Conservative MP Nadhim Zahawi was drafted in by the Government the other day to defend the bedroom tax on Newsnight. He tried to look confident but it was a hesitant performance for this normally gung-ho fellow. He was responding to news that half of housing association tenants may now be in arrears as a result of the under-occupancy charge, according to David Orr, chairman of the National Housing Federation.
Zahawi seemed particularly rattled when Emily Maitlis asked if this was to be the pattern for the long term: “Lots more people defaulting and you will have to bail them out and so on?”
Zahawi said: “That should not be … It is not the purpose of this policy. It’s not to make people … For example if they find themselves homeless they will not be classed as intentionally homeless by this policy. That has been put on record by government ministers in the House of Commons. It is not about us making life difficult for people; it’s about living within our means.”
The gaps indicated by ellipses are his – an inability to quite bring himself to assert confidently, “It is not the purpose of this policy to make people homeless.” In fact it looks as if the intention is certainly to drive people out of their homes – which suggests it may be unlawful (see argument set out below).
But the interesting point Zahawi makes is that no one will be deemed intentionally homeless if their eviction for arrears is caused by the bedroom tax. Normally they can be deemed intentionally homeless if evicted for arrears and as a result any right they might have to be rehoused would be lost. Even the vulnerable (those in “priority need”) would receive only the most basic help with their homelessness – some temporary emergency accommodation, lists of landlords perhaps. (Housing Act 1996, S.190)
So it’s an important protection for some tenants (the most vulnerable) – but is Zahawi right? Has such a statement been made – and if it has, does it make life easier for victims of the bedroom tax?
There is a statement on the record, prompted by a question from Labour’s Dame Anne Begg in February. In answer Minister of State Steve Webb started by asserting: “The point of the [under-occupancy] policy is not for people to be evicted, which would raise costs for the Exchequer and for the individual, but to ensure that existing housing stock is fully occupied.”
Eventually, after being pressed twice, he said:
“Although it is for local authorities to make decisions on homelessness applications as they do now under current statutory homelessness legislation, if the only reason for the person’s homelessness is a reduction in benefit that is outside their control they should not be considered intentionally homeless by the local authority. I can put that on the record and hope it is helpful.” (Hansard 27 Feb 2013 : Column 345)
This is odd since in 2010 Grant Shapps, then a Housing Minister, said of the legal definition “not intentionally homeless”: “The homelessness legislation provides an important safety net for people who become homeless through no fault of their own but is not intended to facilitate mobility among tenants in social housing.” He was talking about people moving voluntarily to find more suitable accommodation or work elsewhere.
Crucially, he continued: “The definition of intentional homelessness is set out in primary legislation, and in any particular case it is for the local housing authority to decide whether an applicant has made himself intentionally homeless.”
‘If the only reason for the person’s homelessness is a reduction in benefit that is outside their control they should not be considered intentionally homeless by the local authority. I can put that on the record’ – Steve Webb
So has the position changed since 2010? Is the legislation (in the 1996 Housing Act) now to be utilised to smooth the passage of under-occupiers from the security of their local authority or housing association homes to a state of homelessness – with the dubious and limited rights of those “not intentionally homeless” (see below)?
The answer can only be no. Steve Webb’s statement to the Commons – and even Zahawi’s confident assertion on Newsnight – would have no effect on the law. As Shapps notes, there is primary legislation on this. The law cannot be manipulated by comments in passing on the floor of the House by Ministers, be they never so high (and Webb is not particularly high). His pledge is worthless.
The relevant section of the Housing Act 1996 is appended below. The basic point is that someone is intentionally homeless if s/he “deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy”. That can include being evicted for arrears, and, as Shapps says, it is a local authority decision.
There is no sub-section saying: “A person rendered homeless as a result of a misguided and foolish government policy whose effect is to push him or her into arrears and hence to be evicted shall not be deemed intentionally homeless.”
A local authority has to judge each case on its merits, and it is really beyond credibility that there is any simple test of whether someone went into arrears because of the under-occupation charge or because of “decisions that they have taken which mean they are not best able to manage their finances” – in Michael Gove’s words.
There is no legislation saying everyone subject to the under-occupation charge will be deemed unintentionally homeless on eviction – so there is no such protection. Zahawi is wrong.
What is the benefit of being “not intentionally homeless”?
