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.