Bedroom tax (definition of a bedroom)

[Prouty99]

Hi all...

 

If there is no legal definition of what a bedroom is, and it is down to the housing benefit officer to decide if a room is a bedroom (not the landlord/housing association),

 

Then how can he/she make a legal decision on if your room is a bedroom or not ?

 

If he/she says it is a bedroom, then i say it is not. I can't legally prove my case, but neither can they.

 

If i say it isn't a bedroom as there is no legal definition, and use this as a ground for an appeal, then surely the onus is on the housing benefit officer to legally prove me wrong.

 

Without a legal definition there isn't any way to argue against my assessement that it isn't a bedroom.

 

Case thrown out for lack of legal definition, therefore lack of evidence.

 

Thoughts anyone ?

[stu007]

Hi Prouty99

 

Now what the government has done is not define what a bedroom is but left it up to local authorities to decide.

 

Those local authorities only decide how many bedrooms you have by what your social housing landlord has stated on your tenancy agreement for that property so if your landlord says its a 3 bedroom property that is what the local authority use in it decision process.

 

How long do you have left to appeal?

[Prouty99]

Hi Stu,

 

I have a case like this at the moment, and we have disagreed in writing with the social housing landlords assessment of the size of the property. They say its 2 bedrooms, we say its 1 bedroom.

 

The housing benefit officer must then send out a rents officer to assess the property, before the housing benefit officer can determine whether to apply the bedroom tax at 14% or 25% etc....

 

Even if the rents officer tells the housing officer its 2 bedrooms, the housing officer is still tied by legal proof that this is the case. To legally prove this he/she must have a definition of what is or what is not a bedroom. (which the govt has not defined, and will not define)

 

Without a legal definition i could say that the room in your house with a toilet in it is also a bedroom...

 

The HB officer then must write to you to inform you of the reasoning he/she has come to as to why he/she thinks the room is/isn't a bedroom.

 

Without a definition then he/she cannot do this, and until the 'room' is defined, a levy can/can not be placed upon it.

 

Even if a council comes up with their own definition , then it is not legally binding unless the housing benefit legislation is amended.

 

They say its a bedroom, i say its a hat stand, or a wardrobe, or a rabbit hutch....i defy anyone to legally prove otherwise. On balance of probability, or singular opinions prove nothing.

 

The only legislation close to a definition are the regulations concerning houses of multiple occupation, although this has nothing to do with housing benefit, and only defines what IS NOT a bedroom, ie no window (isn't a bedroom), and 6.5 square metres or 70.1 square feet is the minimum size allowable. (nothing to do with the bedroom tax)

 

As well as this there is also the The 1985 Housing Act section 326 states explicitly a room of less than 50 square feet cannot be a bedroom, but again this has nothing to do with the 'spare room subsidy'

[id6052]

It is my understanding that HB departments will determine the number of rooms in a property based upon what is stated in the tenancy agreement, so if your tenancy agreement states 3 bedrooms, your HB will be determined on that basis.

 

If you dispute the number of rooms, the HB department may do one or more of the following: -

 

1. send someone out to inspect the property
   
2. refer you to your landlord to request recategorisation of property
   
3. accept your representations and amend your HB award
   
4. uphold original decision, but you can still request case goes to tribunal
   

Hopefully we will get a test case working up the legal process soon and setting case law which will apply to all LAs (potentially a double edged sword), but until then it will be up to individual LAs to try to to determine what is or is not a bedroom.

[stu007]

I cannot disagree at all with you on what is defined as a bedroom but that is where the government in not defining it and has passed this responsibility onto local authorities down to social housing landlords.

 

Most local authorities are defining a bedroom by what the social housing landlord has stated is the amount of bedrooms on the individuals tenancy agreement for that property.

 

There have been some housing associations but only some that have reclassified properties due to this bedroom tax.

