Thursday, 21 February 2013


UPDATE (2) 6 MARCH 2014
A tenant who was born 5 April 1952 or earlier or has a partner of that age is exempt from the reduction. See paragraph 47 of this official guideThey may also qualify for more housing benefit due to their age. They may also be able to claim pension credit and or get more help with their council tax through Council Tax Support.

The loophole in the law which allowed thousands of tenants to escape the excess bedroom reduction has been closed. From 3 March 2014 people who have been in their homes continuously from 1 January 1996 and claimed housing benefit for that entire period will now be subject to the rules. They can still claim a refund of any housing benefit deducted from 1 April to 2 March. That 48 week refund will average nearly £700. But from the week of 3 March 2014 they will be subject to the reduction. Any Discretionary Housing Payment made before the change in the law can kept. The regulations to close the loophole were debated in parliament on 26 February and approved by 304 votes to 253.

The DWP sticks by its estimate that around 5000 tenants were wrongly charged. But the Labour Party has used Freedom of Information requests to get the figures of those affected from every local council in Britain. 209 out of 378 have responded and the total at 5 March was 22,941 implying an eventual total of more than 40,000. The Government disputes those figures saying local councils gave "the numbers of people who might be affected and the numbers of cases they were investigating but the Opposition had added them together". Labour stands by its figures.

Tribunal decisions on housing benefit reductions for excess bedrooms are coming in thick and fast. The 'Nearly Legal' blog keeps an updated list of them here.

The Court of Appeal has rejected a claim by some disabled tenants whose housing benefit was cut. They argued that the law discriminated against them as disabled people and was therefore unlawful. The Court held that it did discriminate but that the discrimination was justifiable and the Secretary of State had fulfilled his obligation to consider that. Read the judgement.

A judge in a First Tier Tribunal in Liverpool has held that the regulation which specifies how many bedrooms are allowed 'pre-supposes that to be classified as a bedroom, a room should be large enough to be appropriate for use as a bedroom by an adult or by two children" The judge also said "that under-occupancy can be seen as the flipside of overcrowding" and "having regard to the legislation governing overcrowding that sets out statutory space standards " "the two disputed rooms are too small to be classified as bedrooms". Read the judgement

The DWP has confirmed that tenants who have claimed some Housing Benefit continuously from 1 January 1996 or earlier and who are have lived in the same property since 1 January 1996 should never have had the excess bedroom reduction made. The officials who drafted the 'bedroom tax' law forgot to include them in it. They can reclaim money deducted back to 1 April 2013. The rules will be changed to include them in future but the DWP seems in no hurry to do that and I understand any change will not be retrospective. It may be changed from April this year. Estimates of how many will be due a refund vary. Unnofficial guidance puts it in the low thousands, perhaps 2000 to 4000 households. Others believe it will be a lot more. The details of the error and action to be taken are set out in DWP Circular HB U1/2014. More here

The DWP has issued an Urgent Circular about what it now calls 'Removal of the Spare Room Subsidy (RSRS)' and recent tribunal decisions. The DWP says it will seek permission to appeal against these decisions. 

Meanwhile it says that overcrowding laws which specify the size of bedrooms are not relevant in assessing what is a bedroom. Nevertheless a bedroom must be "large enough to accommodate at least a single bed". Rooms classified by the landlord as bedrooms cannot be discounted just because they are habitually used for something else such as storage. See

A Tribunal in Scotland has decided that rooms that are too small and rooms used for other essential purposes should be ignored when the 'bedroom tax' is assessed. See 

The High Court held today that the regulations introducing the housing benefit restrictions for people in social housing with more bedrooms than specified for their household did discriminate against disabled people. However, it held that the discrimination was lawful in the case of adults as it was justified. But it held the discrimination was unlawful in the case of disabled children who were unable to share because of their disability. At the moment the rules about the bedrooms needed by children are waived by concession for households with a disabled child, following earlier court action. The Court ordered that regulations to implement that change be made speedily to ensure that there is “no deduction of housing benefit where an extra bedroom is required for children who are unable to share because of their disabilities.” 

