Thursday, 12 September 2013


The DWP is seeking leave to appeal against the Fife decisions. In an Urgent Circular, which now calls the policy 'Removal of the Spare Room Subsidy (RSRS)', it tells local authorities that overcrowding laws which specify the size of bedrooms are not relevant in assessing what is a bedroom for the purposes of these benefit reduction rules. It does concede that a bedroom must be "large enough to accommodate at least a single bed". But warns that rooms classified by the landlord as bedrooms cannot be discounted just because they are habitually used for something else such as storage by the tenant. 


The Fife decisions
Four council tenants have had their full housing benefit restored after challenging the definition of 'bedroom' in regulations which reduce housing benefit where a home has more bedrooms than the rules allow.

A judge ruled that a room which was too small to be a bedroom or which was being reasonably used for another essential purpose could not be counted as a bedroom.

The cases are among the first to be decided under the controversial 'bedroom tax' rules which lay down how many bedrooms a household needs. If they have more it reduces the help the tenant gets with their rent. The government calls it ‘ending the spare room subsidy’. It is more accurately referred to using words from the Regulations as the housing benefit excess bedroom reduction. Others call it social rented sector size criteria. But that phrase is of little merit.

The policy began on 1 April 2013 for working age tenants who rent their home from a council or housing association. The rules specify how many bedrooms a household can have - one for an adult or a couple, one for a child aged 16 or more, one for two children under 10, one for two children of the same sex aged 10-15, one for an overnight carer. A foster child and some disabled children can also be allowed their own bedroom.

Those rules are fairly precise. But in contrast the Regulations do not define ‘bedroom’ at all. It is left to the local authorities which pay housing benefit to decide what is or is not a bedroom. DWP guidance - which is not binding - says "It will be up to the landlord to accurately describe the property in line with the actual rent charged". (Housing Benefit and Council Tax Benefit Circular HB/CTB A4/2012 para. 12)

Typically the housing benefit office asks the rent office or the housing association how many bedrooms there are in a property and uses that number to apply the excess bedroom rules. But SG Collins QC sitting as a judge in the Social Entitlement Chamber of the First-Tier Tribunal in Kirkcaldy found that such a procedure was inadequate.

Five appeals by tenants against decisions of Fife Council to reduce their housing benefit were presented to him by solicitor Graham Sutherland of Fife Law Centre. Each of the five was examined on its own facts and in four of them the Tribunal held that a room which had been assessed as a bedroom was in fact not one. It the fifth case the Tribunal ruled that a room used as something other than a bedroom could in fact be counted as one.

Too small
The judge ruled in three cases that a bedroom for an adult had to be at least 70 square feet (6.5 sq. metres) in size. He relied on a law about overcrowding which specified that a room under 70sq ft was inadequate for an adult and between 50 and 70 sq.ft. could only be used by one child under 10 (see Housing (Scotland) Act 1987 s.137). There are similar provisions in England and Wales (Housing Act 1985 s.326). It has never been clear until this judgement whether these rules could be used to define a bedroom in these housing benefit excess bedroom reduction cases.

But Mr Collins was in no doubt "Under-occupancy is the flip side of overcrowding...the disputed room does not properly fall to be classified as a bedroom". He added that a smaller room may be adequate for a carer who occasionally had to stay overnight but not otherwise.

Used for other things
In other cases the judge considered whether the fact the room was used for something else other than as a bedroom meant it could not be counted a one.

Here he laid down clear rules. First that there was 'a well established alternative use of the room' and 'that alternative use is in reality not a matter of choice for the occupant but reasonably required for their continued occupation of the property as their home'.

In one case the Judge ruled that using a room to store gardening equipment such as a strimmer was not reasonable as it could be stored outside in a small shed. The tenant lost his appeal.

In another case he decided that a downstairs room which was the only available space for a wheelchair was a reasonable use and restored the tenant's benefit. And in a third case - which was won by the blind tenant because she was in fact exempt from the rules - he considered that a Braille machine, computer and other equipment to do with her disability may have been a reasonable use of a spare room but he needed more evidence.

Future guidance
The decision of a First-Tier Tribunal is not binding on other cases. But these judgments set down general principles that other lawyers and at least one QC agree with. Because 'bedroom' is not defined in the Regulations, a council which decides on Housing Benefit cannot just rely on a statement from the landlord that the property has a certain number of bedrooms. Each case must be examined on the particular facts to check that a particular room is suitable as a bedroom and, if it is, to consider if it is being reasonably used for something else.

Only if it is physically suitable and is not reasonably being used for something else can it be counted as a bedroom.

Tenants whose housing benefit has been reduced on the grounds they have excess bedrooms could consider if they could appeal on similar grounds to those accepted by Mr Collins’s Tribunal. To do so they may need help either from the local Citizens Advice office or a Law Centre if there is one.

Govan Law Centre has a guide to help tenants challenge the housing benefit excess bedroom reductions

Government response
The Department for Work and Pensions says that it is looking into these decisions but they do not alter its policy which is to prevent housing benefit from being paid for a spare bedroom in social housing. That policy is part of its attempts to reduce the £24 billion a year housing benefit bill. It will also help make better use of the available housing stock by encouraging people with spare rooms to move to a smaller property.

The DWP also says it has provided £65 million this year for local councils to support vulnerable residents who are affected by this policy. Tenants can apply to their local authority for a Discretionary Housing Payment to cover the shortfall caused by an excess bedroom reduction. They may not get it.

More information
For my earlier guide to the bedroom tax see

Is 'Bedroom Tax' a Tax?

And Government attempts to rename 'bedroom tax' 'ending the spare room subsidy'