Bedroom Tax: Pre 1996 claims exemption.

[Update 10/01/2014 - see further post on details of who is 'exempt' and suggested actions.]

Readers may well have seen material going around that suggested that a housing benefit claim that was continuous from pre 1 January 1996 was exempt from the bedroom tax. I have been watching this, but kept quiet because, although the interpretation of the Regulations looked convincing, I didn’t know the Regs well enough to pronounce it to be correct and wanted to see it confirmed or tested first.

Well, it is right and the DWP have confirmed it, in Circular U1 of 2014, reproduced below. Note that the DWP intends to ‘remedy’ the situation. However, I don’t think this could realistically be retrospective, and the DWP don’t suggest it will be, so unless or until the Regs are changed, this exemption applies. Note also the provision on a 4 week interruption, and on claims by successors. And very well done indeed to Peter Barker aka HBanorak on Rightsnet for spotting this when no-one else had. His careful working out is here

(original bulletin)

HB U1/2014 8 January 2014
Contact
Queries about the bulletin in general,
contacthousing.benefitenquiries@dwp.gsi.gov.uk
distribution of this bulletin, contact housing.correspondenceandPQs@dwp.gsi.gov.uk

Who should read

All Housing Benefit (HB) staff

Action For information
Removal of the Spare Room Subsidy

Background

1. The Department for Work and Pensions (DWP) is aware that there are a small number of claimants who may be entitled to have their eligible rent calculated pursuant to paragraph 4(1)(a) of Schedule 3 of the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 (Consequential Provisions Regulations) rather than the provisions which relate to the Removal of the Spare Room Subsidy (RSRS). The Department will however be taking steps to remedy this shortly.

2. For these HB claimants the RSRS should not be applied if they under-occupy their property. Instead their eligible rent must be determined in accordance with regulations 12 and 13 as set out in paragraph 5 of Schedule 3 to the Consequential Provisions Regulations.

3. For claimants to come within paragraph 4(1)(a) of Schedule 3 to the Consequential Provisions Regulations, they must have been continuously entitled to HB since at least 1 January 1996 and occupied the same dwelling since that date, save for any period where a fire, flood, explosion or natural catastrophe has rendered the property uninhabitable.

Breaks in entitlement

4. The provisions outlined above continue to apply if
there has been a break:

in entitlement of no more than 4 weeks

of entitlement of no more than 52 weeks, if the claimant or their partner is a welfare to work beneficiary

5. Note: it may be the case that the transitional protection has been inherited by a claimant and if so they should be treated the same.

Identifying affected claimants

6. Some claimants may already have contacted you about this and requested payment of arrears. However, many claimants will not be aware of this issue. You should therefore consider whether you are reasonably able to identify potentially affected claimants from your own records.

7. However if this situation comes to light local authorities (LAs) should not revise awards unless they are satisfied on the basis of evidence that the claimant satisfies the criteria.

Action to take with immediate effect

8. Once LAs are satisfied that a claimant’s eligible rent should not have been reduced the existing decision must be revised to remove the under-occupancy reduction in the claimant’s HB from 1 April 2013 until the legislation is amended.

9. This means that arrears of HB will be due from 1 April 2013 to the date of reassessment.

10. You should also record details of affected cases so that once the legislation is amended they can be reassessed to reapply the under-occupancy reduction.

Crown Copyright 2014
Recipients may freely reproduce this bulletin.

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Posted in assured-tenancy, Benefits, FLW article, Housing law - All, secure-tenancy and tagged .

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

63 Comments

  1. would an under-occupier who succeeded the tenancy in 2007 be exempt if he has been on HB since 2007, and the person he succeeded the tenancy from was on HB since before 1996? Does anyone have any opinions re this?

    • The relevant provisions are:

      [...]

      (5) A person shall be deemed to fulfil the requirements of sub-paragraphs (1)(a) [the one that leads to exemption] and
      (3), where–
      (a) he occupies the dwelling which he occupied on the relevant date;
      (b) this paragraph applied to the previous beneficiary on the relevant date; and
      (c) the requirements of sub-paragraphs (6) and (7) are satisfied in his case.

      (6) The requirements of this sub-paragraph are that the person was, on the relevant
      date–
      (a) the partner of the previous beneficiary; or
      (b) in a case where the previous beneficiary died on the relevant date, was a
      person to whom sub-paragraph (10)(b), (c) or (d) of regulation 13 (restrictions
      on unreasonable payments), as specified in paragraph 5, applied and for the
      purposes of this sub-paragraph “claimant” in that paragraph of that regulation
      shall be taken to be a reference to the previous beneficiary.

      (7) The requirements of this sub-paragraph are that a claim for housing benefit is
      made within 4 weeks of the relevant date and where such a claim is made it shall be
      treated as having been made on the relevant date.

      So, as far as I can see, means so long as present claimant was a) partner of previous tenant, b) living at the property since before 1 Jan 1996 and c) claims effectively continuous, it should apply.

