Govan Law Centre challenges bedroom tax decisions before 1 April 2013 and poor advice by local authorities

Govan Law Centre is concerned that many local authorities in Scotland, and across the United Kingdom, have been issuing 'bedroom tax ' decision letters to tenants before the under-occupancy changes to UK housing benefit law came into force on 1 April 2013 (regulation 5).  We are currently challenging this practice and will provide progress updates on this blog in due course.

GLC is also aware that some local authorities in Scotland and England have wrongly advised tenants that they cannot appeal a decision to reduce their housing benefit because of the bedroom tax - that advice is wrong, and any such refusal would be unlawful, as decisions to reduce housing benefit are subject to review and appeal in terms of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations, as amended, in the normal way.

Many councils - including Glasgow City Council - have issued tenants across the UK with decision letters reducing their housing benefit in light of the new 'B13' bedroom tax regulation (see also here for a consolidated set of the 2006 Housing Benefit Regulations as amended) in February and March of this year. In general, tenants have one month to seek a review and/or appeal of a housing benefit decision (unless they have grounds for a late appeal), but many tenants will have only been aware of their rights relatively recently - for example GLC's bedroom tax toolkit was only published earlier this month.

However, the 2006 Housing Benefit regulations make it clear that 'a change in circumstances' which affects entitlement (in this case, deductions from the commencement of the bedroom tax on 1 April 2013) 'shall take effect from the first day of the benefit week following the date on which the change of circumstances actually occurs' (see reg 79 of the 2006 regulations as amended).

Reg 90 of the 2006 regulations makes it clear that decision letters should be intimated to tenants 'forthwith, or as soon as reasonably practicable thereafter, or within 14 days of that decision'. The English courts have generally held if a defective decision letter does not cause prejudice to the claimant then its validity should be upheld; however, if local authorities refuse to review bedroom tax decisions issued before 1 April 2013 by claiming the tenant's dispute letter is too late, there would be grounds to argue the council had indeed caused prejudice to the tenant.

The DWP's own guidance on the bedroom tax (HB/CTB Circular A4/2012) advises local authorities not to issue bedroom tax decisions before 1 April: 'As an award notice cannot be sent before the legislation comes in to force, you may wish to combine this notification with the annual review letter in April to avoid multiple communications' (see para 25). There is therefore little doubt that many local authorities have acted prematurely.

What should you do?
If you feel aggrieved by a reduction in your housing benefit because of the bedroom tax and believe you are entitled to the use of all of your bedrooms on human right grounds, download GLC's bedroom tax toolkit and challenge your council's decision - you still have time to do this, and if your decision letter was issued in February or March, use the arguments above to say why your challenge is not late.

GLC's launches draft Housing (Scotland) Bill to meet the needs and aspirations of Scots

Govan Law Centre (GLC) believes that in the 21st century it is time to strengthen and improve the rights of tenants (in both the social and private rented sectors), and the rights of homeless Scots and Scottish gyspy-travellers; it is not a time to undermine, weaken or remove the rights of people in Scotland.

We understand the Scottish Government may be introducing a new Housing (Scotland) Bill in the near future. Here is what we would like to see in that Bill. We believe our recommendations can meet the needs and aspirations of Scots, and make a positive and meaningful difference to the quality of life for hundreds of thousands of people.

We would like to hear your thoughts and views on our ideas, and you can either leave a comment below or e-mail us on m@ govanlc.com with your feedback. We have set out examples below of what we think Scotland needs to see in a forthcoming Housing (Scotland) Bill.

Govan Law Centre’s proposed future Housing (Scotland) Bill

[1] Statement on the abolition of the eviction of Scottish secure tenants - the Scottish Ministers must by 31st December 2015, prepare and publish a statement setting out the measures which social landlords have taken, are taking, and intend to take for the purpose of abolishing eviction for rent arrears in Scotland, and the statement must specify a target date for abolition (which must be no later than 31 December 2018 for the achievement of that purpose, and must also specify interim objectives towards the achievement of that purpose);

[2] A new duty on the Scottish Ministers to develop and implement a national prevention of homelessness strategy;

[3] A new duty on Scottish local authorities (amending section 11 of the Homelessness etc., (Scotland) Act 2003) to provide access to a range of free co-ordinated services, including independent legal advice and representation, money advice, welfare benefits advice and social care services to prevent people facing eviction or repossession becoming homeless; and for local authorities to provide or facilitate dedicated tenancy sustainment protection officers in their localities;

[4] An amendment to section 16 of the Housing (Scotland) Act 2001 to prevent tenants of registered social landlords from being evicted due to the non-payment of the bedroom tax;

[5] To extend the landlord’s Pre-Action Requirement obligations to help tenants in rent arrears after the Notice of Proceeding for Recovery of Possession is served and not just before; and to require social landlords to provide such advice and assistance to enable unbanked tenants in receipt of the Universal Credit obtain access to appropriate banking services;

[6] To introduce a new system of regulation for fair rents in the private rented sector;

[7] To introduce a new form of Scottish secure tenancy for gypsy-travellers in Scotland;

[8] To amend section 5 of the Housing (Scotland) Act 2001 to enable local authorities to request registered social landlord to provide interim or temporary accommodation to those homeless persons to whom the local authority owes a duty under section 31(2) of the Housing (Scotland) Act 1987.

