a bedroom, the overcrowding rules in the 1985 Housing Act do say that a room smaller than 50 sq ft cannot count as a bedroom even for half a person (less grisly than it sounds, just refers to a child aged between 1 and 10). It's therefore plausible to argue that, when counting up the number of bedrooms those of such a small size should be disregarded. It's a perfectly rational way of deciding such matters and I'd be very surprised if a Tribunal or court interfered with it.

However, there's always a 'but'. Such a principle should in theory apply as much to rented properties in the private sector. As I pointed out before, they have their own version of a bedroom tax baked in to their version of housing benefit. I wonder if NCC has been looking at their claims in this way? If you were a private rented tenant who has had their benefit reduced because of a tiny box room you'd be entitled to be pretty pissed off having seen how NCC proposes to treat council tenants. In fact, under the new regime the same would apply to a Housing Association tenant, NCC cannot redefine other landlords' properties but Housing Benefit decision makers still have to make decisions on a consistent basis.

To be honest, I'm extremely surprised that a private sector tenant has not made a challenge on this basis before, there must be people out there affected in this way. If such a person does launch an appeal and it fails, that would put this aspect of NCC's 'review' under severe threat.

So, I'm sorry people, after considerable thought and research in an area that I do still claim expertise in, I pronounce this a dog's dinner of epic proportions. I really cannot see it holding for long and, even if it does, it is far from equitable to all housing sectors. I'll be watching closely what happens.

Bedroom Tax - Some Thoughts

I went to Nottingham's 'Bedroom Tax' demo last week. Saw the odd NCC councillor and apparently at least one MP popped in too.

You might also be aware that NCC has launched it's own petition against it too and, despite the fact that they deserve a long list of "Where were you when...?" questions, I would urge you to sign it.

It's not hard to see NCC's self interest in challenging the bedroom tax. It's implication will result in a rocketing level of arrears for council housing, the financing of which they are responsible for. In addition, the resultant homelessness and mass of downsizing applications will be a nightmare for them to deal with. We'll see how sympathetic they really are when those evicted for rent arrears rock up at the homelessness office and get told that they're intentionally homeless.

So, to those of us who have actually taken a genuine interest in social welfare provision it's no surprise to see them jump on this particular bandwagon when they haven't given a shit about poor people before. But their voice against the bedroom tax will help the campaign, hence my encouragement for you to sign the petition. Just please make sure you sign all the others too.

But, the fact that there has always been a 'bedroom tax' baked into the housing benefit scheme for private tenants, which has been constantly chipped away at by successive Tory AND Labour governments with nary a campaign, nevermind a squeak from NCC before* raises the question as to what is different. After all, ToryDems are using this former advantage for social housing tenants as a justification for bringing the bedroom tax in. This seems to be a significant gap in the campaign to me.

As far as I can see there are two main reasons why applying a bedroom tax to social tenants is worse than applying to private tenants;

1) You have to apply for social housing, satisfy eligibility criteria, usually spend time on a waiting list before being allocated a property. You rarely get very much choice in where you go. As such, you have no control over how many bedrooms you have so introducing a charege for having a 'spare' seems more unjust.

Of course, the flaw in this argument is that, with the total lack of available social housing,along with this country's peculiar obsession with owner-occupation means that those with neither of those options available are flooding the oversubscribed and overpriced private renting sector and any alleged 'choice' is probably somewhat illusory.

2) The continuing disastrous reduction in supply of social housing has meant that it has more and more become an option for the vulnerable alone, rather than a genuine mass option for housing that it used to be. Therefore it follows that an attack on this sector's housing benefit provision is much more likely to hit the vulnerable which, in most people's eyes, is worse than hitting fit, healthy people should just get on with it.

But again, that theory falls down due to that lack of supply of social housing has meant that vulnerable people fall through the gaps and are stuck with the private sector. In fact, because owner-occupation does look like a much better deal than private renting for solvent, healthy people, you have to wonder if most of those left in the private rented sector do have some element of vulnerability.

