UC deducting 'Under Occupancy' from benefit

[Shelley181146]

Hope this is the correct forum for this thread, please move if you feel it appropriate.

 

Currently living in three bedroomed property alone. 

Moved in 14 years ago with family of hubby and two children.

Cut a long story short, children flown the nest, hubby died.

 

Local council not insisting I move because they have a major shortage of smaller properties and when I am at work I pay full rent and the 'Under Occupancy' is not an issue. I accept that I have to pay full rent accordingly.

 

However, in March I had an accident from a defective vehicle I was driving and have been unable to drive or work since, hence my claim for Universal Credit.

 

They are deducting 25% of my Housing element (just shy of £100) which I am unable to make up.

 

Last year I submitted an appeal to the council who refused it, and then found out I should appeal to DWP as they were at that time deducting it from benefit.

got a tribunal hearing and they believe that the law has moved on since 'Nelson' FIFE case Upper Tier Tribunal, which it hasn't, it still has to be abided by, and there are several issues which the judge has not taken into consideration.

 

Does anyone have any legal knowledge on a scenario whereby the central heating boiler is situated in a box room, cited above the bulkhead of the stairs, which is obviously not heated the same as other rooms in the property?

 

Also, if a single bed were to be situated where the judge suggests, the occupant of the bed could very easily burn themselves on the radiator.

 

Is there any fire regs or is there a specific space allowed between the radiator and the bed,

should radiators be covered in small spaces to prevent burns?

Is there any guidance in this regard?

Maybe under fire regs?

 

Would appreciate peoples responses if you have experience of this type of appeal.

 

Andy Orch, are you aware of any similar scenario's?

[unclebulgaria67]

For benefit purposes you are arguing that the house does not have the 3 bedrooms that are listed, because of various factors you believe are in your favour.

 

If you were successful, no doubt the landlord would then have a property which was worth less, as it has fewer bedrooms.

 

I think your argument would be with whoever you rent the house from. That some of the bedrooms no longer qualify as bedrooms. I think some of the law has changed, given how small many bedrooms are in new houses. Shops must be selling smaller sized beds to fit in these, as normal sized beds would not fit.  If you called the housing charity Shelter, they should have details of all of the legislation that applies. 

 

Here is a link to recent legislation i could find.

http://www.legislation.gov.uk/uksi/2018/616/regulation/2/made

 

 

if you are having your UC housing reduced due to spare bedrooms, then you would need to try to claim Discretionary Housing Allowance (DHA) from the local council. DHA is supposed to help people who due to health or not being able to work, cannot afford to pay their rent, when they have any reduction being applied to housing under UC.

 

[tomtom256]

It's called local housing allowance, basically you are only entitled to presumably the one bedroom rate, as such thats all you will receive.

 

If your tenancy agreement states it's a three bed then that is what it is. Unless your landlord changes it I can't see anything changing in repsect of the LHA paid to you.

 

UC is not deducting anything, they are paying what you are entitled to.

[unclebulgaria67]

OP is describing Social Rented Sector e.g. Council or Housing Association, where 1 person in a 3 bed house would receive rent amount, less 25% deduction.

 

The LHA rate is Private Rented Sector, where 1 person in a 3 bed house only receives the 1 bed LHA rate if aged over 35 or is exempt from shared room rate if below 35.

[tomtom256]

In essence its the same thing though, but i did miss the council bit

 

LHA rates or bedroom tax/under occupancy, however you want to call it.

 

They will only pay you the rate you are entitled to, based on the property and how many people live in it.

[brassnecked]

For clarity is this a Council or Housing Association property at Social Rent?

[Shelley181146]

For clarification I am referring to Council tenancy, but the link Unclebulgaria67 has provided does not involve my situation as this is not a House of Multiple Occupation (HMO).

 

There are widespread (across the country) appeals on-going presently because the council do not have sufficient properties for people in similar circumstances to down size, meaning we are being penalised and having to find the 'Under Occupancy' premium.

