10/09/2014

Affordable Homes Bill & the bedroom tax

I haven’t written about the Affordable Homes Bill, partly because time, and partly because I was deeply cynical about the Bill’s prospects of getting anywhere pre-election, and the omissions it contained. (In fact for many of the same reasons contained in this rant).

But with great gratitude, we have a guest post by Dr Joe Wills, lecturer at the School of Law, University of Leicester, and very good it is.


 

The Affordable Homes Bill: A Partial Solution

On Friday 5th September the Affordable Homes Bill was approved at second reading in the House of Commons by 306 votes to 231. The Private Members Bill, introduced by Liberal Democrat MP Andrew George, may bring about major changes to the Coalition Government’s ‘bedroom tax’ policy if enacted into law.

Since April 2013, tenants in social housing who are deemed to have excess bedrooms for their needs have seen their housing benefit cut by up to 25%. The policy has been widely criticised for causing financial hardship, uncertainty and stress for many affected households, particularly for persons with disabilities. If Mr George’s bill were passed into law it would mean that tenants who are not found suitable smaller accommodation would be exempt from the reduction, as would disabled adults who need their own bedroom or who have adapted homes.

The Proposed Reforms

The regulations governing the ‘bedroom tax’ have meant that working age social housing tenants in receipt of housing benefit (HB) have experienced a reduction by between 14 and 25% in their benefit entitlement where their housing is deemed too large for their needs. The policy permits one bedroom for each person or couple living as part of the household and also expects two children of the same gender or two children under 10 regardless of gender to share a bedroom. The regulations also allow one additional bedroom where the claimant or the claimant’s partner requires an overnight carer or for a disabled child who cannot share a bedroom with a sibling as a result of disability.

The proposed bill would provide further exemptions from HB reductions in three instances. Firstly, it would exempt households that can produce evidence to a local authority that the dwelling has been adapted to meet the disability need of a member of the household and that the cost of the adaptation is not less than an amount that will be set by future regulations made by the Secretary of State.

Secondly, the bill would permit an additional bedroom for the HB claimant, their partner or a close relative if they are in receipt of any component of Disability Living Allowance or of Personal Independence Payment and the relevant authority is satisfied that they are not reasonably able to share a bedroom with their partner or sibling. This would extend the exemption for disabled children to adults as well.

Finally, households will be exempted from the reduction in housing benefits where ‘neither the claimant’s landlord nor a local authority, where it is not the landlord, has made a reasonable offer of alternative accommodation’.

Comment

This bill, as it is currently drafted, undoubtedly goes some way to addressing concerns raised about the adverse impact of the bedroom tax. Excluding adapted accommodation from benefit reduction is a step forward. Many persons with disabilities have significantly adapted accommodation, for example ramps for wheelchair access, internal lifts, ceiling hoists and specially adapted baths and toilets. It is estimated that approximately 100,000 households affected by the bedroom tax have been adapted or were purpose built to accommodate the tenant’s needs arising from disability. Currently such households may apply for discretionary housing payments (DHPs) to make up the shortfall in the HB but as the House of Commons Work and Pensions Committee has noted, the lack of detailed guidance for the award of DHPs and their short-term and temporary nature has caused a great deal of stress and uncertainty for affected households that have to apply and re-apply for them.

Extending the current provision of an extra bedroom for children who cannot share as a result of their disability to adults in couples who cannot share for the same reason is also to be welcomed. It is fragrantly discriminatory to penalise persons with disabilities because they cannot share a room with their partner due to needing a separate specialist bed, space for careers and/or room to manoeuvre a wheelchair for example. This category of disabled HB claimants are a small and readily definable group and it is unlikely that exempting them from the deduction would give rise to any significant financial cost or administrative difficulties. In contrast, impelling such claimants to go through the cumbersome task of repeated DHP applications whilst relying upon the vagaries of temporary and discretionary pay-outs seems needlessly cruel and arbitrary.

Lastly, the requirement that claimants must be made a ‘reasonable offer of alternative accommodation’ before their HB is cut is potentially the most far-reaching reform proposal. One of the main criticisms levelled at the bedroom tax is that its purported aim of encouraging HB claimants to downsize is flawed due to the gap between the supply and demand for smaller social housing that prevents households from downsizing even if they wished to. Indeed, recent figures obtained by a freedom of information request by the Labour party revealed that up to 96% of those affected by the policy were trapped in their larger homes because there is nowhere smaller within the local social housing stock to take them. If these projections are correct then the proposed requirement of reasonable alternative accommodation could for all practical purposes signify the beginning of the end of the bedroom tax.

