Rent restrictions for under-occupancy in social rented sector (bedroom tax)

The eligible rent of a local authority or registered social landlord (RSL) tenant of working age can be restricted if s/he is under occupying her/his home.[1] Whether a claimant is under occupying will depend on her/his household size and composition, and the number of bedrooms that are deemed appropriate for the needs of the household using the criteria below.

A child is treated as part of the household if the claimant is responsible for the child and s/he lives with the claimant. When a child spends equal time in different households the person receiving child benefit is treated as responsible for her/him.[2]

The same rules apply to joint tenancies. The Department for Work and Pensions (DWP) has issued guidance on specific issues relating to the calculation of the bedroom tax for joint tenants.[3]

The Supreme Court has held that the bedroom tax unlawfully discriminated against two claimants who needed an additional bedroom by reason of a disability, the first claimant because she could not share a bedroom with her husband due to her disabilities, and the second claimants because they needed a regular non-resident overnight carer for their grandson who had severe disabilities; however, other disabled claimants and women whose home had been adapted under a sanctuary scheme had their appeal dismissed as in such cases it would be reasonable for a claimant’s individual circumstances to be considered by the local authority under the discretionary housing payments scheme.[4]

The general criteria used to calculate the number of rooms that a household requires is that there must be one bedroom for:[5]

• every adult couple

• every other person aged 16 or over, including a lodger or a resident carer

• any two children aged under 16 of the same gender

• any two children aged under 10 regardless of their gender

• every child who is entitled to the care component of Child Disability Payment at the higher or middle rate and cannot share a bedroom due to their disability. This applies whether the disability is physical or mental[6].

• every child or stepchild in the Armed Forces who will return to the home

• Each member of a couple who is unable to share a bedroom because of a disability. One member of the couple must be in receipt of one or more of:

  • middle or higher rate care component of Disability Living Allowance (DLA)

  • higher rate attendance allowance

  • daily living component of personal independence payment (PIP)

  • armed forces independence payment

  • Adult Disability Payment - this benefit is being rolled out and clients should get specialist benefits advice from Citizens Advice Scotland

Bedroom - an objective test

In Secretary of State for Work and Pensions v Hockley & Anor [7] EWCA Civ 1080, the Court of Appeal held that in order to determine a claimant's bedroom entitlement for the purpose of regulation B13 of the Housing Benefit Regulations 2006 SI 2006/213, the local authority must apply an objective test. Individual characteristics of the actual occupiers of a property are irrelevant. In this case the bedroom in question was only big enough for one person but it was held the claimant was entitled to only one bedroom for her two children as they were under ten. The tribunal found the authority must assess objectively whether a room can be used as a bedroom by any of the categories of persons listed in regulation B13, not how a particular household would use the rooms in a particular property. [8]

Storage of medical or disability-related equipment

An additional room needed for storage of medical/special equipment for a disabled person is not included in the calculation of the rooms allowed.[9]

Capping of bedrooms allowed

Under the social rented sector criteria, the number of bedrooms allowed is not capped at four bedrooms as it is for private sector claimants under the local housing allowance rules.

A maximum of one additional bedroom should be allowed for:[10]

• a foster child, or if the claimant is an approved foster carer who is waiting a placement

• a non-resident carer for a disabled claimant or her/his disabled partner who needs overnight care

• a non-resident carer for a disabled child who needs overnight care

• a non-resident carer for a disabled non-dependant adult who needs overnight care.

Only one additional bedroom is allowed if more than one person in the claimant’s household requires a non-resident overnight carer.

The conditions under which an additional bedroom can be allowed for a non-resident carer are set out in the 'Carers' section below.

An additional bedroom should also be allowed if one of the situations where a claimant can be treated as occupying the home (and thus is eligible for housing benefit) applies:[11]

• before the claimant or her/his partner moves into a new home, for example s/he is waiting for the home to be adapted to meet a disability need (see Payments before moving to a new home for more details)

• where the claimant or her/his partner is temporarily absent, for example s/he is in hospital in Great Britain for up to 52 weeks (see Temporary absences from home for more details).

Where joint tenants are not a couple each joint tenant will be allowed:

• a bedroom [12]

• an additional bedroom where the rules outlined above apply. For example, if the joint tenants each have a disabled child who is in need of a non-resident overnight carer, (subject to the bedrooms being available in the property) [13]

Where the joint tenants are a couple, only one additional bedroom for an overnight carer or a foster child can be included in the number of rooms that a household requires. [14]

An additional bedroom should be allowed if the claimant or her/his partner is an approved foster carer, and:[15]

• has a foster child living with her/him

• is between placements and has fostered a child in the last 12 months

• became an approved foster carer in the last 12 months.

There must be a 'spare bedroom' in the property for an additional bedroom to be allowed. Only one extra bedroom is permitted regardless of the number (or sex) of foster children in the household.