 

What is the individuals circumstances at present? do they have any medical reasons, mental health issues, disability, room wont fit a single bed, etc

 

Importantly how long do they have left to appeal from receiving the housing benefit decision notice?

 

just trying to get an idea for a letter.

 

Oh almost forgot this link for Valuation Office Agency - Rent Officers Handbook may be of some interest:

 

Rent Officers Handbook – ROOMS

http://www.voa.gov.uk/corporate/publications/Manuals/RentOfficerHandbook/Other/Procedures/r-roh-rooms.html

 

Rent Officers Handbook – SIZE CRITERIA

http://www.voa.gov.uk/corporate/publications/Manuals/RentOfficerHandbook/HousingBenefitReferral/Determination/s-roh-size-criteria.html

[Prouty99]

I was speaking to the HB department in my local authority last week, and they said that they haven't been given the funding to employ people to go and inspect properties.

 

They also said that if all cases were appealed and insisted that rent officers go to each property then the local authority would be tied in red tape for years to come.

 

interestingly they also said that if all residents who were eligible for discretionary housing benefit applied for it then the budget would run out in 3 months from April 1st 2013.

 

Cameron's days are numbered, he will not have another term, then its back to the political wilderness for him and Clegg.

 

As far as i can make out, it doesn't matter about circumstances of the resident, all arguments boil down to a definition of what a bedroom is....If you have 99 bedrooms then the rents officer will still have to legally define what a bedroom is in order to legally determine whether it will be taxed.

[id6052]

I was speaking to the HB department in my local authority last week, and they said that they haven't been given the funding to employ people to go and inspect properties.

 

They also said that if all cases were appealed and insisted that rent officers go to each property then the local authority would be tied in red tape for years to come.

 

interestingly they also said that if all residents who were eligible for discretionary housing benefit applied for it then the budget would run out in 3 months from April 1st 2013.

 

Cameron's days are numbered, he will not have another term, then its back to the political wilderness for him and Clegg.

 

As far as i can make out, it doesn't matter about circumstances of the resident, all arguments boil down to a definition of what a bedroom is....If you have 99 bedrooms then the rents officer will still have to legally define what a bedroom is in order to legally determine whether it will be taxed.

 

At my LA, the money provided by the government for DHPs would run out in 5 weeks if it was awarded to everybody affected by the bedroom cap, this is without taking into account anybody renting a property in private sector who needs a DHP

[stu007]

How long do you have left to appeal the decision notice?

[tomtom256]

Hi all...

 

If there is no legal definition of what a bedroom is, and it is down to the housing benefit officer to decide if a room is a bedroom (not the landlord/housing association),

 

Then how can he/she make a legal decision on if your room is a bedroom or not ?

 

If he/she says it is a bedroom, then i say it is not. I can't legally prove my case, but neither can they.

 

If i say it isn't a bedroom as there is no legal definition, and use this as a ground for an appeal, then surely the onus is on the housing benefit officer to legally prove me wrong.

 

Without a legal definition there isn't any way to argue against my assessement that it isn't a bedroom.

 

Case thrown out for lack of legal definition, therefore lack of evidence.

 

Thoughts anyone ?

 

 

Hi they don't have to prove you legally wrong as its a civil matter not a cimrinal one.

 

As other have said they will go on any tenancy agreement, if it states two bedrooms then that is what you have.

 

What will go against you is youe have always receveid full rent I presume on the fact that it is a two bed property and have never disuputed this fact until the reduction of benefit hit, which the LA will use to its advantage in any decision regarding one or two bedrooms.

 

You cannot happily receive benefits for a long period based on one fact and then suddenly disagree just because of a monetary issue.

 

The onus would be for you to prove it's a one bedroom property and not the LA.

 

If it was my LA and this suddeny happened I would also argue that you have obviously recevied too much rent previously if it is indeed a one bed property, as the rent for a one bed would usually be less.

