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Forum Home  →  Discussion  →  Housing costs  →  Thread

Bedroom tax loophole - hadn’t thought of this one before

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Sharon M
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HB Anorak - 09 January 2014 12:19 PM

I shouldn’t really take too much credit, this came from an appeals officer who asked me about a Tribunal directions notice.  Because she is very anxious not to appear to be taking sides in a political debate she doesn’t want me to reveal the name of her LA or the Tribunal venue.  But it’s the Judge who spotted this one, not me.

Have to admit I am enjoying the kudos today though!

Oh you.


I think I’ve identified my first client. Thanks, HB Anorak… doing all the hard work, so we don’t have to.

Damian
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Welfare rights officer - Salford Welfare Rights Service

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Where people have been paid a DHP there doesn’t seem to be any basis for offsetting so I think they should end up with full HB for the period and the DHP on top. A bit like a Bedroom Tax Credit.

J Membery
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I think it is arguable (I will put it no more strongly than that) that if a DHP was awarded in the mistaken belief that the person was subject to the bedroom tax then this could constitute an “error..made when determining an application for a payment” which would make the DHP recoverable.

Overall, if a Council has spent it’s DHP allocation and this releases some more to be given to others in need that might not be a bad thing.

stevenmcavoy
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what is the situation with clients who take on a tenancy from a family member or partner but does so after 1996. 

say for example, original tenant has hb pre 1996 but passes away post 96, family member takes over the tenancy and immediately claims HB.

anyone know if the new tenant could use this argument?

PCLC
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Our LA Head of Policy is refusing to accept the argument, despite the guidance, and wants it tested by a Judge. If someone has a first-tier decision, could they post it, suitably redacted?

Cheers!

Lee Forrest
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Team leader of Financial and Social Inclusion - Karbon Homes, Newcastle

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We had our first exemption confirmed today (I’d submitted the request in the middle of December). Wonderful news for a resident with a two bedroom under occupation.

May the DWP take as long to sort out their mistake as they did to realise it had happened….

stevenmcavoy
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PCLC - 13 January 2014 01:50 PM

Our LA Head of Policy is refusing to accept the argument, despite the guidance, and wants it tested by a Judge. If someone has a first-tier decision, could they post it, suitably redacted?

Cheers!

is the dwp circular not enough?

nevip
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J Membery - 10 January 2014 02:06 PM

I think it is arguable (I will put it no more strongly than that) that if a DHP was awarded in the mistaken belief that the person was subject to the bedroom tax then this could constitute an “error..made when determining an application for a payment” which would make the DHP recoverable.

Overall, if a Council has spent it’s DHP allocation and this releases some more to be given to others in need that might not be a bad thing.

This raises an interesting point and certain claimants are going to want answers to this.  Reg 8(2)(b) of the DFA Regs states that the LA can recover “where an error has been made when determining the application for a payment, and as a consequence of that error, a payment has been made which would not have been made but for that error”.  Read as a whole, and the commentary to the reg reads it this way, it is highly arguable that the error has to arise as a part of the process in determining the DFA itself.  The use of the word “when” supports that view. 

That said, the question then remains, is reg 8(1) wide enough to found recovery by giving the LA a power to review the award decision and to cancel it, notwithstanding that it is silent as to recovery.  I, personally, don’t think that it is, notwithstanding the fact that paragraph (2) is without prejudice to the generality of paragraph (1).  It is arguable that recovery can only be founded under 8(2).

 

shawn mach
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Lord Freud has said in the Lords this afternoon that the regs will be amended in March 2014

... plus see Peter’s article in the guardian @

http://www.theguardian.com/society/2014/jan/14/bedroom-tax-loophole-went-viral

PCLC
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Steven - no, the circular is not enough for him. He is just really annoying - he points to policy when it suits him, then if it does not suit him he says let it go to a Tribunal to decide. I guess today’s announcement by Lord Fraud may be enough for him - why close a “loophole” if it does not exist?

stevenmcavoy
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PCLC - 15 January 2014 01:56 PM

Steven - no, the circular is not enough for him. He is just really annoying - he points to policy when it suits him, then if it does not suit him he says let it go to a Tribunal to decide. I guess today’s announcement by Lord Fraud may be enough for him - why close a “loophole” if it does not exist?

shutting the invisible door.

shawn mach
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apologies for the dodgy post on this thread .... and thanks for stepping in and responding you guys .. much appreciated ...

post now deleleted/account suspended

dave_dave
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I only saw the first ‘dodgy post’ and the initial couple of responses.  But…..seems a bit harsh, was that really trolling? 

I think the point that was trying to be made, albeit somewhat ineloquently, was that it is not a very logical position to complain that LAs/DWP etc are not following guidance and instead waiting for legal clarification. 

As numerous RN posters, and indeed the judiciary, constantly remind us, follow the law, not the guidance.  I’m no fan of the bedroom tax, but P Barkers analysis is at least open to debate, and that seemed a pretty reasonable point to make to me.

shawn mach
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hi dave ... wasn’t just the post .. also that they hadn’t provide sufficient (any) bonafide org details on signing up

cheers - shawn

nevip
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I’ve no wish to comment on the appropriateness of the deleted point.  Yes, I would be one of the first to point out that it’s the law that must be followed and not the guidance where the law and the guidance conflict.  However, that’s not the case here.  The DWP circular is legal clarification which dictates the policy and (being full of words like “should” and “must”) must be followed by local authorities.  One example will suffice.

“8. Once LAs are satisfied that a claimant’s eligible rent should not have been reduced the existing decision must be revised to remove the under-occupancy reduction in the claimant’s HB from 1 April 2013 until the legislation is amended”.