Empowering tenants to use the law to challenge bedroom tax decisions: GLC statement

Last week the Chartered Institute of Housing and the National Housing Federation reportedly ‘slated’ the idea of tenants appealing bedroom tax decisions, accusing take-up appeal campaigns of giving false hope, slowing down the process for good cases, and creating a scenario where ‘multiple appeals’ would be dismissed en masse.[1]

Govan Law Centre (GLC) believes there are good reasons for most people to challenge their local authority’s decision to impose under-occupancy deductions to their housing benefit. First, there are already 10 judicial reviews in England and Wales challenging various aspects of the bedroom tax on different legal grounds; a number of judicial reviews in Scotland are expected shortly. Furthermore, it is important to recognise that there are many separate grounds of challenge, based upon process, the facts, and the law in relation to tenants who have different facts and circumstances.

In the cases of Burnip, Trengove, Gorry v SSWP [2012] EWCA Civ 629 the Court of Appeal held that the state’s failure to provide disabled housing benefit claimants’ with sufficient resources to meet their essential housing needs constituted unlawful discrimination contrary to Article 14 ECHR. The Secretary of State for Works and Pensions recently abandoned his department’s appeal against this decision in the UK Supreme Court. Clearly, there is scope and reasonable prospects for legal challenges to bedroom tax decisions.

Under the ‘anti-test case rules’ if a claimant does not lodge a review and tribunal appeal, then they cannot obtain backdated payments in the event such decisions are subsequently judged to be unlawful by the court. We are in unchartered waters, and lodging an appeal at the very simplest level protects a tenant’s position with respect to future legal developments. It is a straightforward process of completing a piece of paper.

GLC’s free toolkit on how to challenge bedroom tax decisions makes it clear legal arguments are untested, and that there is no guarantee of success. But there are a number of stateable arguments in fact and law. We do not give ‘false hope’, rather we explain the rights that all tenants have. We believe in empowering tenants and giving them the choice to pursue their rights and protect and preserve their position in law.

Our toolkit does not rely on a standardised appeal, instead we provide illustrations of the many scenarios tenants are faced with, and encourage them to adapt and tailor these to fit their own factual position. Every case will turn on its own facts and circumstances, as a matter of law and natural justice.

It regrettable that the Chartered Institute and National Housing Federation has been so pre-judgmental by wrongly suggesting appeals will be dismissed en masse, and so dismissive by suggesting the exercising of tenants’ rights will undermine unspecified good cases. Neither those who represent the Federation or the Chartered Institute risk eviction from their homes, and homelessness, through the bedroom tax. Such housing bodies should be working with campaigners to explore every possibility to mitigate the impact of the bedroom tax.

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[1] http://www.insidehousing.co.uk/tenancies/housing-bodies-slate-bedroom-tax-appeals/6526468.article

Court rules Interpretation & Legislative Reform (Scotland) Act 2010 does not apply to Scottish PAR, as repossession action dismissed as incompetent

Sheriff Reid at Glasgow Sheriff Court has ruled that the Interpretation and Legislative Reform (Scotland Act 2010 (ILR(S) Act 2010) does not apply to The Applications by Creditors (Pre-Action Requirements) (Scotland) Order 2010 (SSI 2010/317 - the 'PAR')) in finding that a lender had raised incompetent mortgage repossession proceedings which did not comply with the Scottish PAR, and fell to be dismissed.

In a very thoughtful and complex judgment in the case of FirstPlus Financial Group plc v. Pervez, Sheriff Reid explains how the term 'default' as it appears in the PAR must bear the same meaning as it does in the relevant primary legislation - the Conveyaning and Feudal Reform (Scotland) Act 1970 and the Heritable Securities (Scotland) Act 1894. This was necessary in terms of section 11 of the Interpretation Act 1978.

In so doing, the court preferred the construction of Sheriff Deutsch in the cases of NRAM, Santander, and Nationwide Building Society v. Doyle and four others (cases where GLC acted for all defenders) and not the approach that Sheriff Bicket took at Hamilton Sheriff Court in the case of Accord Mortgages v. Dickson, which GLC believes was wrongly decided in relation to Sheriff Bicket holding that the ILR(S) Act 2010 applied to the PAR which led to him not following the decisions of NRAM v. Millar and RBS plc v. McConnell (cases where GLC acted for all defenders).