Lawyers for the ten families who took the case to the High Court say they will appeal the ruling. The DWP which has already accepted the position regarding children has said regulations will be made. 

At the same time the DWP announced another £35 million to ease the transition to the new rules. Welfare Reform Minister Lord Freud said of the judgement 

"Reform of housing benefit is essential. The removal of the spare room subsidy means proper support for the household remains, but the taxpayer does not pay for people’s extra bedrooms.

DWP release here 
Leigh Day (solicitors for some of the applicants) statement here
Hopkin Murray Beskine (solicitors for some of the applicants) statement here 
The judgement itself

The bedroom tax isn't really a tax. It is a reduction in the help you get with your rent if you have a spare bedroom. The shortest accurate way to describe it is an ‘under-occupation charge' or an 'excess bedroom reduction'. I call it simply ‘the charge’ in this note – or sometimes the bedroom tax.

The charge only applies to tenants of a council or housing association. It does not apply to people who rent from a private landlord. They face separate and different restrictions on the size of their home and the rent they can claim for.

The charge does not apply to people over the age at which women can claim the state pension. When the bedroom tax begins that was around 61y 6m. By April 2014 it will be 62. On 1 April when the new rules start they will not apply to any tenant if they or their partner was born on 5 October 1951 or earlier. People who reach women's state pension after that will no longer have the charge imposed.

The charge applies to England, Scotland, and Wales. It will be introduced at some point in Northern Ireland but may only apply to new tenants not to existing ones.  

Bedroom needs
You are allowed one bedroom for each
  • Single adult – including a boarder or lodger
  • Couple
  • Foster child - subject to certain conditions (this change was announced 12 March) 
  • Child of yours, but
    • Two children of yours under 10 will be expected to share a room and
    • Two children of yours under 16 of the same sex will be expected to share a room
  • A carer or carers from outside if someone in the household needs night-time care every night.
Foster children
In a concession announced on 12 March approved foster parents will be allowed a room for a foster child if they are fostering a child, have fostered one in the last 12 months, or have been approved in the last 12 months. It is not clear yet if the room sharing rules will apply to foster children.

Severely disabled children
Severely disabled children should be allowed a room of their own if their condition makes it unreasonable for another child to share with them. A Court of Appeal judgement on 15 May 2012 decided that to make such children share a room was indirect discrimination on grounds of disability. On 12 March 2013 the Government announced that it would not appeal against the decision so it is now the law and overrides the regulations on the under occupation penalty. The appeal was dropped six days after PM David Cameron told Parliament 'people with severely disabled children are exempt'. They weren't then. They can be now.

Disabled people
If a home has been adapted for a disabled person and there is a spare bedroom used for equipment or other purposes it will NOT be exempt. You will have to apply to the discretionary fund. The Gorry ruling only applies to disabled children. It does not apply to an adult couple who cannot share a room due to a disability. Though it could be used to argue for that. Other cases are pending. 

What is a bedroom?
There is no definition of a bedroom. It is defined in the tenancy agreement and Parliament was told on 11 March the charge "will take account of the number of bedrooms as designated by the landlord. The number of bedrooms within a property is a matter between the landlord and tenant."

Knowsley Housing Trust in north west England has decided to redefine 566 homes from 2 and 3 bedroom to 1 and 2 bedroom so tenants are not subject to the charge. The DWP has told me it intends to make no changes in the law following Knowsley’s action.

The Housing Act 1985 lays down the minimum number of rooms and the size of rooms required before a dwelling is overcrowded. Section 326 specifies that a room of less than 70 sq ft (6.5sq.m.) is not suitable for one person. A Tribunal in Scotland has said that similar Scottish legislation can be used to establish that a room that is too small on these criteria should NOT be counted as a bedroom and should be excluded from the number when the deduction is assessed. See 

A tribunal in Liverpool has made a similar finding and held that the regulations must assume that a room counted as a bedroom is big enough to be one. .

