What's the Use of a Hashtag? A Case Study

Published date01 September 2016
Date01 September 2016
DOIhttp://doi.org/10.1111/j.1467-6478.2016.00761.x
JOURNAL OF LAW AND SOCIETY
VOLUME 43, NUMBER 3, SEPTEMBER 2016
ISSN: 0263-323X, pp. 416±43
What's the Use of a Hashtag? A Case Study
Helen Carr* and Dave Cowan**
Although there are now sophisticated techniques for the analysis of
social media, socio-legal studies has yet to draw on them fully. In this
article, we demonstrate how Twitter can produce insights about pro-
test, law, and legality, through a case study of protests against the
`bedroom tax'. The first involved challenging a policy in the courts
using a test case or cases. We discuss the litigation strategies and the
mess they created and counterpose those strategies with those of four
prolific `tweeps' who participated in our study. We argue that, despite
the small number of participants, these people have, in their own way,
been enormously influential and made things happen. Our position is
not evaluative of the different strategies ± but, rather, one that
recognizes that legality is mobilized in different ways.
Empirical researchers now have an enormous variety of methods and texts
for their study. However, the core argument in this article is that social media
offers a set of textual resources, which have been largely neglected by socio-
legal scholars but which have significant purchase in thinking about the
translations of legality in everyday life. If we socio-legal scholars claim to be
interested in the mundane, the everyday, and in the different mechanisms
through which protest is voiced and power comes to be exercised horizon-
tally, then our argument is that we must take social media seriously. To put it
another way, the simple hashtag can become a powerful tool in the sense that
it helps get things moving, often operating at the interstices between a tactic
and a strategy.
1
That is, perhaps nothing is intended by a `post' of a
416
*Kent Law School, University of Kent, Canterbury CT2 7NS, England
H.P.Carr@kent.ac.uk
** University of Bristol Law School, Wills Memorial Building, Queen's
Road, Bristol BS8 1RJ, England
d.s.cowan@bristol.ac.uk
The authors are particularly grateful to the Journal's reviewers, Simon Halliday, Paddy
Ireland, and Antonia Layard for their comments on an earlier version, and the participants
at the SLSA Conference 2014, where this article was first presented.
1 In Michel de Certeau's terms: The Practice of Everyday Life (1980) 36±7.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
`microblog' but it reaches a potentially huge and diverse audience who
might themselves make things move.
2
In this sense, hand-held so-called
smart telephones enable social media to become a powerful intermediary
among other tools.
3
To exemplify this argument, we use a case study of the bedroom tax,
4
which we discuss in the first section. We look at two different ways in which
protest against the bedroom tax has been mobilized in the following two
sections. The first method is the now traditional method of challenging a
policy in the courts using a test case or cases.
5
We discuss the litigation
strategies and mess that they created. The second method is through social
media. Our social media of choice for this study is Twitter.
6
But, as we make
clear, ours is a study of legality. Social media offers not only a seemingly
passive data set, but it also has significant purchase in thinking about the
translations of legality in everyday life. It may also provide textual resources
to resist a narrative which `reinforces the image of there being a clear-cut
divide between two sets of values ± those of private, individualistic self-
interest on the one hand, and those of public, collective interests on the
other'.
7
While some use the words `law' and `legality' interchangeably, or as
explanations of each other,
8
we adopt the distinction drawn by Ewick and
417
2 If we are serious about `reassembling the social', then, like Latour and others, we
should be using and taking social media seriously:
mixed_media>.
3 So that `when you hook up with this circulating entity, you are partially provided
with consciousness, subjectivity, actoriality etc': B. Latour, `On recalling ANT' in
Actor Network Theory and After, eds. J. Law and J. Hassard (1999) 18.
4 We discuss the label `bedroom tax' below ± our choice of this phrase to describe the
rule is both political and because, as a result of the phenomenon we are seeking to
explain in this article, namely, social media, it has become instantly recognizable.
5 H. Hodge, `A test case strategy' in Welfare Law and Policy, eds. M. Partington and
J. Jowell (1979); T. Prosser, Test Cases for the Poor: Legal Techniques in the
Politics of Social Welfare (1983); C. Harlow and R. Rawlings, Pressure through
Law (1992). We retain the scepticism that, when lawyers become involved, they
tend to:
. .. set about defining the `public interest' ± and then think of the best way they
can `satisfy' it. In other words, the limits of the so-called `public interest' come
to correspond mysteriously with the ability of the profession to `serve' this
`interest'.
Z. Bankowski and G. Mungham, Images of Law (1976) 53.
6 We could just as easily have chosen Facebook, through which much of the popular
protest was (and continues to be) organized. However, the fast-moving, short-form
of Twitter provides a principal method of public popular protest against the bedroom
tax as we discuss below.
7 C. Barnett, `Publics and markets: What's wrong with neoliberalism?' in The Sage
Handbook of Social Geographies, eds. S. Smith et al. (2010) 271.
8 P. Bourdieu, `The Force of Law: Toward a Sociology of the Juridical Field' (1987)
38 Hastings Law J. 813, where the distinction is drawn between law and the juridical
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Silbey. On the one hand, we have formal law, which has its coupling with legal
institutions; on the other hand, we have legality (or, rather, legalities), which:
. . . refer to the meanings, sources of authority, and cultural practices that are
commonly recognised as legal, regardless of who employs them or for what
ends. In this rendering, people may invoke and enact legality in ways neither
approved nor acknowledged by the law.
9
We take this extension because the expanded version of legality allows what
is screened out by the law to become visible; the law bottlenecks facts
through its narrow head; but, when we start to think about legality (or
legalities), other possibilities and strategies of resistance become possible.
There are now sophisticated qualitative and quantitative methods avail-
able to us for analysing tweets.
10
However, we draw on a set of four
qualitative interviews conducted with the people behind the tweets, in which
we asked about their purposes and programmes for action. This method
mirrors that used by Gerbaudo in a study of the use of social media in the
2011 Egyptian revolution, the indignados movement in Spain, and Occupy
Wall Street.
11
Gerbaudo's purpose was to provide a counter to the
`unbounded techno-optimism of [some] social media theorists', on the one
hand, as well as the techno-pessimism of other commentators, through
interviews with activists and observations of public gatherings. We discuss
this literature around the use of social media for protest activity, developed
in anthropological and communications studies, in the third substantive
section of this article, before drilling down to our specific case study and
noting its distinctiveness.
Our data offer a small sample, but it is a sample of the most prolific and
political tweeters who were tweeting at that time (summer 2013) either
418
field; L. Fox O'Mahony, `Property outsiders and the hidden politics of doctrinalism'
(2014) 62 Current Legal Problems 409; B. Latour, An Inquiry into Modes of
Existence: An Anthropology of the Moderns (2013) 359.
9 P. Ewick and S. Silbey, The Common Place of Law: Stories from Everyday Life
(1998) 22. This extended version of legality should be distinguished from the elision
sought by Alan Hunt in his revision of his Foucault and the expulsion of law thesis:
A. Hunt, `Encounters with juridical assemblages: Reflections on Foucault, law, and
the juridical, in Re-reading Foucault: On Law, Power and Rights. ed. B. Golder
(2012). Hunt argues that the ```legal'' is characterized by its primary orientation to
the making of, the content of, the interpretation and application of, and, in general,
the priority accorded to, substantive rules' (p. 78).
10 For discussion, see S. Jeffares, Interpreting Hashtag Politics: Policy Ideas in an Era
of Social Media (2014) ch. 4; A. Wilkie, M. Michael, and M. Plummer-Fernandez,
`Speculative method and twitter: Bots, energy and three conceptual characters'
(2014) 63 Sociological Rev. 79; E. Yardley and D. Wilson, `Making sense of
``Facebook murder''? Social networking sites and contemporary homicide' (2015)
54 Howard J. of Crim. Justice 109; T. Palmer, `Talking the (slut)talk, walking the
(slut)walk: Negotiating a global movement in a local context' (2014), unpublished
paper on file with the author.
11 P. Gerbaudo, Tweets and the Streets: Social Media and Contemporary Activism
(2012).
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solely or partly about the bedroom tax. Our point about this sample, though,
is that despite its size, each of these people has in their own way been
influential, as we discuss in the third section. If power is a mode through
which an actor ± a thing ± gets another actor ± another thing ± to act or omit
to act, then these actors (the combination of human and social media) are
potentially getting others to act.
12
It is not our intention to offer an evaluation
or comparison of these methods of mobilization. Our suggestion is that we
are able to draw attention to a series of narratives documenting how social
media may occupy a lacuna created by the apparent impossibility or
implausibility of formal legal challenge to the reasonableness of central
government policy that has been the subject of parliamentary debate. Those
narratives suggest that social media proved capable of supporting and
perhaps even supplanting this court-based endeavour.
THE BEDROOM TAX
The bedroom tax forms part of a suite of social security reductions brought
into effect during the Coalition government's austerity turn.
13
It is a bright-
line rule which prescribes a percentage reduction in housing benefit for the
under-occupation of a property in the social sector.
