Govan Law Centre’s spanner in ‘bedroom tax’ legislation

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THE social housing “bedroom tax” came into effect at the beginning of this month with local authorities and housing associations obliged to levy a charge on their tenants who are deemed to have a bedroom more than they require.

Judicial reviews are queuing up for court time across the UK. In the meantime, a bedroom tax toolkit compiled by Govan Law Centre has become something of a phenomenon since its release on 6 April.

Mike Dailly, principal solicitor at the centre, said: “We’ve had 5,000 downloads in less than a week. We ask for the first part of a postcode so we can track where they are going and the majority are being downloaded outside Scotland. But a number of blogs have adopted the link so we don’t know who downloads from them. We do know that hard copies are being circulated around community groups and advice centres.”

The toolkit provides a pro forma template for submitting a challenge to a decision of a social housing landlord to apply a charge for what it has assessed as a liable bedroom. The government prefers to call its move “ending the spare room subsidy”.

The toolkit lists seven potential appeal grounds but warns these are as yet untested in court. Dailly believes it is inevitable that most will be at some point. He said: “Social housing landlords are being pressed to apply a blanket approach – as set out in the DWP documentation along with the legislation. We argue they have a duty to make a decision on the facts and circumstances of each case. We think they can’t designate a room as a bedroom without checking its actual use. The kitchen in some properties is so small the adjacent room is actually a dining room.”

The Govan Law Centre cites an opinion by Jonathan Mitchell QC, who said it would be “going wrong in law” if a local authority determined every room that could be slept in was classified as a bedroom, whatever its characteristics or use. Dailly says the most important thing for tenants to be aware of is the deadline for lodging a challenge.

“It has to be lodged within a month of receiving intimation from their landlord that the charge is going to be levied. It is vital that tenants protect their position. There is nothing lost by challenging the decision but if they don’t they may not benefit even if some of the test cases are successful on circumstances similar to their own. There’s no cost involved in challenging and you don’t need a lawyer. Even if it’s unsuccessful in the end the tenant won’t have lost anything.”

It is not only tenants who are downloading the toolkit. “Glasgow Housing Association, Scotland’s biggest landlord, has been in contact. It is in the interests of social landlords to do what they can to prevent putting their tenants in arrears.”

While the toolkit states that Govan Law Centre will be looking for prospective test cases on which it could lead, Dailly thinks the consequences of the charge could show up in the courts very soon. “There are thousands of sisted arrears cases across Scotland while tenants are paying up a small amount – £3 or £4 a week from benefits. Their situation has been stabilised to the satisfaction of the landlord and the court. If they are suddenly running another £60 a month behind their ability to pay and the sist is recalled, the arguments on the proportionality of pressing for eviction are going to be put very soon. In our view this charge is disproportionate and deeply damaging to our communities. But from a legal perspective we will be systematic – looking at the facts and circumstances first, the process second, and then taking on the human rights arguments.”