Reduced rent
The charge reduces your eligible rent when your housing benefit is worked out. There are two rates. If you have one extra room the charge is 14% of your eligible rent. If you have two or more extra rooms it is 25% of your eligible rent.

The effect will be that 40,000 lose all their housing benefit and 620,000 lose an average of £15 a week. Almost two thirds of those affected will be disabled or have a disabled partner.

The DWP has told me recently the policy will save an estimated £505 million in 2013/14 and £540 million in 2014/15, slightly more than its initial assessment in 2012.

No move possible
One purpose of the new rule is to encourage people with more bedrooms than they need to move to smaller accommodation. But that will often not be possible as there is a shortage of smaller homes in many areas. Even if no smaller accommodation is available the charge will still be made. And it will still be made even if the council originally allocated the tenant to the accommodation that is now deemed to be too big. For example single people are sometimes put in two bedroom high rise flats because councils would rather not put families with children in them.

Parliament was told on 12 March "There are 249,000 overcrowded households in the social sector, while nearly 1.5 million under-occupy." 

So fewer than half of the 660,000 affected by the under-occupation charge could, even in theory, free up a home for an overcrowded family. 

The Government has promoted a national social housing home swapping service run by organisations such as If a move is possible then an application should be made to the local council for moving costs. It may not be successful.

If a couple separate but continue to live in the same home the DWP tells me they will be counted as two separate adults - that will apply whether they were originally married or civil partnered or not. If they live in separate homes the parent who is the primary carer will get the bedroom allocation. If the parents genuinely share the care of the children then the one who gets the child benefit will get the allocation. If they have more than one child and they each get child benefit for at least one child it is possible they may each get a bedroom allocation for those children.

Grown up children
Once a child of the family reaches 16 he or she can have a room of their own. If they stay in education and normally live in the family home then their room will not be counted as spare. If they go away to study then their room will not be counted as spare for 52 weeks. But if the local council decides that the family home is not the student’s main residence and they will not return there then their room will be counted as spare.

Once they a child leaves education and looks for work or gets a job or claims jobseeker’s allowance then different rules apply. If they still live in the home an amount known as a non-dependant deduction will be taken off the housing benefit. That deduction is between £13.60 and £87.75 a week depending on their income.

If a room is left empty by someone on active military duty it will not be counted as spare and the non-dependant deduction will not apply when they are not living there. This concession was  announced on 12 March 2013.

Normally if a room is left empty it will count as a spare room after 13 weeks. However, if someone dies and that leaves the home with a ‘spare’ room it will not be counted as spare until 12 months after the date of death. 

Shared ownership
Where a home is part rented and part being purchased the charge will not apply.

Recently unemployed
Someone who has recently become unemployed and begun a claim for housing benefit may not have the charge applied for 13 weeks.

Discretionary Housing Payments
People who will suffer hardship as a result of these changes can apply for a payment from the local council’s discretionary housing fund which is being increased by £25 million for this purpose. People with disabled children are expected to be the main group helped. A further £5 million on the discretionary fund to help foster parents was withdrawn on 12 March when the change was made to allow them a room within the rules.

People affected may be able to rent out the spare bedroom if they get permission from their landlord. Any rent received would be counted as income – though the first £20 would be ignored – and that would reduce housing benefit still further and affect other means-tested benefits as well. No tax is due on renting out a spare room unless the rent exceeds £4250 a year (£81.73 a week).

Universal Credit
The introduction of Universal Credit has been very delayed though a very few people are now being put on it. Under-occupation rules will still apply but they are slightly different and the details are not covered in this blogpost. In particular a couple will both have to be over women's state pension age to be exempt from the rule. And the bereavement concession of 12 months will be reduced to three. 

Further information
Housing benefit circular from DWP setting out the new rules

Concession on foster parents and armed forces

DWP Impact Assessments and which includes information on family type and disability

Gorry case – and Burnip and Trengrove

The Housing Act 1985 s.326

Bedroom definition

Overcrowding figures

An updated list of Tribunal decisions is kept on the nearly legal blog

Version 1.65
6 March 2014