14
If a property is under-
occupied by one bedroom, housing benefit is reduced by 14 per cent; if it is
under-occupied by two or more bedrooms, then housing benefit is reduced
by 25 per cent. The regulations do not define bedroom,
15
although they do
define who is entitled to a bedroom.
16
The regulations mirror those affecting
419
12 See, for example, M. Foucault, `Afterword: The subject and Power' in H. Dreyfuss
and P. Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics (1983);
B. Latour, Reassembling the Social (1996); E. Cloatre, Pills for the Poorest (2013).
13 Others included the benefit cap, cuts to council tax allowance, and rises by CPI as
opposed to RPI: see, further, K. Gibb, `The multiple policy failures of the UK
bedroom tax' ( 2015) 15 Internat ional J. of Housin g Policy (doi:10.1080/
14616718.2014.992681). For a critique, see Social Policy in an Age of Austerity,
Special Issue (2012) 32 Critical Social Policy.
14 It is contained in the Housing Benefit (Amendment) Regulations 2012, S.I. 2012/
3040 Reg. 5, which inserted two new regulations into the Housing Benefit
Regulations 2006 ± Regs. A13 and B13.
15
This came later in a Department for Work and Pensions (DWP) Circular HB/U6 2013,
which suggested that `. . . the only consideration should be the composition of the
household and the number of bedrooms as designated by the landlord, but not by
measuring rooms' (para. 4). Provided a room was large enough to accommodate a
single bed, it was to be regarded as a bedroom (para. 5); see, also, Circular HB/U6
2014, and the critique, at: .
16 Reg B13(5). This was amended to include limited provision for foster carers (but not
prospective adopter parents), members of the armed forces on operations, and a
child who could not share a bedroom for medical reasons: Housing Benefit
(Amendment) Regulations 2013 S.I. 2013/665; Housing Benefit and Universal
Credit (Size Criteria) (Miscellaneous Amendments) Regulations, S.I. 2013/2828.
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the private rented sector,
17
with one significant difference: their immediate
effect.
18
Whereas the private rented regulations only came into effect on a
new claim to housing benefit, the social sector regulations came into effect
immediately (although there was a period between their announcement and
their coming into effect).
19
That was (and is) the formal law ± the bright-line rule inscribed by
statutory instrument ± but it was encrusted with justifications which,
superficially, appeared plausible. Appeals to fairness provide the basis for
the Department for Work and Pensions (DWP)s' cultural schema about the
bedroom tax. A simplistic binary (fair/unfair) provided the vehicle through
which the policy was conveyed to the public.
Two rationales were provided for the policy.
20
First, too many households
were under-occupying social housing so that best use was not being made of
the stock. The purpose then was to provide a financial incentive to move ±
although, that `incentive' was effective coercion because of the inevitable
rent arrears (and probably undefendable possession proceedings) that would
follow from the reduction. As Gibb notes, this rationale `stretches credibility
compared with the simple sense that it is about cutting [housing benefit]'
because:
. . . it is a remarkably poorly targeted under-occupation policy and that
critically behavioural assumption that people will down-size . .. are not borne
out. Indeed smaller properties in the market sector may induce higher [housing
benefit] costs than larger social rented properties.
21
Secondly, it was said to be unfair that people in the private rented sector
were unable to under-occupy, whereas people in the social sector could do so
(although nothing was said about owner-occupiers who under-occupy). This
provides a superficially compelling example of the current politics of
austerity which, as Clarke and Newman describe, `combines an economic
logic with a particular moral appeal (to shared sacrifice and suffering, to
fairness and freedom, to a sense of collective obligation).'
22
This rationale
420
18 There was, however, one (further) element of farce to these regulations. It became
apparent that those households who had been in consistent receipt of housing benefit
from 1996 or earlier were not affected by the bedroom tax. When this became
known to the DWP, they closed down this `loophole. The full story can be found at
g/2014/01/bedroom-tax-pre-1996-claims -exemption/>;
/nearly legal.c o.uk/blo g/2014/ 01/bedro om-tax- the-eff ect-of-t he-pre- 1996-
claim-exemption/>.
19 The policy was announced in June 2010 and came into force in April 2013.
20 These were provided in interviews to the media, for example, on 1 April 2013, when
the bedroom tax came into force: BBC News, `Iain Duncan Smith: Reforms ``make
work pay''', at .
21 Gibb, op. cit., n. 14, p. 14.
22 J. Clarke and J. Newman, `The alchemy of austerity' (2012) 32 Critical Social
Policy 299, at 309.
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suggests something that private landlords have been arguing for some time ±
a level playing field between social and private renting. Indeed, the policy
could plausibly be presented as a coerced exit, a type of quasi-privatization,
in the sense that households, faced with unaffordable social housing and
nowhere to move to within that sector, would see the private rented sector as
the only alternative.
23
In any event, perhaps the real motivating factor was the need to find
savings in the huge housing benefit black hole. When the Coalition came
to power, the housing benefit bill was around £21 billion. There was
limited slack left to reduce the bill in the private rented sector ± a
consequence of the policy shift to market rent from 1989 ± and, in any
event, it was well-known that occupiers with some degree of reliance on
housing benefit are discriminated against by private landlords. The social
sector was a target, in particular because a high proportion of occupiers
were reliant on housing benefit.
24
Further, the Coalition, in a quite
remarkable volte-face, were making sweeping changes to what they
referred to as `lifetime tenancies', in part to secure mobility within the
social sector and between social and private sectors.
25
Against the £21
billion housing benefit bill, the bedroom tax was thought originally to save
around £480 million, and around £930 million over two financial years.
26
Professor Becky Tunstall obtained the DWP's modelling through a
freedom of information request (although the modelling contained no
formulae) and found that, using real data provided by four large housing
associations, the projected savings were unlikely to be achieved.
27
Further,
421
23 The data from the DWP's study suggests that, where statistics were available, only a
small proportion of affected households did move to the private rented sector (DWP,
Evaluation of Removal of the Spare Room Subsidy (2015) 53) ± but our point is that
it provided a push-factor, not that it succeeded in so pushing.
24 The impact assessment assumed a figure of around 63 per cent, taken from the
English Housing Survey.
25 Department for Communities and Local Government (DCLG), Local Decisions: A
Fairer Future for Social Housing (2010); Localism Act 2011; for a critique, see H.
Carr, D. Cowan, and C. Hunter, Tenure Rights and Responsibilities (2010), at
.
26 DWP, Housing Benefit: Size Criteria for People Renting in the Social Sector (2012);
compare S. Wilcox and J. Perry, UK Housing Review 2014 (2014), where the saving
is reduced to £330 million. Duncan-Smith, however, suggested that the bedroom tax
had saved £1 billion: R. Prince, `Iain Duncan Smith: government's controversial
bedroom tax has saved taxpayers £1 billion' Daily Telegraph, 21 March 2105. The
official statistics can be found at v.uk/government/statistics /
number -of-hou sing-be nefit-c laimant s-and-a verage- weekly- spare-r oom-subs idy-
amount-withdrawal>.
27 This was because the DWP modelling was based on underestimates of tenant
activity in response to the bedroom tax: B. Tunstall, Testing DWP's Assessment of
the Impact of the Social Rented Sector Size Criterion on Housing Benefit Costs and
other Factors (2013).
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there was some evidence that the policy acted to shunt costs from the DWP
to local authorities and other housing providers.
28
The iniquity in the policy reflected the fact that it affected households
which were allocated a long-term social tenancy of a social property from
which they would have to move on the basis that they now could not afford
it. Many allocation schemes had previously actively encouraged under-
occupation so that households could grow into a property, particularly in
hard-to-let areas.
29
The balance of housing supply in many areas affected,
however, meant that they were unable to move (even if they had wanted to
do so).
30
Secondly, the impact assessment originally suggested that 660,000
households would be affected (about 31 per cent of all working-age housing-
benefit claimants living in social housing).
31
Of that total figure, it was
estimated that 420,000 had some form of a disability, so that the policy
clearly targeted such households.
What became apparent quickly was that the notion of a `spare' bedroom
for a considerable proportion of such households was a complete nonsense ±
such rooms were being used to store vital equipment, or where partners were
unable to sleep together, or the room was simply too small. Thirdly, it was
always accepted that the policy would have regional effects ± the highest
affected households lived in Welsh social housing (46 per cent) and the
lowest in south-west England social housing (20 per cent) ± and those effects
would be sensitive to supply:demand of social housing, so that rural areas
would be particularly affected.
32
Fourthly, it was said that those affected,
including households with a disabled person, would be entitled to make a
claim for a discretionary housing payment,
33
but these payments were (at
least at one time) thought to be short-term and, in any event, were discre-
tionary and payable from a locally administered capped fund (so, once the
fund was exhausted, there could be no more payments).
34
The government
422
28 House of Commons Work and Pensions Committee, Fourth Report, Support for
Housing Costs in the Reformed Welfare System HC (2013±4) 720, paras. 84±88.