[jadeybags]

It is my understanding that HB departments will determine the number of rooms in a property based upon what is stated in the tenancy agreement, so if your tenancy agreement states 3 bedrooms, your HB will be determined on that basis.

 

If you dispute the number of rooms, the HB department may do one or more of the following: -

 

1. send someone out to inspect the property
   
2. refer you to your landlord to request recategorisation of property
   
3. accept your representations and amend your HB award
   
4. uphold original decision, but you can still request case goes to tribunal
   

Hopefully we will get a test case working up the legal process soon and setting case law which will apply to all LAs (potentially a double edged sword), but until then it will be up to individual LAs to try to to determine what is or is not a bedroom.

 

It's no more complex than this from what Martin Lewis said anyway. If someone has been paying rent for a 2 bed property, it's not suddenly going to become a 1 bed unfortunately.

[stu007]

Hi Prouty99

 

Well had a we think on a letter for you now please bear in mind this is only an example of what you could send.

 

You also need to bear in mind that if you do appeal you only have one month from the date on the Housing Benefit Decision Notice letter.

 

 

Your Address

 

There Address

 

Date

 

Dear Sir/Madam

 

Housing Benefit Reference: (Insert Reference this will be on the Housing Benefit Decision Letter)

 

I received your Housing Benefit Decision letter on (Insert Date) and referenced above that imposed an extra room charge of (14% / 25% Delete as required) on my existing award of Housing Benefit.

 

I consider this unwarranted yet in order to challenge this in the correct way and potentially by way of formal appeal I require further information to be sent tome within 7 days of this letter and the urgency of that is to ensure I have enough time to formulate any such appeal and in full knowledge of the facts of my case within the time allowed; OR in the alternative I request the deadline for any such formal appeal be moved to 21 days after I receive the request information below:

 

1. A written copy of the Council’s policy and decision-making procedures in relation to referring a socially housed claimant decision to the Rent Officer Service.

 

2. A copy of your policy which sets out how you define a ‘bedroom’ for the purposes of Housing Benefit Regulation 2006 as amended by SI No.3040

 

3. A full explanation of how the council decided that (Insert Property Address) was determined to be a (Insert Number of Bedrooms)property for the extra room charge and this to include what involvement if any of my landlord, (Insert your Landlords Name) had in this process.

 

4. How your Local Authority has fulfilled its Public Sector Equality Duty requirements in regards to extra room/bedroom tax of (14% / 25% Delete as required) on my existing award of Housing Benefit award.

 

I think your decision is incorrect due to the following:

 

Ø I have a small box-type room which is not a bedroom, and you have wrongly classified this as a spare bedroom. (Delete as Required)

 

Ø You have wrongly classified as a spare bedroom the room I use as a family play room/storage room/games room. (Delete as Required)

(amend or add to the above as required)

 

Please state by way of covering letter with the requested information any changed deadline date from above with regard to a formal appeal.

 

Yours Sincerely

 

 

(Print Name)

 

Now what you are doing in the letter is requesting more information from local authority to be able to properly appeal decision but also asking for the appeal deadline to be extended and for them to acknowledge this.

 

Important you must do this before the one month deadline from the date of the decision notice!!!

[Prouty99]

Thanks Stu,

 

We are still inside the one month rule at the moment so the timeframe isn't an issue as yet. This isn't my property by the way, i am supporting someone else here.

 

The tenancy agreement mentions absolutely everything aside from how many bedrooms are in the property, therefore strangely this person signed the tenancy agreement in 2011 without having a written document of how many bedrooms are there. The HA says two verbally (and that was only last week)

 

This is where it starts to get a bit Zen...

 

I dispute 2 bedrooms as i have no written proof there are 2 bedrooms, and as i have no definition from government on what a bedroom is i cannot make a decision as to how many bedrooms there are. Therefore i need the HB people to send someone out to inspect it and tell me how many bedrooms there are.

 

If they say its two, then i want their decision, and the reasoning behind it in writing.