A bedroom is allowed if the claimant, or her/his partner, has a son or daughter or step son or daughter who is in the Armed Forces and:[16]

• is away 'on operations'. This does not necessarily mean on duty outside the UK, it also covers pre-deployment training and post-operation leave (ie 'normalisation'), and

• had been a non-dependant when living at home, and

• intends to return to the claimant's home.

A bedroom for a resident overnight carer living in the claimant’s home should be allowed under the general rules set out above.

An additional bedroom for a non-resident overnight carer should be allowed when it is 'reasonably required' by a:[17]

• disabled claimant or her/his disabled cohabiting partner

• disabled child

• disabled non-dependant adult.

A bedroom will be 'reasonably required' if the non-resident carer 'regularly' stays overnight (this might be when care is provided by a team of carers).[18] Whether a bedroom is 'regularly' used needs to be assessed over a long period, and it is not necessary that a carer stays overnight on the majority of nights.[19]

In order to qualify for an additional bedroom for a non-resident overnight carer:[20]

• the claimant, her/his partner, or non-dependant adult must be in receipt of higher rate attendance allowance, the care component of disability living allowance (DLA) at the highest or middle rate, the daily living component of personal independence payment, or the armed forces independence payment

• a disabled child must be in receipt of the care component of Child Disability Payment at the higher or middle rate

When the above is not satisfied, the local authority has the discretion to allow an additional bedroom if it has been provided with sufficient evidence to be satisfied that overnight care is required.

There must be an actual bedroom available for the carer's use (that is in addition to those used by the occupier(s) of the property).[21]

If parents are separated and share the care of a child, the child will only be considered when calculating the bedroom size of her/his main carer.

The main carer is the person in receipt of child benefit for the child. This means that the housing benefit calculation for the parent who is not in receipt of child benefit will not take the child into account, even if care is shared equally, and if the parents have agreed to share the child benefit.[22] The High Court has held that this rule did not breach the rights under Articles 8 and 14 ECHR of separated parents looking after children under shared care arrangements, mainly because discretionary housing payments were available to make up the shortfall. [23]

A lodger is included when determining the size criteria. [24] Some local authorities have developed lodging schemes to match tenants who will be affected by the bedroom tax with potential lodgers.

The first £20 per week of the rent received from a lodger is disregarded when calculating the claimant's income for housing benefit purposes. If some meals are provided as part of the rental charge, half of any rent above £20 per week will also be disregarded. [25]

Currently, the 'bedroom tax' regime does not exempt properties adapted under a 'sanctuary scheme' to allow for increased security measures where a person at risk of domestic abuse wishes to remain in their own home. Under these rules, occupiers will be deemed as under-occupying their home if it contains a 'sanctuary' room that is in addition to the number of bedrooms required under the size criteria.

In 2016, the Supreme Court held that this does not amount to unlawful discrimination or a breach of the public sector equality duty. However, the European Court of Human Rights (ECHR) has held that applying the ‘bedroom tax’ to survivors of domestic abuse who live in homes adapted under the ‘sanctuary scheme’ is a violation of Article 14 in conjunction with Article 1, Protocol 1 of the European Convention on Human Rights, because:

• there is a conflict between the legitimate aim of the 'bedroom tax' (to incentivise those who under-occupy to move into smaller properties) and the 'sanctuary scheme' (to enable those at serious risk of domestic violence to remain in their own homes safely, should they wish to do so), and

• in the absence of any ‘weighty reasons’ justifying treating occupiers of properties adapted under the 'sanctuary scheme' similarly to other claimants, the impact of the ‘bedroom tax’ on the former group is disproportionate, because it does not correspond with the legitimate aim of the measure.

Since the government’s application to appeal has failed, the ECHR judgment is now final. Until the relevant regulations are amended, it can be used to support challenging housing benefit deductions under the ‘bedroom tax’ regime where the claimant occupies a property adapted under the ‘sanctuary scheme’. [26]

There is no definition of a bedroom in the regulations. The word 'bedroom' should be given its ordinary meaning, and is not limited to a room which is primarily intended for sleeping in. [27]

A social landlord's description of the property will normally be sufficient for deciding the number of bedrooms but is not determinative. Where that description is challenged the housing benefit authority will be required to give reasons why a particular room is designated as a bedroom. A number of factors will have to be considered including:[28]

• room size, configuration and overall dimensions

• access

• lighting, natural and electric

• ventilation

• privacy.

The space standards as set out in the legislation governing overcrowding are not determinative as to whether a room is a bedroom, although as indicated above room size can be factor.