29 See, for example, the discussion in A. Marsh et al., Piloting Choice-Based Lettings:
An Evaluation (2003).
30 For example, it was suggested that it would take between three and ten years for
under-occupying households to downsize: K. Gibb, The Bedroom Tax in Scotland
(2013).
31 DWP, op. cit., n. 26, para. 22. The figure was subsequently downsized itself to
547,342 and then 522,342. It has been noted that the problem with this impact
assessment was that `. . . analysis is unavoidably static and cannot take account of
wider economic change. Further, available analysis tends to focus on the big picture
± rarely does it consider variety in local housing market contexts': K. Gibb et al.,
The Impact of the Housing Benefit Reforms on the Social rented Sector: A Study for
the Northern Ireland Housing Executive (2013).
32 DWP, id., para. 34.
33 Discretionary Financial Assistance Regulations 2001/1167; DWP, Discretionary
Housing Payments Manual, April 2013 (2013).
34 These problems with the discretionary housing payments system were what
persuaded the Court of Appeal, in part, to hold that the private rented regulations
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allocated an increasing amount of money to such payments (£165 million in
2014±5),
35
and some local authorities added to it from their housing revenue
accounts,
36
although it is now reducing.
When the government finally published the interim report of the evalua-
tion of the policy, it was not surprising that just 4.5 per cent of affected
households had downsized within the social sector and 1.5 per cent had
moved to the private rented sector; 59 per cent of affected households were
in rent arrears and there was widespread concern that households were being
forced to make cuts to household essentials (food, heating, and so on) and
incurring other debts to pay the rent. Because the bedroom eligibility related
to children's ages, some households were simply waiting for their child to
reach the next age up.
37
The final report,
38
slipped out just before the
seasonal holiday at the end of 2015 along with a number of other announce-
ments and reports prejudicial to the government's various positions,
39
generally confirmed these interim findings, adding that many affected
households were cutting back on household essentials (food, clothing, and
energy/utilit y bills) and non-essent ials; and, further, th e quantitative
evidence of those affected suggested that up to 80 per cent ran out of
money before the end of the week/month.
40
In an epilogue to the reprinted edition of their book, The Blunders of our
Governments, King and Crewe suggest that the bedroom tax was a blunder,
as they define it: `On the face of it, it would seem to be a straightforward
case of cultural disconnect, with ministers and officials having little or no
idea what practical effects their measure would have on those affected by
it.'
41
For Gibb, there are multiple policy failures. What binds the two
analyses together is a realization that the projected savings to housing benefit
were unlikely to materialize.
42
These sober analyses, however, do not reflect the degree of hardship
suffered by households as a result of the bedroom tax. Suicide attempts in
housing and job-centre offices were reported.
43
Social landlords' business
423
were unlawful: Burnip v. Birmingham CC, Trengove v. Walsall MBC, and Gorry v.
Wiltshire CC [2012] EWCA Civ 629, [45]±[47].
35 Housing Benefit Circulars S1/2013 and S1/2014.
36 W. Wilson, `Housing Benefit: Discretionary Housing Payments' HC Library SN/
SP6899 (2015) 3.
37 CCHPR, Evaluation of Removal of the Spare Room Subsidy: Interim Report (2014).
38 DWP, op. cit., n. 23.
39 A. Sparrow, `Taking out the trash: How spin doctors wrangle the news' Guardian,
17 December 2015, at
out-the-trash-how-spin-doctors-wrangle-the-news>.
40 Leading Baroness Lister to respond to Lord Freud that `I think we read different
reports' in the House of Lords debate on the final report.
41 A. King and I. Crewe, The Blunders of our Governments (2014) 427.
42 See nn. 21 and 37, above.
43 L. Clark, `Horror at ``bedroom tax'' suicide bid' Courier.co.uk, 30 August 2013, at
ww.thecour ier.co.uk/ news/local /fife/horr or-at-bedr oom-tax-su icide-bid-
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planning was affected. Indeed, some social landlords sought to use the
inherent flexibility in the regulation around the definition of `bedroom' by
redefining the number of bedrooms in their properties so as to assist their
occupiers.
44
There was an episode in which the UN's official rapporteur on
adequate housing, Raquel Rolnick, recommended that the bedroom tax be
suspended immediately and fully re-evaluated. Her report contained the
following comment about the bedroom tax:
In only a few months of its implementation the serious impacts on very
vulnerable people have already been felt and the fear of future impacts are a
source of great stress and anxiety.
Of the many testimonies I have heard, let me say that I have been deeply
touched by persons with physical and mental disabilities who have felt
targeted instead of protected; of the grandmothers who are carers of their
children and grandchildren but are now feeling they are forced to move away
from their life-long homes due to a spare bedroom or to run the risk of facing
arrears; of the single parents who will not have space for their children when
they come to visit; of the many people who are increasingly having to choose
between food and paying the penalty. Those who are impacted by this policy
were not necessarily the most vulnerable a few months ago, but they were on
the margins, facing fragility and housing stress, with little extra income to
respond to this situation and already barely coping with their expenses.
45
The Tories, of course, pilloried her (and it is significant that Rolnick is a
`her': `a woman from Brazil', as Grant Shapps, then Conservative Party
Chairman, described her,
46
complaining of her bias and calling her report an
`absolute disgrace' in a letter to the UN
47
); and the Tory press added the
424
1.125447>; O. Clay, `Man cuts throat with knife in bedroom tax protest' Liverpool
Echo, 26 July 2013, at
cuts-throat-knife-runcorn-5327123>; K. Mudie and N. Nelson, `Bedroom tax victim
commits suicide: Grandmother Stephanie Bottrill blames government in tragic note'
Daily Mirror, 12 May 2013, at
bedroom-tax-victim-stephanie-1883600#.UY88S_pPnNM.twitter>.
44 Lord Freud, the welfare minister, however, caused the death-knell of this attempt to
circumvent the policy in a letter to social landlords. He wrote: `. .. we would expect
the designation of a property to be consistent for both Housing Benefit and rent
purposes. Blanket redesignations without a clear and justifiable reason, and without
reductions in rent, are inappropriate and do not fall within the spirit of the policy'.
Further: `Where it is found that a local authority has re-designated properties
without reasonable grounds and without reducing rents, my Department would
consider either restricting or not paying their Housing Benefit subsidy'.
45
UN Special Rapporteur on adequate housing, `Press Statement' (11 September 2013),
at ://www. ohchr. org/EN/ NewsEve nts/Pa ges/Dis playNew s.aspx ?NewsID =
13706&LangID=E>.
46 S. Hilditch, `A Woman from Brazil', at
09/11/a-woman-from-brazil/>.
47 BBC News, 11 Se ptembe r 2013, at http:/ /m.bbc .co.uk /news /uk-po litics -
24046094>.
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epithet `loony' and `loopy', even stooping to describe her as a `dabbler in
witchcraft who offered an animal sacrifice to Marx'.
48
LEGAL CHALLENGE
There are two elements to this section. The first relates to the judicial
reviews of the bedroom tax. The second relates to the `jurisprudence' as it
developed in the first-tier tribunal. Here, the oddest things occurred and
outcomes varied widely. Here, until recently, we entered into the land of
Brobdingnag.
49
What binds these together in our analysis, though, is that ±
whether they like it or not ± they are bound by the law. Whether they be
those of cause lawyers, politically active or otherwise, judges or advocates,
the arguments discussed in this section are forced into the law bottleneck;
they cannot be outside the law. They may see themselves as being up against
the law but the law engulfs them and, win or lose, triumphs (to adapt the
well-known expression `I fought the law and the law won').
50
1. Judicial reviews
51
As regards these challenges, which have hitherto been largely unsuccessful,
our argument (which is hardly novel to socio-legal scholars) is that judicial
review has the effect of bottlenecking the stories of the applicants and
making them irrelevant.
52
Thus, in the leading case on the social sector
bedroom tax, MA v. Secretary of State for Work and Pensions, the facts of
the 10 cases are relegated to an Appendix to the judgment, which is much
more concerned with the policy process on which there is a splurge of
information.
53
In all but one case, the claimants contended that they needed
an extra bedroom because another member of the household (child, adult
425
48 See ttp://www.cha nnel4.com/news /bedroom-tax- un-grant-shapp s-brazil-row> ;
://ww w.dai lymai l.co. uk/ne ws/art icle- 24182 04/Ra quel- Rolni k-A-da bbler -
witchcraft-offered-animal-sacrifice-Marx.html>.
49 That is, an enormous space but the maps to get there are contradictory.
50 Bourdieu, op. cit., n. 8; Bankowski and Mungham, op. cit., n. 5.
51 These cases have largely been dealt with in an excellent way by Neville Harris in his
excellent `Welfare reform and the shifting threshold of support for disabled people'
(2014) 77 Modern Law Rev. 888, at 920±5. This section is designed simply to add
further observations.
52 In a related context, Lord Neuberger said, `. . . save in the most exceptional
circumstances, it would be wrong in principle to have any regard to the housing
circumstances and requirements of an individual applicant when considering the
validity of a housing allocation scheme under Part 6 of the 1996 Act: R (Ahmad) v.