 

What i want is a letter from them saying "the local authority have determined that there is two bedrooms in the property because ...."

 

Then, and only then will i have a written description of what the local authority describes as a bedroom, and i can then use this letter to help others, as the local authority will have committed themselves to what a bedroom is, and must then be consistent with others in the same predicament.

 

The easiest route by far would be for the tenant, who has shared custody of a downs syndrome child of under 3 years, to agree with his ex-partner that child benefit is signed over to him rather than her (who lives in a 1 bedroom flat as a single parent)....Case closed.

 

The relationship between the two ex partners is very strong, they put the child first, and help each other out with a lot of things. They are stronger as a separated couple than they ever were together.

 

Thanks for the letter template Stu, i will use this tomorrow and see where we go from there.

[stu007]

Hi Prouty99

 

Now your last response has changed things slightly as you mention the have shared custody of a downs syndrome child of under 3yrs - Now do they have any legal documentation on shared custody and the childs condition?

[Prouty99]

Hi Stu,

 

They have all the documentation to prove this, although the female lives with child in a 1 bedroom LHA flat, and gets child benefit for the child.

 

Ex partner lives in the 2 bedroom flat, and the child visits regularly and has overnight stays to free up mum sometimes (as mum is also disabled, and needs a break at times)

 

The problem is (and this has been confirmed to me by the local authority), that if dad got housing benefit rather than mum, there wouldn't be an issue. Dad would be classed as guardian, and bedroom tax would be withdrawn in his case. As mum has only a 1 bed, then she wouldn't be a victim of the bedroom tax to start with.

 

In a perfect world they could just mutually exchange flats, that's it, problem solved. Although mum is disabled and the 2 bed is 2nd floor with no lifts.

[stu007]

Ok Prouty99

 

I am going to amend the example letter in post #11 to take account of the new info so please bear with me and will post amended version.

[stu007]

Ok Prouty99

 

Please remember this is only an example letter for you to use or not, amend as needed to suit your requirements.

 

Amended Example letter:

 

 

Your Address

 

There Address

 

Date

 

Dear Sir/Madam

 

Housing Benefit Reference: (Insert Reference this will be on the Housing Benefit Decision Letter)

 

I received your Housing Benefit Decision letter on (Insert Date) and referenced above that imposed an extra room charge of (14% / 25% Delete as required) on my existing award of Housing Benefit.

 

I consider this unwarranted yet in order to challenge this in the correct way and potentially by way of formal appeal I require further information to be sent to me within 7 days of this letter and the urgency of that is to ensure I have enough time to formulate any such appeal and in full knowledge of the facts of my case within the time allowed; OR in the alternative I request the deadline for any such formal appeal be moved to 21 days after I receive the request information below:

 

1. A written copy of the Council’s policy and decision-making procedures in relation to referring a socially housed claimant decision to the Rent Officer Service.

 

2. A copy of your policy which sets out how you define a ‘bedroom’ for the purposes of Housing Benefit Regulation 2006 as amended by SI No.3040

 

3. A full explanation of how the council decided that (Insert Property Address) was determined to be a (Insert Number of Bedrooms)property for the extra room charge and this to include what involvement if any of my landlord, (Insert your Landlords Name) had in this process.

 

4. How your Local Authority has fulfilled its Public Sector Equality Duty requirements in regards to extra room/bedroom tax of (14% / 25% Delete as required) on my existing award of Housing Benefit award as I have shared custody of my (Son/Daughter Delete as required) who is 3yrs old and suffers from Downs Syndrome.