The judgment in Pervez examines many other important issues in relation to Scottish repossession law, and clarifies the proper statutory construction that lenders should apply to the PAR. The case of Pervez represented a strategic attempt by Optima Legal - a top 100 UK firm - to challenge the ratio of Sheriff Deutsch's judgment in NRAM v Millar, which had been appealed to the Inner House by NRAM but then subsequently dismissed with expenses in favour of the defender.

The pursuer in the case of Pervez was represented by Mr Gannon of Optima Legal (Glasgow), and the Mr Pervez was represented by GLC's Principal Solicitor, Mike Dailly. FirstPlus Financial Group plc
is a subsidiary company of Barclays Bank plc.

City Council report confirms law centre most popular support organisation in Govanhill for Roma community

A report commissioned by Glasgow City Council's Development and Regeneration Service has confirmed that Govanhill Law Centre (GhLC) was the most popular support service amongst members of the Slovak and Czech Roma community in Glasgow's Southside.

GhLC is part of the Govan Law Centre Trust. The report by Peter Crkon found that awareness of advocacy and support organisations in the Govanhill area of the City was reasonably high with over 60% of respondents having used local agencies at least occasionally, and 42% using them regularly. Awareness amongst those surveyed by the council was as follows:

• 66% - Govanhill Law Centre
• 59% - Crossroads
• 9% - Glasgow Regeneration Agency
• 6% - Daisy Street Neighbourhood Centre
• 2% - social work, health visitors and interpreters

The report was tasked with examining the economic performance and human capital levels of Slovak and Czech Romani migrants who lived in the neighbourhood of Govanhill, Glasgow. The report looked at a number of factors including education levels, English language skills, length of residence, employment and labour force participation: 'An Assessment of the Human Capital Levels and Economic Performance of A8 Romani Migrants in Govanhill', Peter Crkon, DRS, Glasgow City Council.

GLC's work in Govanhill is funded and supported by the Scottish Government.

Launch of GLC 'toolkit guide' calling for mass take-up challenge to bedroom tax housing benefit decisions

Govan Law Centre has launched a free 'toolkit guide' to help tenants challenge cuts to their housing benefit with the introduction of the bedroom tax from this month.  Tenants issued with a ‘bedroom tax’ decision by their local council only have one month to challenge it. They can only appeal later than this if they have a good reason for the delay, such as illness.

GLC's toolkit contains a number of untested legal arguments which tenants can select and insert into a pro forma ‘Dispute Form’. Some of these relate to court challenges taking place in England and Wales, and if these are successful tenants can only benefit from them for past deductions if they have lodged a ‘Dispute Form’ with their council because of the 'anti-test case rules'.

GLC’s toolkit provides step by step guidance and illustrations on how to complete a ‘Dispute Form’ – what to say, where to send it to, where you can get further advice, what will happen next.  We hope the toolkit will be of assistance to both tenants and advisors alike. We believe many tenants will have grounds in principle to challenge

If you would like a copy of GLC’s toolkit guide please visit our webpage here, and we will provide you with the option to download the toolkit in either PDF or rich text formats, and in addition we will e-mail you the links to download it too. We are asking for the first part of your postcode so that we can work out the level of take up across the country.

Although our guide is aimed specifically at Scotland for simplicity, the guidance and pro forma guidance is equally applicable in England and Wales as housing benefit is a UK-wide law, and the arguments for challenging the bedroom tax are also UK-wide.

SSE fined £10.5m by Ofgem for misselling; £5m fund set up for consumers, do you have a claim?

Ofgem, the UK energy regulator, has today published its intention to fine SSE £10.5 million for numerous breaches of its obligations relating to telephone, in store and doorstep sales activities. The level of fine reflects the seriousness and duration of breaches, the likely substantial harm that they have caused and the likely gain to SSE.

Ofgem found that a failure of SSE’s management arrangements meant that insufficient attention was paid to ensuring compliance with obligations. This enabled misleading and unsubstantiated statements to be made by sales agents to potential customers about savings. Ofgem found failings at all stages of SSE’s sales processes, from the opening lines on the doorstep, in-store or over the phone through to the confirmation process which follows a sale.

In particular, SSE consistently failed, over a prolonged period of time, to conduct its sales activities in a way that would provide clear and accurate information on prices and potential savings to enable customers to make an informed decision about whether to switch suppliers. Although SSE terminated doorstep sales in July 2011, failures in telephone and in-store sales persisted.

SSE has in place a £5 million misselling fund, where customers can receive compensation if they have been missold to. Ofgem would encourage anyone who believes they have been missold to by SSE to call the fund’s dedicated line on 0845 0707 388.