Newham LBC [2009] UKHL 14, para. 60.
53 R (MA and others) v. Secretary of State for Work and Pensions and others [2014]
EWCA Civ 13; compare Burnip v. Birmingham CC,Trengove v. Walsall MBC, and
Gorry v. Wiltshire CC [2012] EWCA Civ 629.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
child or partner) was disabled. In the other case, the claimant suffered from
obsessive compulsive disorder; he had filled two rooms with papers and
contended that he could not move to smaller accommodation. The only time
these facts get prayed in aid of the judgment is to demonstrate that the
regulations plainly discriminate against the claimants under Article 14,
Schedule 1, Human Rights Act 1998.
54
But that is a throwaway point
because it is so clear (despite the Secretary of State's argument to the
contrary).
Similarly, in the case of whether a claimant occupying a three-bedroom
property, one bedroom of which was a sanctuary because of domestic
violence, it was put as follows:
As I have observed, the Sanctuary Scheme is obviously a good thing, both in
the case of A and in the case of others who have endured domestic violence.
The evidence I have about this applicant suggests that she is a deserving
recipient of the benefits that scheme can bring, and common sense suggests
that it would be best for everyone if she were able to stay in her current
property. It has been her home for 25 years, and has been adapted to provide
her with the security she deserves. There are also the points which can be
made about the uncertainty of future funding and the effect of that on someone
in the position of A. I do not underestimate that matter. As I say, it seems to
me that the benefits of a Sanctuary Scheme go well beyond the physical
security offered by adapting a property. For A it has brought the security of
knowing that she can stay where she is, with her support network around her.
The loss of that certainty is not a good thing.
But whilst these factors and the human effect of all this on A and those like
her weighs in the balance, the question I have to determine is not simply
whether it would be a good idea to put A's home in jeopardy. It is whether the
Defendant's decision to adopt this policy (or to implement it in this way) is
manifestly without reasonable foundation.
55
Our supplementary argument is that government is a learning organization. It
learnt from its unsuccessful defence to the private rented sector regulations,
and, with these cases, it provided the court with a welter of information
about the policy process. We learn, for example, how the government con-
sidered making an exception for disabl ed persons living in adapted
accommodation, but decided against doing so:
From August 2011 onwards, there was a consistent view within Government
that the most workable solution to the difficulties for the disabled that would
result from the introduction of the bedroom criteria was to increase what could
be made available through DHPs. In a paper dated 2 September, the officials
provided more information on the expected response to an increase in the DHP
package as the best means of mitigating the effect of the under-occupation
measure for `hard cases' such as people living in adapted accommodation.
Para 4 of the paper stated that those living in adapted accommodation had been
singled out by the `lobby' as a group that should be exempted from the
426
54 MA, id., para. 39.
55 R (On the Application of A) v. Secretary of State for Work and Pensions [2015]
EWHC 159 (Admin), paras. 62±63.
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measure (mostly) on cost grounds. The officials stated that they had explored
the possibility of an exemption for this group and other types of `hard cases'
which had been flagged up by stakeholders. They had concluded that trying to
define `significantly adapted accommodation' for exemption purposes would
not be workable. Such an exemption would be difficult and expensive to
deliver effectively, especially when Universal Credit was introduced. It would
either be too broad brush or leave out many other equally deserving hard
cases.
56
The Court of Appeal found that it was open to the Secretary of State not to
legislate for an imprecise class of persons to whom the criteria would not
apply. In essence, this would produce too much uncertainty and complexity
in the system.
57
Given that the question was whether or not the regulations were
`manifestly without reasonable foundation',
58
the DWP was always going to
get over this low obstacle with that extra information. Mere disagreement is
not sufficient to meet the threshold; nor are reasonable grounds for criticism;
nor that the line has been drawn imperfectly.
59
Added in to the mix that the
regulations had been discussed by Parliament, and, in particular, `some of
the alleged shortcomings in the scheme that have been canvassed before us
were debated in Parliament', the Court was even less likely to find them
unlawful on the grounds of discrimination.
60
However, all of this left the DWP with another problem. The reason why
they were successful in the main has been the existence of the discretionary
housing payments (DHP) scheme. This underlined their success in MA and
the subsequent cases, Rutherford v. Secretary of State for Work and Pensions
and AR v. Secretary of State for Work and Pensions.
61
In MA, Lord Dyson
MR said:
427
56 MA, op. cit., n. 53, para. 11.
57 The Court was able to distinguish Burnip (op. cit., n. 53) because (at para. 64)
Burnip was concerned with a different scheme; DHP had changed and been
increased; the evolution of the policy many not have been before the court in
Burnip; and the Regulations that were being considered in Burnip were not made
under the shadow of the financial crisis and the need to reduce public spending
which the Coalition government was elected in 2010 to bring about.
58 This was because the discrimination was indirect, in the Thlimennos sense; although
it was said that the test was the same whatever the discrimination in the context of
benefits: Humphreys v. Revenue and Customs Commissioners [2012] UKSC 18,
[2012] 1 WLR. 1545, per Baroness Hale (which appeared after Burnip and possibly
is one reason why the outcomes between the cases were different).
59 R (RJM) v. Secretary of State for Work and Pensions [2009] AC 311, 57, per Lord
Neuberger. As Lord Dyson MR put it in MA (op. cit., n. 53, para. 80), `The stringent
nature of the test requires the court to be satisfied that there is a serious flaw in the
scheme which produces an unreasonable discriminatory effect.'
60 Bank Mellat v. HM Treasury [2013] 3 WLR 179, para. 44, per Lord Sumption; Black
v. Wilkinson [2013] EWCA Civ 820, [2013] 1 WLR 2490, paras. 46±49.
61 Rutherford v. Secretary of State for Work and Pensions [2014] EWHC 1613
(Admin); R (On the Application of A), op. cit., n. 55.
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In combination, [Duncan Smith's] reasons are far from irrational. Central to
his thinking is the idea that there are certain groups of persons whose needs for
assistance with payment of their rent are better dealt with by DHPs than HB.
62
Much of the discussion at first instance in Rutherford concerned essentially
the academic nature of the question. That is, the Rutherfords had been
guaranteed DHP from the commencement date through to April 2015. The
child was to turn 16 in October 2015. Pembrokeshire had effectively
undertaken to consider whether to extend the DHP in this case and Stuart-
Smith J suggested that `it would appear perverse for Pembrokeshire to reach
a contrary decision in the future if the scheme and the Claimants' circum-
stances remain unchanged'.
63
The DHP award had `plugged the gap', and,
although DHPs were discretionary, the local authority was obliged to
exercise its discretion in accordance with public law principles and human
rights legislation. One consequence of this is that the legal challenges have
now morphed in to challenges against local authority discretionary housing
payments policies.
64
When the cases reached the Court of Appeal, both Rutherford and Awere
successful.
65
The Court distinguished MA on the basis that these two cases
raised specific, discernible, and certain categories with limited numbers
(particularly sanctuary schemes).
66
The actual facts of the cases were again
irrelevant ± the real issue was whether DHPs saved the scheme and whether
MA was distinguishable on the facts. It was held that they did not in these
limited cases. In Rutherford, the Secretary of State had effectively got
himself in a twist. He argued that an extra bedroom is required for the carer
of a disabled adult but not for the carer of a disabled child because the latter
would be cared for by family members. That did not wash with the Court,
which exposed the problematic reasoning in the following way:
[T]he Secretary of State did not address how the distinction could be justified
by reference to the best interests of a child as a primary consideration. He
justified the distinction between making provision for a bedroom for disabled
children but not for disabled adults by reference to the best interests of the
child and explained the different treatment on that basis. On that basis, it
seems to us very difficult to justify the treatment within the same regulation of
carers for disabled children and disabled adults, where precisely the opposite
result is achieved; provision for the carers of disabled adults but not for the
carers of disabled children. In this context, moreover, the argument based on
428
62 MA, op. cit., n. 53, para. 82.
63 Rutherford, op. cit., n. 61, para. 53; thus effectively binding the council to pay DHP
until that time.
64 See, for example, R (Gargett) v. Lambeth LBC [2008] EWCA Civ 1450; R(Winder)
v. Sandwell MBC [2014] EWHC 2617 (Admin); R (Hardy) v. Sandwell MBC [2015]
EWHC 890.
66 id., para. 53: `MA makes a clear distinction between a broad class for which DHPs
are appropriate, and a narrow class for which DHPs are not appropriate. The case of
A is within the narrow class covered by the decision in Burnip.'
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the promotion of independent living for adults, whereas children can be cared
for within the family, has little purchase.
The outcome of this Court of Appeal decision, then, can be presented as a
triumph of liberal law and reason. Liberal law, in its objectivity and technical
garb, has beaten the DWP.
67
However, it can equally be seen as an extremely
limited break on the policy and, of course, the bedroom tax remains for the
significant majority of those others affected. The limits of law here must be
acknowledged, particularly as regards benefits ± court reverses of policy are
regularly simply overturned by further regulations in a `cat-and-mouse'
game.