 

I think your decision is incorrect due to the following:

 

Ø I have a small box-type room which is not a bedroom, and you have wrongly classified this as a spare bedroom. (Delete as Required)

 

Ø You have wrongly classified as a spare bedroom the room I use as a family play room/storage room/games room. (Delete as Required)

 

Ø I am separated from my former partner and require the room you have wrongly classified as a spare room to meet my child care and parental duties as my (Son/Daughter Delete as required) is 3yrs old and suffers from Downs Syndrome. To ignore my duties as a parent, and ignore the needs of my children to stay with me, is discriminatory and unlawful in relation to the Human Rights Act 1998 and contrary to the Children Act.

 

Ø As my (Son/Daughter delete as required) suffers from Downs Syndrome and I have shared custody that requires their own bedroom because of the needs due to Downs Syndrome. To ignore the needs of a member of my household with Downs Syndrome and treating them as not being entitled to their own room to sleep in is discriminatory and unlawful in relation to the Article 8 and 14 of Human Rights Act 1998, The UN Convention on the Right of Persons with Disabilities and the Public Sector Equality Duty.

 

Please state by way of covering letter with the requested information any changed deadline date from above with regard to a formal appeal.

 

Yours Sincerely

 

(Print Name)

 

IMPORTANT – Please bear in mind the Local Authority may ask for evidence of Shared Custody and the Childs Medical Condition.

[Prouty99]

Thanks Stu,

 

I will post any interesting replies from the local authority when i get them

 

Thanks for the assistance, i owe you one

 

Regards

 

Prouty

[stu007]

No problems at all glad to be of help and please do let us know how you get on or if you need any other assistance.

[stu007]

Hi Prouty99

 

Found this PDF from the House of Commons Library interesting read:

[stu007]

Hi Prouty99

 

Just thought I would pop in and see how this is going do you have an update at all?

[getmyrefund]

Hi Prouty99, if your around, it would be helpful and interesting to see if and what type of response you had from your council with your request for more information.

I sent my council the same type of letter asking for more information following on from my BDN i received earlier. To date i have not had a response... so it concerns me about the deadline for appealing.

[stu007]

Hi Prouty99

 

Just checking in to see if you have an update at all?

[caro]

If it was my LA and this suddeny happened I would also argue that you have obviously recevied too much rent previously if it is indeed a one bed property, as the rent for a one bed would usually be less.

My response to this would be that it is the HA that has received too much rent and not me.

[Prouty99]

Hi folks,

 

I had a strange end to this case...

 

I had long negotiations with the HA, and they firstly seemed to agree that the room wasn't a bedroom, but later changed their stance to quite a strange opinion.

 

The HA had protracted talks within the organization and seriously considered reclassifying their 3 beds to 2 beds and two to ones, but those talks collapsed. However the HA has now settled on a position whereas they will now charge the tenant for the bedroom tax, but the kicker is that they have categorically stated in writing that if the tenant goes into arrears due to the bedroom tax that the HA will not seek repossession on this basis alone.

 

In practice after negotiation with the HA, the policy is that the bedroom tax is not classed as 'rent', therefore the HA cannot class unpaid bedroom tax as rent arrears. I also have it in writing that the HA will not seek repossession proceedings however large the arrears for bedroom tax alone.

 

This is a very weird ruling, and not one that i expected (or sought), but the head of the HA told me that even if the tenant is 10K + in arrears for bedroom tax alone the HA will not be pursuing legal action !

 

I'm still mulling over this at the moment, and considering my next move, but the HA's firm position is that it does not have the resources to undertake multiple prosecutions based on something that technically isn't rent in the true sense of the word.

[yorkrose26]

I am rather interested to know this as I have a friend who has a loft conversion in to a very nice double bedroom with en-suite, now technically the bedroom is not down as a bedroom on the deeds, as for some reason (don't know whether this is general or just in her particular situation), this is no longer used as a bedroom, but is still a bedroom (if you see my point), the reason she was allowed to convert was because under the housing association she is under they have pretty flexible rules, especially if tenants are going to be 'lifers' in that property (they have to fill separate forms in), but what she is worried about now is if this 'bedroom' is now going to be 'taxed'. Does anyone have any ideas?