The legal details underlying this discovery are rather obscure. I've tried to summarise them at the bottom of this post as an appendix, in case you're interested. But, in a nutshell, they are as follows:
If a claimant has been living in the same rented property since before 1st January 1996 and has been getting Housing Benefit continuously between then and now, the restrictions on rent that we all call the bedroom tax don't apply to them.
Why has this come up now?
As I said above, the details are rather obscure, so no-one noticed this issue until recently. Housing Benefit rules as they are now are defined mainly by regulations that came into force in 2006, but which have been fiddled about with quite a lot since then. Every time some new initiative is incorporated, like the Bedroom Tax, they are amended again, and they are now pretty messy. In this case, the government appears to have forgotten to take account of a rule that protects some claimants and which effectively trumps the rules underlying the Bedroom Tax. If they'd been more careful they would have written another rule that dealt with this, but they didn't.
As I understand it, a keen-eyed tribunal judge who has been hearing Housing Benefit appeals noticed this, and has been asking the local authority to state in each case whether the claimant has been continually in receipt of benefit since before 1st January 1996. The local authority has, in turn, passed this information onto other people.
Who does this affect?
Anyone who has been living at the same rented property since before 1st January 1996, and has been getting Housing Benefit continually since then. As I read the rules, they still qualify if:
- there has been a break in their claim of less than 4 weeks, but they have still been in the same property;
- there was a break because the claimant was 'on the sick' but then tried out work under the 'welfare to work' programme, and then went back on the sick and reclaimed benefits within 52 weeks.
It also looks to me that there is protection for people who first claimed benefit at the property after 1st January 1996 but that that this was because their partner had previously been the one claiming but has since left, died, or been imprisoned, provided that they claim within four weeks of their partner leaving, dying, or going to prison.
If a claimant has changed address they will not be able to use this loophole, unless they had to move out temporarily because 'fire, flood, explosion or natural catastrophe' rendered the property uninhabitable.
What should you do if you think this applies to you, or someone you know?
You should immediately contact your local authority and ask them in writing to look again at their decision to restrict the rent.
The legal basis for this is that a decision can be revised at any time if there has been an official error (unless an Upper Tribunal or higher court has ruled on the matter, which it hasn't in this case).
If the local authority refuses to change its decision you should appeal. But be careful: make sure you appeal before 13 months have passed since the original decision was made restricting your rent. In general there is a one month time limit to appealing, but this can be extended by a further 12 months in exceptional circumstances (in some cases the time limit only starts when they've refused to revise your decision, but let's play safe).
When you contact the local authority, and/or when you appeal, make sure you say why you think you fit these circumstances.
If your request for revision (or your appeal) is successful, your Housing Benefit will be increased to remove the reduction caused by the Bedroom Tax, and arrears paid to make up the shortfall between when it started and now.
Will the government 'fix' the error?
Undoubtedly. But its very unlikely they will be able to apply any correction retrospectively. Claimants can be reasonably confident about having the reduction removed until the date if/when the legislation is corrected.
What do I think about all this?
Obviously I'm pleased. Particularly as this is likely to help people who have been settled on their streets and in their communities for decades, who have seen their children leave home, and have been struggling for years on benefits.
But let's not kid ourselves. The Bedroom Tax is still there. For anyone who moved, or claimed benefit, after 1st January 1996, nothing has changed. And even those who may benefit now are likely to lose this advantage when the government corrects its mistake.
People who the law defines as having the bare minimum to live on will still be expected to spend on rent the money they should be spending on food, clothes, and other essentials. Parents separated from their children will still not be able to keep a bedroom available for when the kids come to visit, unless they pay for it. And social sector landlords will keep having to square an unsquareable circle, being forced to evict tenants from properties that then frequently stand empty because there's no-one who fit the criteria to live in them.
Appendix - the legal argument
The Bedroom Tax affects how much Housing Benefit should be paid by changing what the 'eligible rent' is for any particular claimant. The eligible rent is, in effect, what the authorities think the rent is, whatever it actually is. So even if a claimant is entitled to full Housing Benefit, they don't get paid for the difference between their actual rent and their eligible rent.
The eligible rent in any particular circumstances is defined by the Housing Benefit Regulations 2006 (2006/213) as amended. The changes that appear in the most recent amendment incorporate changes needed to implement the Bedroom Tax. If you want to follow the argument yourself, you can find the up to date version at http://www.dwp.gov.uk/docs/a8-2501.pdf.
Originally the eligible rent was defined by Regulation 2 of these regulations, which originally then directed the reader to Regulation 12 for further details. Over the years changes were made to restrict eligible rent in different circumstances, and so extra versions of Regulations 12 (12B, 12BA, 12C, and 12D) were added to incorporate these changes.
Here's the complicated bit. When the Housing Benefit Regulations were originally brought in, in 2006, another set of Regulations also came into force: the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 (SI 2006/207)(http://www.dwp.gov.uk/docs/a8-3301.pdf). These revoked old regulations that were no longer necessary, and - this is the important bit - gave transitional protection to some claimants, so that they would not be affected in the same way as most people by the new changes. Paragraphs 4 and 5 of Schedule* 3 of these regulations says, amongst other things, that for people who have been living in the same rented property since before 1st January 1996 and have been getting Housing Benefit continuously between then and now their eligible rent is, basically, their rent.
The current version of Regulation 2 of the Housing Benefit makes it (fairly) clear that if Paragraphs 4 and 5 of the above schedule apply to a person, their Housing Benefit is determined by Regulation 12: not 12B, 12BA, or any of the other amended versions).
Now, here's the thing. The government could have written a provision into the newest version of the Housing Benefit regulations something that said that Schedule 3 of the Consequential Provisions didn't apply, but it didn't. Paragraph 4(2) of Schedule 3 took this protection away from tenants of private landlords, but no corresponding paragraph was put in for tenants of registered social landlords (the ones affected by the bedroom tax).
*In legislation, a schedule is normally an appendix consisting of a list or table of circumstances covered by the main body of the relevant regulations.