68
Further, the distinction between these cases and MA is rather harder
to fathom. The fact that these cases were specific and small in number made
the challenges successful, so that the broader bedroom tax policy was not
threatened; because MA involved a more generic challenge to the policy, it
was unsuccessful. Such distinctions are what give liberal law its lifeblood
but look like a method of avoiding the significant questions about the effects
of the bedroom tax on households ± a luxury enjoyed by the senior courts.
2. Into Brobdingnag
69
Two themes emerged in the bedroom tax decisions before the first-tier
tribunal (FTT): (a) what is a `bedroom'? and (b) when can MA be
distinguished?
As regards the first question, some wild and wacky arguments were put to
(and accepted by) the FTT which suggests that the proper test can be derived
from the overcrowding provisions in the Housing Act 1985 (specifically
sections 324±6), the Housing Health and Safety Rating System in the
Housing Act 2004, and, perhaps most interesting, drawing on dicta of Lord
Bingham in Uratemp Ventures v. Collins.
70
In SC231/13/01993 and SC236/13/0942, Judge Moss's position was that
those arguments were essentially addressing other issues and were outside
the context of the bedroom tax. The latter was a question of fact, not law. It
is an ordinary English word. The question was one of both objective and
subjective criteria, of course decided at the date of the decision (but the
actual room use at the date of the decision is not determinative ± her point
was that this is not a once-and-for-all decision as individual circumstances
change). Objectively, would that room normally be classed as a bedroom?
429
67 See, for example, P. Butler, `Appeal court rules bedroom tax discriminatory in two
cases' Guardian, 27 January 2016.
68 D. Cowan, Housing Law and Policy (2011) ch. 8.
69 Ordinarily, of course, the decisions discussed in this section would not be available,
but we had an opportunity to consider those that have been made available through
various social media outlets.
70 Uratemp Ventures v. Collins [2001] UKHL 43, in which Lord Bingham said that the
use of the room was to be judged at the date on which the decision was made.
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Subjectively, are there any particularly circumstances which would suggest
that a room normally considered a bedroom should not be one? Further, a
bedroom had to be considered in the light of `home' (in respect of which
benefit is payable
71
). Home connoted a degree of privacy and sanctuary,
personal space as well as being somewhere to sleep.
Thus, in SC236/13/0942, it became apparent after a home visit that the
room classed as a bedroom actually had a lift going in to it and required
sufficient space for a wheelchair, and so on. A bed could just about have
been squeezed in to the room but there would have been no privacy or
sanctuary: `It is the need for the use of the lift which takes this room out of
the definition of a bedroom in a home'.
Much of the nonsense has been put to rest by the Upper Tribunal decision
in SSWP v. Nelson and Fife Council.
72
This draws attention to `. .. a number
of case sensitive factors will need to be considered including (a) size,
configuration and overall dimensions, (b) access, (c) natural and electric
lighting, (d) ventilation, and (e) privacy'.
73
Room sizes for overcrowding
rules are irrelevant, however.
On the second question, distinguishing MA and Rutherford, perhaps the
most remarkable FTT decision was in the case of Carmichael. Mr and Mrs
Carmichael's case had been considered explicitly in MA, in which the Court
of Appeal made clear that their case was caught by the regulations. However,
when the case was remitted to the FTT, it found in favour of the Carmichaels
on the ground that they were discriminated against.
74
The basis for this
decision was that, while MA was a judicial review of the scheme, this was a
statutory appeal of an individual decision. Oddly, Judge Watson said that he
did not find MA `. .. particularly helpful in dealing with the case'.
75
In other
cases, the FTT has distinguished MA and Rutherford where DHP has not
`plugged the gap', a position which seems the logical outcome of the DWP's
position.
76
BEDROOM TAX AND THE USES OF TWITTER
In this section, our discussion is preceded by a review of the literature on
social media, social movements, and protest. We then provide a short
description of Twitter for the uninitiated, following which we move to our
case study. We draw attention to the development of the label `bedroom tax',
430
71 Social Security Contributions and Benefits Act 1992, s. 130.
72 SSWP v. Nelson and Fife Council [2014] UKUT 525 (AAC).
73 id., para. 31.
74 Tribunal Judge Watson, SC068/13/12054,; see also the decision of Judge McMahon
in SC068/14/01608.
75 Watson, id., para. 15.
76 Mr Gresham's case, SC008/13/08128, in which the court expressed scepticism about
the lawfulness of the local authority's DHP policy.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
and argue that Twitter was the space where the label became solidified, or
perhaps better `stablilized',
77
as representing the benefit reduction, despite
other attempts (on Twitter and other spaces) to produce different labels. We
then draw attention to our four interview participants' involvement. To
protect their anonymity, we have used sobriquets as descriptors: `the smiling
assassin'; `the understater'; `the legal conduit'; `the social media polymath'
(who was also involved in a bedroom-tax challenge).
During 2014, we conducted telephone interviews with them, deciding on
that method so that their anonymity could be protected (in three cases, the
Twitter name was not the real name of the research participant ± however, in
two such cases, there are links to their blogs which contain details about
them). Only one of the participants was known to us prior to the study.
Between the four of them, they had over 16,000 followers and had tweeted
over 85,000 times.
78
The interviews lasted between 40 minutes to an hour
and a half. Obviously, this is an exploratory study and we can do no more
than draw some basic, limited messages from our data.
The key point is that, despite only a limited sample, Twitter has the
potential to work alongside other strategies and tactics to flatten structures of
power so that four, relatively ordinary individuals, who feel passionately
about the bedroom tax, can affect our understandings as well as get people to
do things;
79
or to put it another way, they open up fields of knowledge and
action.
80
We are not suggesting in any sense that these four have somehow
changed the world of the bedroom tax, which remains in place in any event,
but as four ordinary people with a social media application on their
smartphones, they have considerable power. It is fair and right to say that
they are all male, so that this flattening of power in this case study is only
partial.
81
We are also interested in the ways in which legality is enfolded in to their
actions. As they tweet, we argue that they are (consciously and/or uncon-
sciously) producing legality. The names we have given them (which are not
artificially constructed labels, but phrases they used in their interviews, and
431
77 See Cloatre, op. cit., n. 12, p. 14: `the ``translation'' of multiple connections into a
new actor with a sense or appearance of stability is at the core of much [ANT]
research.'
78 As at 13 April 2015.
79 Compare the critique of the #bringbackourgirls as hashtag politics:
2014/05/11/subterranean-hashtag-blues/>.
80 M. Foucault, `Afterword: The subject and power' in Dreyfuss and Rabinow, op. cit.,
n. 12, p. 21. As he puts it earlier, in discussing anti-authority oppositions:
They are an opposition to the effects of power which are linked with knowledge,
competence, and qualification: struggles against the privileges of knowledge.
But they are also an opposition against secrecy, deformation, and mystifying
representations imposed on people.
81 It is important to make this point in the context of the more general problem about
`trolling' female tweeps.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
have been agreed with them) and their practices are imbued with legalism, as
we discuss below.
1. Social media, social movements, and protest
There is little doubt that, since 2009 at the latest, social media has become
intertwined with social movements and protest. In 2009, it was reported that:
`There may have been few things that protesters, politicians and activists
share, but during the G20 meeting, they were united by their use of
Twitter.'
82
One of the key questions now addressed in the literature is not
whether social media is related to social movements and protest action, but
how it does so and under what conditions it relates to them.
83
On the one hand, there are those who regard the capacities of social
media, particularly Twitter, to produce networked populations, with decen-
tralized and horizontal power structures, which facilitated the development
of new forms of activism.
84
The so-called `Arab Spring' uprisings and
Occupy movements are often held up as examples of this technological
development.
85
On the other hand, there are those who have expressed
concerns at the development of new methods of controlling dissenting
populations, but, more pertinent to this article, that it develops what has
become known as `slacktivism' ± activism with minimal personal effort
(such as clicking `like' to a post) that has no social or political impact.
86
These polarized positions have given rise to a third set of literatures,
which have provided more nuanced positions. Juris, for example, a student of
Castells (the doyen of the network analysis), has argued that the widespread
use of social media by activists has created a `logic of aggregation, which
involves the assembling of masses of individuals from diverse backgrounds
within physical spaces'; further, it offers:
an alternative cultural framework that is shaped by our interactions with social
media and generates particular patterns of social and political interaction that
432
82 M. Ward, `Twitter on the front line', BBC News, 2 April 2009, at:
news.bbc.co.uk/1/hi/technology/7979378.stm>.
83 See, for example, S. Valenzuela, `Unpacking the use of social media for protest
behaviour: The roles of information, opinion expression, and activism' (2013) 57
Am. Behavioral Scientist 920, at 921.
84 Most notably, here is the network analysis developed by Manuel Castells in his
trilogy, the last of which is Networks of Outrage and Hope: Social Movements in the
Internet Age (2012).
