Opinion: Challenging the bedroom tax
Published by Max Salsbury for 24dash.com in Central Government and also in Housing, Regulation
Bedroom tax campaigners protesting outside court as landlord seeks mother's eviction
Peter Barker, the 'housing benefit anorak' who first brought the 1996 bedroom tax loophole to public attention, explains the current situation and reminds landlords that there are other ways to challenge the controversial policy.
As has been widely reported, regulations created in 1996 to provide transitional protection for private tenants from a new housing benefit (HB) regime made some social tenants – perhaps as many as 60,000 – exempt from the maximum rent (social sector), or ‘bedroom tax’.
Those exempt are people who have been on HB for the same home without a break since 1 January 1996, or have taken over a tenancy following the death of a relative or separation from a partner, provided both the original and current tenant have unbroken HB entitlement for the same home since that date.
One four-week break in HB is allowed (or 52 weeks where a person on long-term sickness benefits found work) as is a change of address following a fire or similar catastrophe.
Finding these cases is proving a challenge to councils as few hold records in searchable database form as far back as 1996.
Therefore councils are relying heavily on tenants and social landlords to come forward and supply a short letter or email including name and address, HB reference number, date of tenancy, brief reasons why s/he is exempt and, where applicable, date of succession or forced move and name of previous tenant.
Provided the council accepts the evidence, full HB can be backdated to April 2013 without time limit because an official error is being corrected. If the council is not convinced by the evidence, complex adjudication issues are raised.
The safest way for a tenant to protect his/her position is to write to the council within 13 months of the original April 2013 bedroom tax decision saying s/he wants to appeal. For most people that deadline arrived around the end of March 2014.
A tribunal decides cases on balance of probability: if the tenant’s appeal is plausible and not contradicted by surviving documentary evidence it stands a good chance of succeeding.
Another difficult issue is whether tenants who have wrongly had their HB reduced should be compensated. Around one in seven tenants subject to the bedroom tax have faced threats of possession and this figure must include many who should have been exempt.
The 1996 exemption is an inadvertent loophole – it was always the government’s intention that the bedroom tax should apply to these people, so they are arguably benefiting from a windfall denied to others.
On 3 March the HB regulations were amended to close the loophole, which means that most of the 1996 exempt group will face the same consequences sooner or later if they have not already (although an exempt tenant who has turned 62 since April 2013 could argue with some justification that s/he should never have been subject to the bedroom tax at all because it does not apply to anyone in that age group).
The 1996 loophole has dominated the HB news lately but it is worth remembering that the bedroom tax can be challenged on other grounds as well.
The term ‘bedroom’ has no legal de¬finition and tribunals are taking a range of factors into account: the size and shape of a room, its position in the dwelling, and especially how the room has been used and furnished now and in the past.
The everyday meaning of ‘bedroom’ is a room furnished and used for sleeping in; the whole point of the bedroom tax is that tenants with spare rooms are not using them for that purpose.
The more compelling a person’s reasons for using a room for a different purpose, the more likely a tribunal will conclude that it isn’t a bedroom. Several appeals are pending with the
Upper Tribunal on these issues: 2014 could see the bedroom tax policy come under sustained pressure in the run-up to the next election.
The 1996 loophole may be just the beginning.
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