In spite of these welcome reform proposals to this deeply unpopular policy, the Bill as it currently stands has a number of shortcomings. Firstly, the additional exemptions do not address all of the circumstances that give rise to unjust and discriminatory outcomes. For example, they do not cover households that need additional rooms for overnight carers for disabled children. Nor do they cover households that require a spare room to store essential medical equipment such as wheel chairs, oxygen tanks and so on. The new exemptions also fail to address the negative impact of the policy on single parents who do not live full time with their children. These parents may wish to have a ‘spare’ room to allow their children to stay when they visit them, but under the current policy they are put in a catch 22 situation of having to relocate to one-bedroom properties, and therefore not be able to properly accommodate their children, or be placed in extreme hardship possibly resulting in their inability to afford the rent.

Another concern with the bill is that, in relation to the first two exemptions, it places the burden upon the HB claimant to demonstrate to their local authority that they should be exempted. In the first place, this will depend upon these claimants being made aware that they are entitled to apply for these exemptions. Beyond that, the process of making the application may be long and cumbersome. For example, in relation to the adapted homes exemption, the HB claimant must establish their case by providing ‘the relevant authority with… certificates, documents, information or evidence’ and this claim will only be accepted if ‘the cost of the adaptation is not less than an amount prescribed in regulations made by the Secretary of State’. The calculation of adaptation costs will not always be a straightforward matter and will in some instances be likely to give rise to protracted claim, rejection and appeal processes.

Finally, the bill is likely to give rise to a number of complex legal issues: what forms of adaptation will be taken into account? When will an individual not ‘reasonably’ be able to share a bedroom due to disability? And most significantly: what will constitute ‘a reasonable offer of alternative accommodation’? In relation to the latter, the bill states that this may be defined by subsequent Regulations. Given the enormous variation in people’s housing needs, community and family ties and emotional attachment to their locality, legal guidelines that attempt to clarify the meaning of ‘a reasonable offer of alternative accommodation’ will no doubt trigger further litigation and judicial review claims.

Conclusion

The Affordable Homes Bill is still in the early stages of its legislative drafting. If it enters into law, it will likely be significantly amended. As it currently stands, the additional proposed exemptions from the bedroom tax are to be welcomed for their potential to shield affected individuals from the adverse impact of the policy. However, the exemptions do not address all the situations that currently give rise to discriminatory and unjust outcomes and are also likely to give rise to protracted and costly administrative and legal disputes in some instances. It may simply be easier and preferable to abolish the bedroom tax altogether.

Dr Joe Wills
University of Leicester, School of Law

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

24 Comments

  1. Bryan

    I not too worried at the moment as it will never become law in its present state. What is necessary though is an amendment of s130A of the SSC&B Act 1992, so that the current very wide and general enabling provisions governing “appropriate maximum HB” are restricted slightly. There should also be a corresponding amendment to the Welfare Reform Act 2012.

    If this Bill can progress to a stage where it stands a serious chance of getting onto the statute books, there will be plenty of opportunity to tweak the detail and perhaps extend protection to other groups.

    Reply
  2. joehalewood

    Just a thought – Is there a legal definition of “deemed?”

    “Since April 2013, tenants in social housing who are DEEMED to have excess bedrooms….(AND) “…where their housing is DEEMED too large for their needs…”

    “When you talk of a thing being deemed to be something, you do not mean to say that it is that which it is to be deemed to be. It is rather an admission that it is not what it is to be deemed to be, and that, notwithstanding it is not that particular thing, nevertheless it is to be deemed to be that thing.”

    Given the A4 2012 states the term ‘consider’ on 37 occasions and the word “deem” on just two and almost every LA says its not up to us its up to the landlord…

    Reply
    • Giles Peaker

      No, ‘deemed’ does not mean that. Just means ‘is such for the purposes of..’. Nothing there Joe.

      Reply
  3. Bryan

    Looking at it from a Scots Perspective

    If the policy behind B13 is justified by the policy intent of reducing underoccupation (and later in MA as part of a raft of spending cuts) then given the Scottish Government is piling in money to mitigate the bedroom tax then in effect either:

    ‘It is justified for the Westminster Government to implement a policy that due to the differences in housing policy forces the Scottish Government to spend money in mitigation so that the Westminster Government can reduce underoccupation Social Housing in England and Wales’; or

    ‘It is not justified that people in Scotland face discrimination in order to reduce underoccupation in Social Housing in England and Wales’

    Either way it’s a hot potato

    Thus the type of judgement where you have to hope the Judiciary can at least play a mean pin-ball and I am left wondering what paragraph 2 of MA means if it doesn’t mean what it says… In effect the judgement has become ‘Government policy is justified because it is Government Policy without regard to the intent of that policy’, so back to the old ‘Judiciary shouldn’t interfere’ which has blighted the majority of case law on Human Rights before Burnip.

