In response to the so-called ‘bedroom tax’, which came into effect at the beginning of this month, the Central Legal Assistance Office has produced a helpful briefing:
CIVIL LEGAL ASSISTANCE OFFICE: BEDROOM TAX BRIEFING
When:- From 1 April 2013.
Effect:- Social sector households which contain working age claimants of housing benefit and who are deemed to under-occupy their property will have their housing benefit reduced.
• Those who are assessed as under occupying by 1 bedroom will have their housing benefit reduced by 14% of their eligible rent.
• Those who are assessed as under occupying by 2 or more bedrooms will have their housing benefit reduced by 25% of their eligible rent.
How many households will be affected?
According to Scottish Government figures approximately 105,000 households in local authority and housing association housing in Scotland will be affected. Of these, it is estimated:-
• 83,000 under-occupy by 1 bedroom;
• 22,000 under-occupy by 2 or more bedrooms.
Scottish Government research also predicts that:-
• 23,000 of the households affected have a household member with a disability which has a substantial and long term adverse effect on their ability to carry out normal day to day activities.
• 16,000 of the households affected have an aid or adaptation to their house to assist a household member with a disability.
• 22% of households affected will have an under occupation penalty of more than 10% of their income after housing benefit.
There is very limited scope for an under occupying tenant subject to move to alternative accommodation in the social rented sector. There is a dearth of 1 bedroom social rented properties. While 60% of tenants need a 1 bedroom properties to not exceed the DWP standard only 26% of occupied social rented properties have 1 bedroom.
Many tenants will be living in tenancies which they can no longer afford, whilst having no viable alternative available to them. A disproportionate amount of vulnerable clients who tend to live in Social sector accommodation will be affected. This combined with the fact that under the Universal Credit scheme the government intends to greatly reduce housing benefit payments directly to landlords is likely to lead to a greater level of rent arrears.
Most housing lawyers believe that the blanket application of the new housing benefit deductions may be challengeable through the courts on the grounds that they breach the European Convention on Human Rights, in particular Article 8: the right to respect for private and family life and Art 14: Prohibition of Discrimination. Challenges may also be available under the Equality Act 2010.
In England, Judicial Review proceedings have already been raised challenging the application of the new rules. It is likely that Scottish cases will be raised in the near future.
SCENARIOS WHERE LEGAL CHALLENGES MAY BE AVAILABLE TO CLIENTS INCLUDE THE FOLLOWING:
- If a client shares child care with a partner but faces a deduction in child benefit which will mean they can no longer maintain a property big enough to allow their children to stay over.
- If there is a person in the household suffering from a disability which has an affect on their housing needs
- If the tenant has been actively looking and applying for a smaller property but has been unsuccessful.
- If any member of the household suffers from physical or mental health problems which have an affect on their housing needs
- If any member of the household has been affected by domestic violence
- If the rooms which have been designated as bedrooms are not suitable for that purpose because of issues of size or the layout of the property, for example being asked to use a dining room or a box room as a bedroom.
AS THE LAW IN THIS AREA IS DEVELOPING WE RECOMMEND THAT IN IN THE MEANTIME ADVISERS ASSIST CLIENTS SUBJECT TO DEDUCTIONS TO TAKE THE FOLLOWING STEPS TO PROTECT THEIR POSITION:
- APPLY FOR DISCRETIONARY HOUSING BENEFIT: This is paid to meet shortfalls between Housing Benefit and Rent. It is a limited fund and payments are discretionary however, vulnerable clients in particular may receive payments. There has been an increase in the fund with guidance that the sums be used to address the effects of the new HB rules on disabled tenants and foster carers.
- SUBMIT AN APPEAL AGAINST THE DECISION TO REDUCE HOUSING BENEFIT: Claimants have one calendar month from the date when they are advised in writing that their housing benefit has been reduced to submit an appeal against that decision. If their circumstances are similar to any of the situations outlined above then they should describe their personal circumstances in the appeal and point out that the decision does not comply with the Human Rights Act 1998. Govan law centre have compiled a useful toolkit which can be downloaded from their website and which may be of assistance to advisers.
- CHECK WITH A SOLICITOR WHETHER AN ACTION FOR JUDICIAL REVIEW CAN BE RAISED: As this is a developing area of law it is likely that a number of test cases will be raised to ask the courts whether various different sets of circumstances mean that the new rules are breaching human rights laws. Advisers should check with a housing lawyer whether any given case may be appropriate for judicial review.
IF POSSIBLE ALL THREE OPTIONS SHOULD BE INVESTIGATED.
IF YOU HAVE ANY QUERIES PLEASE DO NOT HESITATE TO CONTACT US:
www.clao.org.uk 0131 2401960