85 Compare M. Lim, `Clicks, cabs, and coffee houses: Social media and oppositional
movements in Egypt, 2004±11' (2012) 62 J. of Communication 231, which provides
a corrective to this analysis. The argument there is that `social media represent tools
and spaces in which various communication networks that make up social
movement emerge, connect, collapse, and expand' (p. 234).
86 The term derives from E. Morozov, The Net Delusion: The Dark Side of Internet
Freedom (2011).
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
involve the viral flow of information and subsequent aggregations of large
numbers of individuals in concrete physical spaces.
87
Gerbaudo's analysis also fits in to this more patchwork theoretical frame-
work. His use of the term choreography, as a writing of movement or action,
particularly resonates with this study; but his study also stresses the sig-
nificance of participants' emotional investment in protest, which potentially
breaks do wn, or works wi th, the indiv idualiza tion inher ent in the
consumption of social media.
88
What binds these studies of social movements together is their relation-
ship with forms of protest that are combined with some physical co-location
of populations. Hence, these studies emphasize the ways in which physical
space becomes entangled with virtual space. What is distinctive about our
study is its engagement with modern forms of legality, itself an indivi-
dualizing set of narratives which does not require physical spaces as such.
89
Nevertheless, the kinds of discussions above prompt us (again) not to over-
claim for the use of Twitter, as well as providing a useful vocabulary for
discussing protest.
2. Twitter: A note for the uninitiated
A tweet is a form of micro-blog posted on the host site, Twitter. It is made up
of 140 characters (including spaces), and sometimes known as a `microblog'
(a particularly useful label, as a tweet might link to other social media
outlets, such as blogs). It is posted by an individual or organization
(sometimes known as a `tweep') with an address beginning with the @
symbol. One's `followers' (that is, those people who press a button on
Twitter to follow you) then receive the microblog. In turn, those followers
may `retweet' or `modify and retweet',
90
so that a microblog has the
potential to reach an unlimited number of followers. Similarly, one can reply
to a tweet (although a quirk of Twitter is that a reply can only be seen by
those who follow both parties if a full stop or something else is put at the
start of the reply) and `favourite' a tweet (which essentially just saves it to
your account).
Tweets range from the mundane (food, train journeys, and so on) to the
commercial (advertising) to the political to the abusive (known as `trolls').
433
87 J. Juris, `Reflections on #Occupy Everywhere: Social media, public space, and
emerging logics of aggregation' (2011) 39 Am. Ethnologist 259, at 260, 266; it is
important to Juris's position that these logics of aggregation exist alongside the
networking logics ± thus, he refers to the generation of `crowds of individuals'.
88 Gerbaudo, op. cit., n. 11, ch. 2.
89 Compare the kinds of housing protests discussed by D. Cowan and S. Wheeler, `The
reach of human rights' in Property and Human Rights in a Global Context, eds. T.
Xu and J. Allain (2015).
90 This practice is commonly preceded by `RT' and `MT'.
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They provide a valuable, if occasionally limited, source of information about
specialist subject areas. The hashtag is used in a tweet to denote a subject-
matter, an event (such as a conference), or sometimes simply for amusement.
It enables people, not just one's followers, to follow a theme which can be
searched and saved. So, for example, the hashtag #Ukhousing might be used
by a tweep to follow and/or join a debate on that subject.
Key to its significance is that the Twitter programme is available not just
on a desktop computer but loaded (often preloaded) on to smartphones and
tablets, with an email alert when a person tweets at you, retweets or replies to
you or favourites a tweet you have written. It is an easy-access, readily
available programme on which random thoughts and considered opinions are
posted. Apparently, there are 974 million existing Twitter accounts, although
a considerable proportion are inactive.
91
Celebrities have millions of
followers and, no doubt, armies of tweeters on their behalf.
92
Grant Shapps
MP, who plays a central role (as the then-Housing Minister) in the case study
in this article, was said to have found a way to increase his followers to over
55,000.
93
As Jeffares asks rhetorically, `what proportion of think tanks,
columnists, politicians, senior civil servants, journalists, newspapers, media
organi sations , social sc ientist s, blogge rs, rese archers , lobbyis ts and
consultants are not on twitter?'
94
3. Labelling
The battle of the bedroom tax was as much a battle of the label as it was over
policy.
95
In Gerbaudo's terms, there were a multiplicity of choreographers
initiating and guiding the label, but its production as the `bedroom tax'
allowed for `the symbolic condensation of people around a common identity
and their material precipitation in public space'.
96
434
91 E. Sherman, `Many twitter users don't tweet, finds report' CBS Moneywatch, 14
April 2014, at http://www.cbs news.com/news /many-twitter- users-dont-twe et-
finds-report/>.
92 See, for example, . One of us, after tweeting that
they had been out on a #JLS dinner, found that they were followed (and then
unfollowed) by numerous fans of the pop group, JLS.
93 P. Wintour, `The rise and fall of Grant Shapps' twitter followers' Guardian, 7
Septemb er 2012, at tp://www. theguardi an.com/p olitics/2 012/sep/0 7/grant-
shapps-twitter- followers-analysi s>. Shapps's activitie s on Twitter have been
`storified' ± a programme which pulls together various tweets commonly with a
hashtag ± at . Shapps currently has
84,400 followers.
94 See Jeffares, op. cit., n. 10, p. 6.
95 A. Marsh, `The battle over the ``bedroom tax'': Politics, rationality and discourse'
(2014), paper presented to the 2014 European Network of Housing Research
Conference.
96 Gerbaudo, op. cit., n. 11, p. 44.
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The regulations themselves describe the rules as the `Maximum rent
(Social Sector)'. Originally, the DWP termed them fairly neutrally as the
`social sector size criteria', but this quickly morphed in to `under-occupation
of social housing'.
97
That had provided one of the rationales for the policy in
the label and effectively advanced the fairness rationale. The `bedroom tax'
label appears to have begun in a speech given by the crossbench peer,
98
Lord
Best, who has been a well-known figure in United Kingdom housing for
nearly 50 years. From his point of view, it was a tax because occupiers had
nowhere to move to and they had to pay a levy to the Exchequer. His point
was that everybody was suffering ± tenants and housing providers ± and this
was fundamentally unfair. As Marsh acknowledges, the `tax' label `is a fairly
familiar tactic in British political debate, because we know it can work to
undermine a policy' ± for instance, the poll tax, pasty tax, caravan tax ±
although the bedroom tax is not a tax in and of itself, but a reduction in
personal subsidy.
99
And, of course, the tax label has particular emotional
connotations, providing an impetus during a period of initiation of protest
and an attraction to gatherings during the phase of sustainment.
100
The DWP has referred to the policy as the `spare room subsidy'. Its
reasons for so doing are clear, in that it seeks to neutralize the unfairness of a
tax on bedrooms by reference to the idea of a subsidy for spare rooms as an
appeal to a common-sense proposition about the unfairness of that spare
room/s (in the social sector, at any rate). Indeed, all documentation about the
bedroom tax produced by the DWP now uses this label and has done since 27
February 2013.
101
In fact, Grant Shapps appears to have been the progenitor
of this label, having tweeted that he would be appearing on a Radio 4
programme to debate the `spare room subsidy'.
102
But, by this stage, the
bedroom tax label had stuck.
103
Indeed, in a memorable moment of
435
97 Exemplified in the impact assessment title.
98 This, in turn, echoed the National Housing Federation's position (of which Best was
a long-time chair): Jeffares, op. cit., n. 10, p. 129.
99 We are, of course, in danger of dancing on the head of a pin here. If one considers
the housing benefit part of a claimant's property, as the new property thesis might
do, then a reduction in amount operates as a tax. There is also a pragmatic reason for
the `tax' label ± it simply uses fewer of the available 140 characters in a tweet.
100 Gerbaudo, op. cit., n. 11, p. 44.
101 Paul Lewis Money, `DWP FOI on first use of phrase ``spare room subsidy''', at
//paul lewismo ney.bl ogspot. co.uk/ 2014/06 /foi-r esponse -on-us e-of-ph rase-
spare.html>. This term appears to have superseded the label `under-occupation
penalty'.
102 Tweet, 17 February 2013; see J. Birch, `Welfare, the bedroom tax and the battle of
language', at
tax-and-the-battle-of-language/>.
103 Indeed, Duncan-Smith made a formal complaint against the BBC of bias because of
their use of the `bedroom tax' label: A. Glennie, `Duncan Smith blasts BBC for
``bedroom tax'' bias; Work and Pensions Secretary accuses corpor ation of
promoting Labour's views in furious letter' Daily Mail, 28 October 2013.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
parliamentary irony on 24th October 2013, Lord Freud, the welfare minister,
criticized the `bedroom tax' label, but then went on to use it himself.
104
Whether or not the Labour party had adopted the `bedroom tax' label,
common usage was clearly established by early 2013. Jeffares conducted
an analysis of tweets posted over 72 hours between 8 and 11 April 2013
where the terms bedroom tax, #bedroomtax, spare room subsidy and
#spareroomsubsidy were used. Of a total of 8,155 tweets, which he
estimated as being approximately 80 per cent of Twitter traffic, 7,936 used
either `bedroom tax' or #bedroomtax (this included re-tweets or quoted
tweets).
