To me, it seems that it depends on whether the answer needs to be exact, or what is typical engineering practice.
For the exact answer, strain compatibility must be considered. The top reinforcing that is below the neutral axis will have a small amount of tension strain, with a correspondingly small tensile force, with a short moment arm. It will change the flexural capacity very slightly, but it will change it.
For negative bending, the reinforcing in the bottom is likely in the compression zone, and would generally would not be included, and could not be included, unless it is properly confined. I see no indication of confinement for those bars, so I think bars in compression could be, and should be, ignored.
Rod Smith, P.E., The artist formerly known as HotRod10