    Reply
    • Giles Peaker

      No, because the Scottish decision to ameliorate the policy was a devolved decision, and a political one. There is no evidence that there is a significant difference in ‘under occupation’ between Scotland and England and Wales. So, if the policy rationale stands for the UK, there is no discrimination against the Scots.

      Reply
  4. chris+lowry

    The third proposal will effectively have a serious impact on some social Housing Providers I have referred to on here, justly in my view. At least one Housing Authority and one major Housing Association have done absolutely nothing to assist their tenants to downsize and whilst there may be a chronic shortage of smaller homes in London, it is certainly not the case in Gloucestershire. The above failure of the two bodies mentioned to do this means that there is no evidence that there are not enough smaller properties as the exercise does not appear to have been undertaken at all. In effect this now means that either all of their under-occupying tenants will be exempted or that people will be exchanging properties and moving very quickly. It still does not address (I suspect for political reasons) the main cause of under-occupying; the elderly, who still sit in their 3 or 4 bedroom Council homes in large numbers, many years after the family has flown the nest. I suspect that it would be a brave Government of any colour that redeemed that particular exemption.

    Reply
  5. Debbie

    Oh, there is SO much wrong with this. It’s hard to go in to the whole thing….

    The cost of the adaption is not less than an amount that will be set by future regulations made by the secretary of state.
    Sounds like a ‘get out clause’. They can make that up, as they go along??
    And, yes, what forms of adaptation will be taken into account??
    That’s a whole can of worms.
    And the phrase, ‘SIGNIFICANTLY adapted accommodation. Has no clarification.
    WHAT, will constitute ‘a reasonable offer of alternative accommodation’.
    Where are ALL these smaller, pre-adapted properties, (Perhaps, purpose built), that would cover ALL disabilities?? In particular, bungalows??
    Given that, a Disabled persons needs can change. And can’t be predicted.
    Or, do they have to move again? Or, perhaps wait, up to 2 years, for another adaptation to be done???
    Yes, many Disabled people may live in properties that don’t meet all their needs.
    MANY properties MAY not be suitable for all adaptions, due to the layout of rooms etc. There may be no space to widen doorways, or put a lift in, or have wheelchair access, or, build a ramp. BUT, there are no alternatives. Especially, for people to remain in the same area, where their support is.
    UNLESS a MAJOR building programme of building, purpose built, one level, social housing, properties, is undertaken, EVERYWHERE. It would, NEVER work.
    And, that is not going to happen!!!
    The Bill, will be, ‘significantly amended’. As it go’s along??
    So, who’s advise will they seek then??
    They have taken no notice so far, even though they have been presented with so much evidence. Of the stress and distress. And, even death, the BT policy has caused. By ALL, Not, just the Disabled.
    It’s meant to be a ‘glimmer of hope’. I don’t think so!!
    Don’t try and ‘tweak’ it.
    ABOLISH IT ALTOGETHER.

    Reply
  6. Debbie

    And, to add.
    Applying for a DHP, seems to be a post code lottery.
    Many councils, taking DLA as income. So, they are refused and told they can afford to pay. Which is totally outrageous. It’s meant for their care and mobility. NOT for paying rent.
    And, yet, you can’t appeal.

    And, crucially, there are STILL. MANY, social landlords that give NO support at all, to their tenants.
    And, so MANY Councils, telling people, they can’t appeal the BT!!!!

    Reply
    • Giles Peaker

      Taking DLA into account for DHP is subject to a judicial review against Sandwell Council, currently underway. It may yet turn out to be unlawful.

      Reply
    • david

      debbie your council is wrong… dla is not means tested…. but carers allowence is…

      Reply
  7. Coral Bru Cuadrada

    There is another vulnerable group that has been completely forgotten – victims of domestic violence.
    Many refuges have accommodation comprised of more than one bedroom. Victims often come to the refuges with nothing more than what they are wearing. They cannot afford to pay for this dreaded tax, which only makes their situation more desperate. Yet the new definition of ‘specified exempt accommodation’ does not provide protection from the bedroom tax.
    I would like to see either the definition amended to protect victims from the bedroom tax or refuges included in the Affordable Homes Bill so that this growing client group is able to start rebuilding their lives without additional cruel pressures.