  2. Thanks for this. The tenancy was succeeded from a parent si it looks like the exemption won’t apply.

    I appreciate you clarifying this.

  3. Hi Giles I am on HB and i pay the bedroom tax. i have been in my house for 32years . My husband past away in 2007 and i think he was on HB in 1996 . How do i go about it . thank you.

    • This is an unusual situation. I’d suggest writing to your Housing Benefit office setting out the history (your husband must have claimed continuously between 1 January 1996 and when he passed away) and saying that you think DWP Circular U1/2014 applies to your claim. Keep a copy of the letter. After that, it depends how they respond.

  4. My mother in law was forced to move in 1999 by her housing association due to them tearing her currrnt house down. She has been continuously on HB since the 1980s. She has been in the same property since then would she be eligible as she was forced to move? She is also disabled

  5. I have lived in my property since 1991i used to live next door in a 1 bed fri 13 1982 now in 3. how would I go about the bedroom tax I have called my LAS Islington and they are claiming no knowledge

  6. hi I been paying room tax on my 3bedroom house I have 2sons and I been struggling to pay £15 week on my son small box bedroom.I been claiming houseing/tax benefits since yr 2003 nd other benefits since 2002 all I awarded is 75% reduction other wise would have to pay full 100% would there be any chance I be on list were I won’t have to pay please help

  7. hi…my mother in law has lived in her house since pre 1996 and in receipt of hb…does she qualify….council says they may not have records that go that far back….

    • Sounds like it. She should make a written request. And if they turn her down on the basis that they don’t have records so can’t be sure, she should appeal. Also ask the landlord, who may have rent records that go back that far.

  8. We have lived in our house since 1983 and we have been on housing benifit since 1996 jan 1st due to husband having ill health are we due for a refund on our bedroom tax thank you for your help

  9. Hi All,

    Looking for a little advice…my Father has been staying in his current property since August 1996 and I am looking to find out if he is exempt from the hated bedroom tax? He is staying in housing association property (Almond Housing) and has been receiving housing benefits since he moved in to this property on the above date. Would this make him exempt from these payments?

    If so them whats the best way to go about receiving a refund?

    Many thanks

  10. hello i have been in my council house befor 1996 & claiming housing benefit has iam on income suport & dissablity iam still in the same house i got married in 04 1996 there have been breaks only has my new husband had to claim for us same house same claimbut in his name our marrige dident last but has i said iam still hear & still claiming housing benefit they say there was 2 breaks but the rent was still paid by them please can u help me iam at my wits end i cant move poor heath sorry about the spelling

    • Cheryl, we can’t give advice on particular situations. You need someone who can go through the history and details with you. You should look for a local advice centre, CAB, or law centre or may be able to help, and do that as quickly as you can.

  11. hi ive been claiming hb for 23 years i was in one property for 8 years and was moved to a larger property as my son n daughter was no long able to share was moved here in 1998 and been here ever since would i have to pay the bedroom tax thanks

    • You won’t come under this exemption, no. Have to have been in the same property since 2 Jan 1996. Also, the exemption is likely to be removed from 3 March this year.

  12. I have lived in my Social Housing Home since 1980 and have been long term unemployed since 1991. Upon my fathers death I became a Joint Tenant with my Mother in 2002 . My Mother passed away in 2013 , would I be entitled to the exemption , even though I was not a joint tenant prior to 1996 ? …Thank You.

  13. Thank you Giles ,
    however I have been in contact with my Local Council and I received a call today whereby they have told me that I do qualify for the exemption uder the 96 regulations and are subsequently contacting my Social Housing provider regarding this. However, they also said that the exemption would only last to the 3rd of March and that they would then look at the D H payment that I am currently receiving and which was due to come to an end at the end of March, once again ?

    P.S …could I please ask one more thing , when my Mother passed away in August 2013 and I became the sole tenant of the property , do you know if I was entitled to an exemption in regard to Bereavement . As I am sure I have read somewhere that a year is granted in such situations? … Thank you .

    • David, that is good news. Though yes, the exemption looks like it will be closed on 3 March.

      Bereavement – depends. My understanding is that it means the bedroom that was occupied by the deceased person won’t be counted as a ‘spare’ bedroom for 12 months.