105
This suggests a particular moment when the harnessing of social
media (alongside other sources) produced the label.
STRATEGIZING SOCIAL MEDIA: PROTEST AND LEGALITY
In combination, our four research participants, using different strategies of
everyday life, have had considerable effects in structuring the fields of
action. However, for the purposes of this analysis we group them into two
predominant strategie s. The first are two information provid ers (the
Understater and the Legal Conduit); the second are challengers (the Smiling
Assassin and the Social Media Polymath). Both sets of strategies used
Twitter for legal effects. This is particularly the case in respect of the chal-
lengers, who were the most vocal forms of legal protester (albeit in different
ways), seeking to operate against the law. That is, they sought to use the
formal law against itself, and Twitter was used to distribute a `how to' set of
know ledg es. H owev er, th e info rmat ion pr ovid ers m obil ized t heir
information tactically, providing explicit or implicit instructions to others
to challenge the policy.
106
We might see them as gaming the law, showing
its fissures and cracks. However, it is important that our organizing trope
here is no more and no less than that; that is, a method of organizing our
data. As Ewick and Silbey themselves suggest, `. . . a person may express,
through words or actions, a m ultifaceted and possibly cont radictory
consciousness'.
107
Further, they themselves are simply labels, conveyances
of meaning (like the bedroom tax label itself), which are overly simplistic,
and overly structured, so we must recognize that our participants' narratives
do not easily shoehorn into these categories.
436
104 N. Nelson, `Lord Freud says bedroom tax term is misleading . .. then refers to it as
bedroom tax himself' Sunday People, 27 October 2013.
105 Jeffares, op. cit., n. 10, pp. 129±30.
106 See J. Lemert, Does Mass Communication Change Public Opinion after all? (1981);
Valenzuela, op. cit., n. 83.
107 Ewick and Silbey, op. cit., n. 9, p. 50.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
1. The information providers
In two cases, the Understater and the Legal Conduit, the provision of
information was essentially the anti-authority challenge. Apparently neutral
information could be tweeted to significant effect; knowledge could be used
to challenge apparently authoritative accounts of the bedroom tax by a single
tweet. The Understater
108
tweeted about welfare reform generally and
focused mostly on the provision of formal media reports which he trawled
(`it has become part of my job'). He became involved in Twitter:
. .. as an opportunity to try to effect change and to push out the message that I
wanted to get out there. For this specific purpose, my frustration was that
central government rhetoric about welfare recipients and negative stereotyping
did not correspond with my day-to-day experience.
109
His passion was social justice and he communicated that emotion through
the understatement of tweets ± sometimes just with a headline and a weblink
to a local newspaper (`grabbed' by a web-based sorting agent), adding in the
local MP's Twitter address so that the MP saw it. He sought to be balanced
about the bedroom tax in his tweets, suggesting that `some campaigners are
their own worst enemy'. He had written a piece on Facebook about the
bedroom tax which had 80,000 `shares'. His strategy was to give a tweet a
visual look, through the use of returns, include specific MPs in his local
tweets, and amplify a headline in a tweet. He told us that he was:
compelled to do it; it's within me; if I don't push back on what I see as anti-
evidential words and phrases coming out of central government then I can't
stop myself. Some things come out and I grab my phone to tweet something
about it.
As he put it, `retweeting is always nice when it goes a bit crazy'.
The Legal Conduit came to the bedroom tax in part in response to his
followers and, in part, because people began to send him their FTT judgments.
Recognizing that these were not readily available (as they are unpublished) but
that they might be useful as a legal resource for others, including but not
limited to his followers, he blogged about them and tweeted the blog. Twitter
was, in this sense, a way to publicize his blog (which is read over 35,000 times
per month)
110
and the judgments (`I wasn't expecting them to be quite that
barking . . . You expect a certain degree of reasoning from a [FTT] but I wasn't
expecting the disparity, possibly on some issues, but not on the generality').
However, he also saw himself as being the `pessimistic voice of legal reason'
against other apparently authoritative, positive tweep voices. The Legal
Conduit is very aware that his blog and Twitter account are followed by judges
and the DWP (which apparently was circulating his notes).
437
108 So-called because, as he said, `understatement is the most powerful thing on twitter'.
109 The understater is a housing professional.
110 He told us that a single tweet leads to over 200 new visits to his blog.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
Although it may seem easier to say that the Legal Conduit's approach was
`legal' ± indeed, like the lawyers striving to beat law through law, he was
simply providing information about law ± we like to think that his was a
rather more subversive use of legality than a simplistic and superficial label
conveys. He recognized (and was theoretically adept enough to recognize)
that information about law can make things happen. He was not looking for
clients, but offering a service, demonstrating where the potential fault lines
in law lay. He was both inside and outside law in that sense. The Understater,
though, was also agitating for legal change. His apparently neutral approach
belied a clear political (in a narrow sense) goal ± a hope that through the
provision of information, politicians would see sense ± and he adopted an
`effects of the law' approach to obtain that legal change.
Neither of these tweeps could be regarded as `slacktivists' (although a
retweet could be regarded as an example of slacktivism). They were profes-
sionals with a significant following, whose dissemination of mobilizing
information to that following was a recognition of the values and uses of
information in both online and offline participation.
111
They were both
informal `leaders' (although neither would style himself like that), using
Twitter to open different windows on the protest space; or to use a different
metaphor, choreographing different spaces.
112
Certainly, the Legal Conduit
was seeking to provide an alternative perspective about the prospects of
success at challenging a bedroom-tax determination through particular sets
of arguments, and publicizing the judgments of the FTT supporting or
dismissing those arguments. The Understater was seeking to change political
thought, or at least the image of the recipient of state support for housing, his
tweets predominantly reflecting his passionate belief in social justice and the
appalling presentation of such recipients by some politicians and right-wing
print and other media (including tweeps).
2. The challengers
The challengers were both active, albeit in different ways, in challenging the
bedroom tax. The Smiling Assassin's strategy was to destroy the bedroom
tax from within, principally by using techniques of administrative justice,
113
438
111 Valenzuela, op. cit., n. 83, p. 925.
112 As Segerberg and Bennett put it:
Twitter is interesting as an organizing mechanism within the specific protest
ecology. As well as tra nsmitting information, ne tworked protest spaces
constitute negotiated spheres of individual and collective agency. As digital
and social media become increasingly prominent, they too become networking
agents . . . within the protest space.
A. Segerberg and W. Bennett, `Social media and the organization of collective
action: Using twitter to explore the ecologies of two climate change protests' (2011)
14 Communication Rev. 197, at 201.
113 See, for example, R. Thomas, `Administrative Justice, Better Decisions, and
Organisational Learning' [2015] Public Law 111.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
and creating a model letter requesting extensive further information of the
housing benefit authority, such as for policies regarding the definition of a
`bedroom'. The purpose of that letter was as much to highlight the
inadequacies of the law's failure to define what constitutes a `bedroom' in
law as it was to put a spanner in the bureaucracy administering the benefit.
For, rather than legal challenges, the Smiling Assassin had a strategy. It was
to `swamp' housing benefit offices with review requests and appeals against
bedroom tax assessments; he highlighted dreadful practices of social
landlords and local housing benefit offices; he praised `good' practices
(such as some landlords' decisions to reclassify properties as having fewer
bedrooms, although this negatively affected their income stream).
His model letter, the Smiling Assassin told us, had been downloaded
180,000 times in the first three weeks of its appearing. As he put it:
If every tenant affected by the bedroom tax decision appealed then the system
is brought to its knees. The government expects just 3% to appeal and
estimates an appeal costs the local council £200. It won't and it will cost the
council £1,500 for everyone that appeals and about £18m to [X] Council if all
12,000 appeal.
Such was the significance of this letter that the Chartered Institute of
Housing, the professional body of housing providers, issued statements
decrying the strategy, while at the same time saying that they were working
behind the scenes to disrupt the iniquitous tax. The Smiling Assassin was
clearly interested in law, in the sense that he would assist people appearing in
the FTT, but, as he put it, `courts don't dispense justice'. His legal strategy
was, in part, that he `just need[ed] one judge to say it's ultra vires just to
accept the view of landlords [that is, the landlord designation of a room as a
bedroom] without the authority checking. It would all become unworkable'.
Social media, and particularly the link between Twitter and his blog, became
his dissemination tools because `social media mobilises tenants but also the
dissemination of shite. Lots of what I do is dispelling myths, plus points and
negative points.'
The Social Media Polymath was a little different from the others in this
sample. He was a social tenant who was affected by the bedroom tax and
who had challenged it. He was ill and his partner disabled, so that their
`spare room' was full of medical treatment equipment. He was also a
campaigner. His tweeting had, in part, opened his profile up and he had
become quite prominent: `Twitter has proved to be a very good way of
getting our story out as it has developed . . . Following our story going out
there was an avalanche almost of other people tweeting about their case.' His
strategy was simple ± `to get people to think about the truth rather than
rhetoric'. His strategy had been successful, and his political and media
profile was developing in diverse, almost uncontrollable ways. He described
his court appearance as a sort of `DWP, tory, IDS bullshitfest really'. We
discussed whether the outcome of his case had reflected how he himself had
439
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
felt about his position, and whether, in effect, the law had represented him.