In one case, the Upper Tribunal stated that 'warning bells' should sound if a room had a floor area of less than 50 square feet, even if used for a child. However, the designation of the rooms between, for example, the kitchen, living room and bedroom can be relevant when determining the reasonable use of the property. [29]

However, the Upper Tribunal in another case held that a room of 43 square feet was a bedroom. One reason why size is a factor is because it determines the amount of furniture that can be accommodated in a room, and although it had previously been suggested that a bedroom should be capable of containing both a bedside table and furniture for clothes storage, in this case the room allowed for a chest of drawers which could serve both functions. [30]

Current use or designation of a room does not determine if it should be classed as a bedroom. The Court of Session in Scotland held that the classification and description of a property used as a dwelling is a matter of fact to be determined objectively according to relevant factors such as its size, layout and specification in its vacant state; such classification can only be changed by structural alterations made with the landlord’s consent, and does not change depending on the actual needs of the occupants or how they use the rooms for whatever reason from time to time - this applies even where a bedroom is re-designed as a living room by a social worker for reasons of therapy, privacy and carer support for a disabled claimant. [31]

If a claimant's is under occupying her/his home (ie the number of bedrooms is more than what is deemed appropriate for the needs of her/his household), her/his eligible rent will be reduced by:[32]

• 14 per cent for under-occupation by one bedroom

• 25 per cent for under-occupation by two or more bedrooms.

A claimant can apply for a discretionary housing payment (DHP) to help make up a shortfall as a result of the bedroom tax. The government had made additional funds available, some of which is aimed at disabled people living in accommodation that has been substantially adapted for their needs. [33] For further information see Discretionary housing payments.

Some claimants are exempt from the bedroom tax. The following rules apply.

Claimants of pension credit age

If a claimant or her/his partner has reached the age to qualify for pension credit, s/he will be exempt from the bedroom tax. [34] The state pension calculator on Gov.uk can be used to calculate when a claimant will qualify for pension credit.

Claimants in particular types of accommodation

The bedroom tax will not apply to claimants living in particular types of property. [35]

The bedroom tax will not apply to claimants who live in exempt accommodation, ie supported accommodation provided by an RSL, charity or voluntary organisation, where that organisation or someone acting on their behalf provides the claimant with care, support or supervision.[36]

It will also not apply to tenants who live in:[37]

• shared ownership tenancies

• caravans, mobile homes and houseboats

• tenancies excluded under schedule 2 of the Housing Benefit Regulations 2006

• certain types of temporary accommodation provided to a homeless applicant under Part 7 of the Housing Act 1996, namely:

  - bed and breakfast, hotels and guest houses

  - accommodation where the charges include the rent and the provisions of some meals

  - temporary accommodation leased by the local authority or PRPSH.

Claimants in receipt of housing benefit continuously since 1996

If a claimant has been continuously entitled to, and receiving housing benefit since 1 January 1996, and in most cases has not moved home since that date, then s/he was, for a period, exempt from the bedroom tax. This exemption also applied in some circumstances to successors and to former partners who have continued to live in the accommodation after the original claimant has either died or left.[38]

With effect from 3 March 2014, this category of exemption from the bedroom tax will not apply. However, anyone who was entitled to the exemption but who did not receive it can still apply after this date for their housing benefit to be reviewed, as the legislation removing the exemption is not retrospective.

Where the failure to apply the exemption was a result of official error, there is no time limit for requesting a revision. (HB Circular A1/2014 incorrectly states that a time limit of 13 months applies).[39]

A claimant who is under occupying her/his accommodation will not be subject to a reduction in the eligible rent for a period of:[40]

For further information about the two above categories of claimants who will be protected see the page Protected rates

• 13 weeks, if s/he is a new claimant and had not claimed housing benefit in the previous 52 weeks

• 52 weeks, in the event of the death of a 'linked person'.

Prior to April 2013, the eligible rent of a  tenant of a local authority or a registered social landlord (RSL) - such as a housing association - was normally not restricted. However, if the local authority's housing benefit department considers that an RSL tenant occupies a property larger than s/he needs or pays an unreasonably high rent, [41] it can treat her/him in the same way as a private rented sector tenant and refer her/his rent to a rent officer for determination. This still applies and is most likely to occur where a local authority arranges temporary accommodation with an RSL.  The DWP issued guidance to local authorities on when it is appropriate to refer such rents to a rent officer. [42]

For further information about rent officer's determinations of eligible rents see the page Restrictions on eligible rents: Private sector tenants.

The regulations on bedroom entitlement for disabled claimants were amended on 1 April 2017 [43] after the Supreme Court found the rules to be unlawfully discriminatory against couples who could not share a bedroom due to a disability and children requiring an overnight carer (under the original 'bedroom tax regulations the two groups did not qualify for an extra bedroom), and therefore amounted to a violation of their rights under article 14 read with article 8 of the European Convention on Human Rights (ECHR). [44]

Even though the 2017 amendments were not retrospective, in a subsequent decision the Supreme Court held that public authorities, including local authorities administering housing benefit, and courts and tribunals, have powers to disregard secondary legislation if it is incompatible with the ECHR [45] This may be of relevance to any ongoing challenges to housing benefit decisions predating 1 April 2017, where a reduction was applied in the circumstances described above.