  14. Hi Giles

    Thanks to your advice my friend who had suceeded the tenancy got his bedroom tax rebate. Thank you so much for all your help. Does the closing of the loophole mean that the 25% will automatically be deducted from his HB again as of 3/3/14?
    I

  15. Hello Giles,
    I have read some very interesting comments/advice on your website, I am in a similar situation & I would appreciate your advice. I have been on continuous H/B since Aug 1987 for a previous 2 bedroom council property, unfortunately that property was subjected to a demolition along with some 400+ properties on the same housing estate apparently the council had spent £17m in an attempt to make good the estate. I was forced to move through no fault of my own to the address that I have resided in since May 1996. (3 bed property I specifically asked the council at the time why were they giving me a 3 bed property when I previously had a 2 I was told then by the council that they liked tenants to have an extra bedroom) I have read the situation that involves force majeure regarding a property being uninhabitable through fire, flood, avalanche I think surely this must apply to a property that was demolished as basically the property is no longer habitable? I have appealed this dreaded bedroom tax on this basis with the L/A housing benefits but they maintain they accept the fact that I was forced to move through no fault of my own but as it was not specifically for a fire, flood ect then I am not exempt from the bedroom tax. Also one bedroom is smaller than 7×7. If a demolished property is included in force majeure is this a permanent exemption from the bedroom tax or is it part of the loop hole that closed in March 2014. Lastly I have health problems that would not make it possible for me to move.

    Thanks

    S Hopkins

    • I’m afraid the regulations are pretty exact ‘only’ fire, flood etc. It is not a general force majeure clause and I don’t think it can be turned into one, so demolition for rebuilding wouldn’t count.

      Even if a house being demolished did fall under the clause, the exemption would have ended in March 2014.

      I’m also afraid that health problems stopping a move aren’t a likely ground for not being subject to the bedroom tax.

      A 49 sq ft room, on the other hand, has been successful in the First Tier Tribunals as a room too small to be a bedroom. See the room size cases on the FTT decisions page (link in the top menu).

      • Hello Giles, Thanks for the prompt response. I thought it was H/B who made the reference force majeure exclusions which appears to be quite a grey area so to speak & with someone as yourself in the legal profession would be more acquainted with the understanding of. I apologise I failed to mention previously due to health problems the property I currently reside at is due to be adapted.

        Thanks again

        • No, it is other people who have called it the force majeure clause, not DWP. There is nothing grey about it, the regulations are very specific. There has been a lot of speculation and hopefulness about that clause, but I can’t agree that it means anything more than exactly what it says.

          And again, I am afraid that, ridiculous though it is, having an adapted property, or one about to be adapted, does not stop the bedroom tax applying.

          • Hello Giles, Thanks again for the info, will keep you updated with progress if that’s alright.

            Thanks again

  16. Hi, we have been living in our house since 1987 and claiming housing benefit and should qualify for the bedroom tax repayment, but as the property belongs to a housing association the council say their records of our housing benefit only date back to 1999 so they will not pay us. The housing association say their records only go back to when they put all their files on computer so they can`t help us either. How can we get proof that we have been on housing benefit since before 1996

  17. Hi Giles,

    Read your article and all of the comments. Very helpful thank you.

    I am trying to help an elderly friend. She is experiencing a forced moved/demolition scenario and I prepared a strong (in my opinion) argument to support her in the Tribunal. However cannot find a lot of information on the ‘closing of the loophole.’

    Is it now the case (As of March) that the pre-1996 exemption can no longer be relied on AT ALL even in the most simple scenario of filling both criteria?

    Thanks

  18. So even though I was exempt and have not moved I’m not now I thought that those claiming after March could not receive it

  19. I have live in this two bedroom property if you can call it a two because the smallest room is only 9ft by 10ft since September 1989 and have been on housing benefit since my daughter my born in 1978 I become ill with a chronic back problem in 1992 and now got arthritis in both knees, I also got trap nerves in the sole of both feet. I now develop fibromyalgia and place on disability benefit. do I come under the bedroom tax exempt

    • You might have done for the period April 2013 to March 2014. But the exemption was abolished in March 2014, so it won’t apply from then. You should ask for repayment for 1 April 2013 to 3 March 2014 but the bedroom tax will apply again from 4 March this year.

  20. I co rented a property with a friend in 1991 she was on permenant housing benefit ,I worked , then I became I’ll in 2000 and claimed housing benifit myself , friend died in 2008 I became sole tenant and still claiming housing benefit ,and pay bedroom tax should I be exempt when I rang council for advice they said they would look into it but never got back would be grateful for advise thanks

  21. I have been in my 2 bedroom since July 1987 paid my rent my self until 8 years ago when I went on benefit
    Can I reclaim the bedroom tax I been paying back

  22. Could you give me any advise I live in a housing ass house and have been a joint tenant since 1991 my friend was caiming housing benefit since 1991 she had ms , I looked after her I myself became I’ll in 2000 and claimed housing benefif since then my friend died 2008 I became sole tenant still claiming housing benefit and pay ing bedroom tax , should I be paying becroom tax , rang council but very unhelpful x

    • Margaret, we can’t really advise on individual cases. But the succession provisions in the exemption apply to “the partner, or family member, or relative” of a person claiming HB from before the start of 1996, so I doubt it would apply to your situation. Plus you haven’t been claiming HB yourself since 1996.

      Also, the exemption stopped on 3 March 2014, so it would only be a backdate from April 2013 to March 2014, not ongoing.

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