His view was that his barrister, who was incredibly busy, had done a good
job but he wished that he could have had an hour to explain his case to the
barrister. Thus, the legal process had effectively silenced him, whereas his
other strategies were enabling him to tell his story publicly.
As Ewick and Silbey observe, legality is polyvocal and, although one can
distinguish different strands of legality in their different approaches, they are
enmeshed. The Smiling Assassin was seeking to smash the system from
within, but he was at that time equally willing to bow before the law in his
desire to get one judge to say the bedroom tax was ultra vires, even though
(to him) courts don't dispense the law. The same type of complex,
contradictory narrative appears in the Social Media Polymath's narrative ±
he actively used the law for his own individual gain but at the same time
decried its utility, preferring to focus on a political campaign.
114
In these strategies, we can see the ways in which Twitter and other social
media formed part of broader choreographed narratives, designed either to
smash the system and/or to force political change through drawing attention
to the general and case-specific iniquities of the tax. Like the Legal Conduit,
the challengers used Twitter as part of a broader social and general media
strategy. They have affinities with Juris's logic of aggregation, because they
were responsible for drawing together protestors at different points. In our
appreciation, such a logic of aggregation can equally be the diffusion of the
key messages to other physical or virtual spaces, and actants ± the
aggregation, for example, of the review letters, and the physical appearance
of the characters at protest rallies or public debates.
CONCLUSIONS: THE BEDROOM TAX AND TWITTER
The denigration of the social security state by the Coalition government has
been one of the defining features of austerity politics. In many respects, the
bedroom tax is the apotheosis of that denigration, producing states of
insecurity for people who can ill-afford that insecurity. The failure of the
judicial reviews did, of course, produce one concession ± that without
discretionary housing payments, the policy potentially would have been in
contravention of Article 14 discrimination. However, this concession is
entirely in accordance with DWP policy. It enables them to say that the
bedroom tax has reduced housing benefit expenditure, while at the same time
440
114 We see the secondary data analysed by S. Halliday and B. Morgan (in `I fought the
law and the law won? Legal consciousness and the critical imagination' (2013) 66
Current Legal Problems 1) as essentially making the same point about polyvocality
± while they acknowledge and accept the limits of totalizing schemes and accept that
`much will be found in the spaces between the ends of the dimensional spectrums',
they argue that these discourses are theoretically productive.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
requiring those affected to be reliant on the cash-limited, locally distributed,
insecure discretionary payment. For a while, the FTT operated as some sort
of brake on the policy in individual cases, albeit for very odd reasons.
However, that now appears as an aberration, more than anything else.
Our argument in this article, however, is both broader and simple. Twitter
is a potentially fantastic resource for socio-legal researchers. It has been
underused. Because it is so fast-moving, one can find the stabilization of a
particular idea, the tipping point. It is used by the powerful, for sure, and
much Twitter-traffic is dull, but it can also be used to challenge policy and
practice. The lifetime of a policy idea can now be very short. As Jeffares
argues, `Hashtag politics is a practice of modern policy-making where policy
ideas are coined, fostered and imbued with meaning and associations, before
eventually being overlooked, forgotten and seldom mentioned again.'
115
Our participants offered two different ways of using Twitter for a purpose
± by providing information, to arm their followers and other recipients with
information to challenge dominant or apparently authoritative narratives. We
would stress the ordinariness of our research sample ± with no disrespect to
them, who probably have no other aspirations ± but their reach is of
significance; indeed, we selected them for our study precisely because of
their choreographic positionality. Thus, the promise of social media is that
potentially it adds to the available techniques that flatten power structures
and spatial imaginations. This is spatial governmentality in action; it is
uncontrollable, miasmic, and enables actors to jump spatial scales.
116
If socio-legal scholars are interested in the interstices between agency and
structure, in understanding strategies of resistance, as well as the mundane
(which we take to be three of the most significant sites of study), they should
similarly be interested in following the Twitter actor flows. If we do so, and
make that our starting point, we may end up with a rather different set of
understandings of legality and legal spaces.
117
In this way, through our data,
we have sought to develop an analysis of legality and protest, demonstrating
how social media may offer quite interesting challenges to our appreciations
of that literature.
The social media literature review offered in this article also provides
interesting sparks for socio-legal researchers interested in the uses of, as well
as controls on, virtual and public spaces. We have been drawn particularly to
the helpful analogy of choreography in this article, as each of our partici-
441
115 Jeffares, op. cit., n. 10, p. 145.
116 See, for example, A. Akinwumi, `Powers of Reach: Legal Mobilization in a Post-
apartheid Redress Campaign' (2013) 22 Social & Legal Studies 25.
117 The perhaps counter-intuitive sociology of the door-closer by `Jim Johnson' (aka
Bruno Latour) in `Mixing Humans and Nonhumans Together: The Sociology of a
Door-closer' (1988) 35 Social Problems 298 suggests some interesting narratives
which might be developed here, particularly about human's lack of control of
technology.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
pants was, in one way or another, seeking to choreograph aspects of protest
against the bedroom tax. However, this literature also reminds us (if we
needed reminding) of the limits of social media, and of the ways in which we
interact both with it and beyond it. We should be careful not to essentialize
social media, just as we should be careful to emphasize the limits of our data.
One particular limit of our study is that, while we can claim that our
participants got things moving, we cannot claim a specific impact for their
work beyond the attempt by the Smiling Assassin to bring down the
decision-making bureaucracy. It may be that many of those others are
`slacktivists', but it is also clear that targeted information provision,
publicization of other social media (like blogs), alongside other strategies
might make a difference. We cannot claim that Twitter on its own provides
the single successful protest resource; that would be simplistic. However, it
does provide a relatively new method of co-ordinating and developing a
protest dance (to continue the choreographic metaphor). The bedroom tax
still exists and is being propped up by the discretionary housing payments
system. The voices of protest remain on Twitter and elsewhere in the
blogging and political communities, and new calls for its abolition are made.
Yet, the response to the final research report, by Lord Freud in the House of
Lords, was that the report demonstrated that:
the policy is promoting more effective use of housing stock and encouraging
people to enter work and increase their earnings. We will therefore be
maintaining the policy and will continue to protect vulnerable claimants who
require additional support through discretionary housing payments.
118
There are other ways in which a study of social media might give added
value, for example, by thinking about the use of social media in reference to
understandings of legal consciousness. Implicitly, we have drawn on that
literature in this article. This point is, perhaps, obvious. Legality is produced
socially through Twitter as it is through traditional media or in other places,
like queues. Nevertheless, even though it may be a theoretically obvious
point to make ± that Twitter is a site of legal consciousness ± our relatively
simple point is that this fact has been overlooked by the socio-legal
community.
119
In so doing, we have succumbed to the temptation to see legality
everywhere ± but, as Mezey suggests,
120
if the law is everywhere so much
442
118 Lord Freud, 767 H.L. Deb s., col. 2441 (2 2 December 2015) , at
www.publications.parliament.uk/pa/ld201516/ldhansrd/text/151222-0001.htm>.
119 See the interesting analysis in B. Morgan and D. Kuch, `Radical Transactionalism:
Legal Consciousness, Diverse Economies, and the Sharing Economy' (2015) 42 J.
of Law and Society 556.
120 N. Mezey, `Out of the Ordinary: Law, Power, Culture, and the Commonplace'
(2001) 26 Law & Social Inquiry 145; see, also, K. Levine and V. Mellema,
`Strategizing the Street: How Law Matters in the Lives of Women in the Street-
Level Drug Economy' (2001) 26 Law & Social Inquiry 169; D. Cowan and D.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
that it is nowhere, how can we speak to data which are apparently extra-
legal? For example, the Understater would not describe his role or perception
as `legal', but we have interpreted his data through that lens. That may be
because of the totalizing discourses of legality, the fact that our primary
discipline is law and we consequently `see' legality as being all around us;
121
and/or the instrumental fact that this article is designed in part as a socio-
legal reflection on legality. It may also be a consequence of what Cotterell
regarded as the meaninglessness of the inside-outside demarcation between
law and sociology.
122
However, in drawing on the breadth of the idea of
legality, we have also demonstrated the ways in which our social media users
sought to challenge the right of the law to provide the official account of
their lived realities.
443
Wincott, `Exploring the legal' in Exploring the Legal, eds. D. Cowan and D.
Wincott (2015).
121 For discussion on the almost inevitable subjectivity in interpreting data, see A. Sarat,
`Off to Meet the Wizard: Validity and Reliability in the Search for a Post-empiricist
Sociology of Law' (1990) 15 Law & Social Inquiry 155.
122 R. Cotterell, `Why Must Legal Ideas Be Interpreted Sociologically?' (1998) 25 J. of
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School

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