But even if council’s extend the blessed status of “not intentionally homeless” to bedroom tax victims, what value is it anyway? The best that can be said is that if you are deemed statutorily vulnerable (disabled or with children for example) the council will have a duty to house you – having perhaps just evicted you. You’ll go into bed and breakfast, which is very likely to be overcrowded rather than superbly appointed to match your family’s needs; and you’ll go on a waiting list for one of the more suitable small council flats (or private flat) that this process implies must be available out there somewhere; or the chance of a housing association flat – perhaps one of those that, thanks to government policies Zahawi assures us, entrepreneurial housing associations and private builders are rushing to construct to match the demanding specifications of small impecunious families.
None of this will save money for the local authority since housing benefit will be payable and it is likely to cost more than just leaving you in your former oversized home. Steve Webb actually acknowledged as much (see above).
But if you are not “vulnerable” – an impoverished 55-year-old widow, for example, whose children have flown the nest? You’re on your own, however unintentional your homelessness is or however poor you are. There’s no obligation for the local authority to house you – and so it certainly won’t house you. You have lost your home so you must find a new one. Housing benefit will be payable once you find it but the accommodation is likely to be more expensive – hence more costly to the council taxpayer.
Is the purpose of the bedroom tax unlawful?
Zawahi, as the Newsnight quote above shows, found it very difficult to spell out the Government’s position that it is not intending to drive people from their homes. The best he could manage was: “It is not about us making life difficult for people.”
This is important – and was presumably not thought through by the Government in coming up with their under-occupation policy. The council tenants and social housing tenants we are talking about are on secure tenancies. They can’t be removed or transferred at will into a smaller flat, but they can be evicted for arrears. When the Daily Mail reported on the bedroom tax in 2010 just before its announcement it looked as if it had been briefed that “Council house tenants living in properties that are bigger than they need are to be forced to move into smaller accommodation” (Emphasis added).
Could this spin be the result of a fevered Mail reporter’s imagination? It would be nice to get him in the witness stand to explain, presumably, that he was thoroughly and candidly briefed by sources close to the Department for Work and Pensions.
An intention to force tenants out by economic means would, on the face of it, be unlawful. There would be an arguable case to say that it conflicts with Article 8 of the European Convention on Human Rights: “Everyone has the right to respect for his private and family life, his home and his correspondence.” One’s “home” includes a council flat or housing association let, in particular on a secure tenancy. Driving people into arrears, leading to evictions, fully knowing that that is the likely result of the policy would seem to conflict with this basic principle – particularly as even the “unintentionally homeless” would be left largely devoid of rights to regain the security of a home.
This would be true for the non-vulnerable, made homeless pure and simple, and the vulnerable, placed in bed and breakfast with the uncertain hope of a flat some time in the future. Family life, in Article 8 terms, would have been severely compromised – or wrecked – by such an outcome.
Housing associations are desperate to get out of the hole the Government has dug for them, hence David Orr’s strong statement on arrears. Although HAs are being forced to look at mandatory eviction procedures (as explained here), none of them wants to be the first to evict the first bedroom tax martyr – even if they could find a “Jeffries for a judge” to wave it through.
It is clear that this is a policy in shreds. It is morally, legally and economically flawed – which is why, presumably, it was left to a useful bruiser like Nadhim Zahawi to support it on Newsnight.
He should have opted for a night relaxing in front of the television instead of being nervy in front of the cameras – defending the indefensible.
This Govan case ruled the bedroom tax did not comply with ECHR requirements, viz Article 14 on discrimination: govanlc.com/CaseF.pdf
Other bedroom tax posts:
This post on Speye has an interesting take on Steve Webb’s statement: Don’t pay the bedroom tax – is coalition policy!
Resumé of Fife cases: Inside Housing
Westminster council case here
The definition of intentional homelessness is set out in the Housing Act 1996 at section 191:
(1) A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.
(2) For the purposes of subsection (1) an act or omission in good faith on the part of a person who was unaware of any relevant fact shall not be treated as deliberate.
(3) A person shall be treated as becoming homeless intentionally if—
(a) he enters into an arrangement under which he is required to cease to occupy accommodation which it would have been reasonable for him to continue to occupy, and
(b) the purpose of the arrangement is to enable him to become entitled to assistance under this Part, and there is no other good reason why he is homeless.