So to my mind, those two above reasons set out why a bedroom tax applied to social tenants is worse than one applied to private tenants. My caveats simply meant that, like most generalisations, the differences do not hold true 100% and are less likely to hold true as time goes on and the post WW2 social contract is progressively undermined. If you have other ideas please do add them to the comments.

So I think the anti bedroom tax campaigners need to make these points, otherwise to be consistent we need to also campaign against size related benefit restrictions whatever the sector, or be accused of double standards by the ToryDems. Such accusations, if they stick, can often be the death knell of a campaign.

Addendum; It appears that NCC is reviewing all its housing stock to identify any properties with rooms of less than 50 sq ft.Such small rooms will no longer be counted as bedrooms. They are also re-classifying all high rise flats as 1 bed properties, as they are only available to single and couples without children. Of course, a side effect of this welcome application of modern housing standards is that these properties will be less likely to be caught by the bedroom tax. Credit where it's due etc...

*Let's not forget that NCC, like many councils, has made the situation worse for private sector tenants by its monumental failure to administer Discretionary Housing Payments properly. The increased DHP provision to offset the bedroom tax is a drop in the ocean but I'll be keeping an eye on whether it is used properly.

By-Election 'Purdah'

There are a couple of by-elections coming up in the City on 4 April, one in Bilborough and the other in Wollaton East & Lenton Abbey. The Bilborough one will probably be a shoo-in for Labour but the WE&LA one isn't perhaps quite as certain. Lib Dems have held the seat before and one of the former incumbents, Tony Sutton, is running again this time.

By some strange coincidence, the Labour councillor (Cllr Longford) in the other seat in the ward has decided to use her ward-member's budget to fund a 'Week of Action' for the ward in March. Isn't that nice of her? I'm sure it will provide a wonderful and positive impression of the Council and, of course, the party in power.

Obviously Cllr Longford will resist any temptation to use the occasion to bombard the area with 'Proud' literature or materials giving the impression that Labour councillors like her are a wonderful thing. That might step over the line during the period of electoral 'purdah', which the Week of Action will be smack in the middle of. Guidance and the law prohibits councils from publishing anything that might influence voters during this time.

Still, I'm sure they'll all have a lovely time with their 'community engagement' events, nothing better take your mind off those pesky elections.

Collins In New Battle With the 'Post'

Brief announcement; It has come to my notice that this post has been linked to from a BNP Facebook page. If that is the route you got here then please fuck off because it's very likely you're a nazi cunt. This blog is resolutely anti-fascist and anti-discrimination. The fact that I regularly criticise Labour Party politicians does NOT mean I'm sympathetic to the right wing, quite the opposite.

Brief announcement over, if you got here via a conventional route, enjoy.

Oh dear, he's off on one again.

Yes, Cllr Collins has picked another battle with the Nottingham Post, claiming that they made up a quote from him. I won't put that in speech marks, you'll see why later.

It all started off with Collins' motion criticising corporate tax avoidance at the full City Council meeting on 11 February. The Post later wrote an article on it with the headline "Council leader: 'Boots are avoiding paying corporation tax'".

Cllr Collins didn't like that at all and responded on Twitter thusly (read from bottom up);

That link to what he says he actually said is here.

So, broadly speaking, Collins appears to be saying that 'Boots are avoiding paying corporation tax' is completely different to saying 'Even Nottingham based Boots paid just £14 million tax on profits of £475 million in 2009/10' in the context of a speech condemning tax avoidance. It's a question of interpretation, obviously.

So, to help us, let's get the impression of a totally unbiased party. Someone who was at the meeting if possible. And who was live-tweeting it. That should prove Cllr Collins' point shouldn't it?...

Oh.

Now the thing is, the Post clearly didn't write exactly what Collins said on the day, they used a journalistic technique called 'paraphrasing'. I think it's fairly common. Collins would have legitimate grounds for complaint if the Post had significantly altered his meaning but, seeing as his own party Twitter feed reported him as saying almost exactly what the Post said, I think he's onto a loser with arguing that one.

Thing is, he's still banging on about it, weeks later, posting these tweets earlier this evening;

Frankly, it's all getting a little undignified, not to mention getting a bit close to the bone re defamation and stuff. This might go on for a while yet.