 

They are using the fact that tenants signed for a 3 bedroom property and therefore still remains a 3 bedroom property. However, they are not taking into consideration that thousands of tenants moved into their properties long before this 'tax' into force and do not have sufficient properties to downsize those tenants.

 

You are digressing from my original questions in regards to fire safety regulations, and if the room is not heated the same as all other rooms in the property or sufficient furniture cannot fit in the 'available' floor space then I have a case to challenge the DWP/Council.

 

FtT judges do not fully understand the particulars of these cases and therefore people can further appeal to the UtT.

 

Bedroom Tax research evidence.doc

[Shelley181146]

On 10/05/2019 at 07:25, tomtom256 said:

In essence its the same thing though, but i did miss the council bit

 

LHA rates or bedroom tax/under occupancy, however you want to call it.

 

They will only pay you the rate you are entitled to, based on the property and how many people live in it.

But tenants are entitled to challenge this as caselaw has been fulfilled by SSWP v Nelson(2014) UKUT 525 (AAC)  

[tomtom256]

Yes tenants are, but the caselaw is specific to that case and the findings outlined in it.

 

You will need to use what it raised as your grounds for arguing the reduction is wrong.

 

I would argue that just because a room is not heated in a certain way that it would stop it being used as a bedroom. Many old houses do not have central heating, yet use the bedrooms accordingly.

 

Having re-read the OP I am also confused, as you state you tried to appeal last year, but only claimed UC in March. If you didn't have a reduction until March what did you try to appeal last year with your local council?

 

[unclebulgaria67]

The legal challenge here is really not about a benefits deduction, as an individual claimant. ( help may be available under Council Discretionary Housing Allowance, if UC is not covering the full rent) 

 

Say you did take this to a Court Tribunal, no Judge is going to say that it is wrong for DWP to make the deduction for spare bedrooms. The Government will have passed legislation that allows the spare room deduction. As far as I understand it a Court Tribunal Judge would normally only rule on DWP not applying legislation correctly. 

 

 If the house does not technically have 3 bedrooms for any reasons you can prove, then your complaint is with the landlord or their agent. Trying to get the house rated as having less than 3 bedrooms. It might not help, as you are still only entitled to a 1 bed rate.

 

Go to a housing charity such as Shelter and ask for their guidance on your legal rights in this situation. 

 

Here is last parliament memorandum that I could find on this subject.

 

http://www.legislation.gov.uk/uksi/2017/213/pdfs/uksiem_20170213_en.pdf

[Shelley181146]

Dependending upon the benefit you may be claiming, depends on whether you appeal this scenario to the Council or via DWP because they are making the deductions from your benefit.

If you are receiving HB - then you would appeal to the council, if you are in receipt of UC then you appeal via DWP.

However, I was misinformed by the council last year, even though UC was in place and was advised I needed to liaise with the Housing Manager. This delayed my appeal to the DWP, but was granted because I had evidence that the council had provided inaccurate information.

Since then, I returned to work but the appeal was still due to be heard by The First tier Tribunal, who lacked experience of these cases and rejected my appeal. Due to their errors in Law I have the option to take my case to the Upper tier Tribunal, which is what I am preparing for. 

I had an accident in work in March, hence my return to UC  and I now continue with the tribunal.

Shelter are already too far stretched in their resources and I know from past experience that CAG has very knowledgable legal guys here, which is why I posted my question.

 

I am somewhat surprised that you havent received queries in this regard, and it appears that I have more knowledge about my case, so with respect guys I will leave it there.

 

I will come back and post the outcome when the case is completed. Thanks everyone.

 

 

[unclebulgaria67]

Good luck. Would suggest that you contact organisations that have taken action previously against Government about housing, as they will have more information, which will help inform you about best way forward.

 

Having had a quick look into this, there seems to be quite a lot going on with bedroom tax. Apparently there will be a Supreme Court case at some point. This is a link to an Appeal court case.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2018/548.html