    Reply
    • Giles Peaker

      The thing is a fudge. It will not get passed in its current form, and will probably be overtaken by the election.

      Reply
  8. Lewis

    Just to follow on from what chris+lowry said, surely the 3rd clause would mean that a housing provider could just decide not to offer another accommodation and the tenants would be exempt. Considering how many Housing Associations were against the ‘tax’ to begin with, they will presumably exorcise this right. Presuming councils are more likely to enforce this, it would add a rather key disparity between the two types of providers which might have a knock on effect to desirability of council stock

    Reply
    • Giles Peaker

      I don’t see why councils and landlords would behave any differently to housing associations. But the majority of landlords have not taken any steps to avoid the imposition of the bedroomn tax on their tenants, and I doubt that this would change.

      Reply
  9. Jayson+carmichael

    I will bring it up at my upper tribunal hearing. I know it’s got no legal legs but it’s the first time a block of people have been exempted by a parliamentary vote. The last exemptions , foster Carers/ armed services was applied by IDS alone due to legal pressure. It can’t do my case any harm bringing it up when even govt ministers have voted for it.

    Reply
  10. Jayson+carmichael

    Only time our discrete group that ftt refer to has been addressed by parliamentary vote

    Reply
  11. Antony Richards

    Taking aside George’s bill, is it not a case of social housing catching up with the PRS. Many moons ago the Labour government introduced LHA instead of HB. It bears the same principles as the Welfare Reform Act. The only difference that I can see is the RSLs charge a lower rent to start with.

    Reply
    • Giles Peaker

      *Sighs* No. I suppose I have to point out yet again two crucial differences.

      i) LHA is predicted on a notional rent level per number of bedrooms, not an actual number of bedrooms. So you can have as many bedrooms as you can find for the LHA rent level to which you are entitled.

      ii) LHA was not changed based on the number of bedrooms people actually had. The bedroom tax however is applied to the properties (and rent levels) of people’s existing homes and benefit claims.

      For these reasons it is both fundamentally different to and arguably less fair than the LHA provisions.

      Reply
  12. Bryan

    With regards to Joe’s third to last paragraph this can be done in two ways already

    HB Reg 12BA & HB Reg 75E. I believe if memory serves well, the burden of proof is on the tenant in both situations, so do not see anything special about the burden of proof shifting

    Reply
    • Joe Wills

      Hi Bryan,

      Perhaps I was not as clear as I should have been on that point. I did not mean to suggest that there was anything particularly novel about the evidential burden resting upon the tenant in such circumstances, but rather that that is one of the inherent shortcomings of a (for want of a better word) retrospective size criteria in HB. In the context of specially adapted accommodation, I can imagine there will be particular difficulties that will arise, e.g. finding all the relevant receipts, justifying each claim by reference to a disability need etc.

      Of course, these burdens could be justified on the basis that they are necessary to achieve the government’s objectives of fiscal savings and freeing up larger sized social housing, but the current policy has not been particularly affective at achieving either of these goals and the current bill would further undermine both. Ultimately it seems to me that attempts to deal with the chronic shortage of suitable affordable housing by punitive ‘one size fits (nearly) all’ criteria unjustly shift the blame and the burden for systemic social problems onto particular families and individuals. As I said, this bill is a step in the right direction, but it would be better to abandon this approach all together rather than tinkering around the edges.

      Reply
  13. Bill Heywood

    If tenants would be exempt unless they refuse a reasonable offer of smaller accommodation then surely the best thing for all concerned is for tenants not to apply for alternative accommodation. No application, no offer, no refusal – tenants stay exempt permanently. Happy landlords, happy tenants.

    Reply
    • Debbie

      If the Disabled in their many forms are not exempted. They are told to apply for a DHP.
      Nothing to say, they would definitely be awarded it.
      That’s one big issue.
      Added to people are ‘being blackmailed’. By being told if they are not actively looking to downsize. They may NOT get another DHP.
      This, IS a huge problem. And, I have read of many cases of this happening now.

      Reply
  14. sal

    How is it fair that my son is in the military and ive been slammed with the bedroom tax, when a student goes to uni that’s ok….

    Reply
    • Giles Peaker

      It isn’t fair. Sadly, it is the law.

      Reply

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