Room without review: Thoughts on tackling the bedroom tax

With the beginning of the bedroom tax looming up for April and upwards of 700,000 households affected, I’ve been thinking about the position when the inevitable rent arrears possessions start to appear – probably by about October – and also whether the statute itself is open to challenge.

A quick reminder – from April all working age social housing tenants (and from October 2013 some pensioners, when both members of a couple will need to be over state pension age to escape) will see a deduction of 14% of rent from their housing benefit (not 14% of housing benefit) if they are deemed to have one surplus bedroom, 25% for two. The DWP Circular on the Regulations is here. There are no ‘dispensations’ for bedroom entitlement beyond the basic allocation of one bedroom for:

  • An adult couple
  • Other adults aged 16 or over
  • Two children of the same sex aged under 16
  • Two children aged under 10 regardless of gender
  • Any other child under sixteen
  • A non-resident carer who occasionally stays the night

The DWP has suggested that Discretionary Housing Payments should be used in difficult circumstances. However. the DHP fund has had an increase of £30 million, while the ‘expected saving’ to housing benefit is some £500 million, suggesting that only one in sixteen affected might be helped by DHP. Further, the DHP boost is for a year and not ring-fenced.

There is no definition of a bedroom in the regulations. What constitutes a bedroom has effectively been left up to social landlords.

Rather belatedly, the main news media have caught on and it is stories of those needing an extra bedroom for reasons of disability, or where children stay between two parents (of whom only one will get the bedroom allowance), that have made headlines. (Here and here for example).

The DWP have acknowledged that only a proportion of those affected will be able to ‘downsize’. In many areas, particularly in the north, social housing providers state that they have very few one bed properties, so those looking to downsize will either be frustrated, or forced into the private sector, ironically increasing the housing benefit bill. (For posts on the effect of the bedroom tax on Housing Benefit, see here and here).

So, what everyone in the sector is expecting is a significant increase in people in rent arrears, unable to downsize but unable to make up the shortfall from subsistence benefits. It is also worth noting that the DWP minister, Steve Webb, has repeatedly suggested that ‘two or three hours’ extra work, for those in work, would be enough to cover the bedroom tax shortfall. This, idiotically, takes no account of the deductions in HB for additional work. The actual picture is set out here – with an example of someone on 16 hours at minimum wage would need to work not two or three hours more but 32 hours, just to escape the £14 deduction.

While landlords are giving priority transfers to those affected seeking to downsize, (and thereby completely clogging up transfers for the foreseeable future), there simply won’t be enough smaller properties. In addition, there are many who will not consider that they are able to downsize. For a survey of the make up of households affected, see Hilary Burkitt’s research, which we’ll return to.

While social landlords are struggling to see how they can cope with the situation, it seems inevitable that there will be a significant increase in rent arrears possession cases, with arrears largely or wholly due to the bedroom tax deductions from housing benefit. The first swathe could be expected from October 2013 onwards.

With this slow motion disaster in mind, I’ve been thinking about possible challenges to the bedroom tax, whether to the regulations per se, or to the implementation of them by local authorities and social landlords. These are sketchy thoughts, nothing more, and hopefully there will be other grounds for challenge and/or defence brought forward.

Challenge to the regulations.

I have heard of a challenge at early stages in Scotland (also affected by the bedroom tax) based upon the difference between the 14% deduction and the actual difference in rent between a 3 bed and a 2 bed property. The challenge is by the tenant, apparently supported (and funded) by the landlord. I have no further details. This is potentially interesting, as given that the DWP have acknowledged that a large number of those affected will not be able to downsize, it would be tricky for the Government to argue that the 14% is in effect a penalty for not moving or incentive to move. There has to be a connection to rent. That said, the DWP’s announced method for arriving at the 14% for one bedroom is claimed to be “broadly based upon rent differentials for new lettings in a typical local authority area” (See the EIA here at page 2). Clearly, any percentage deduction reached would have to involve some degree of averaging, and therefore there would always be relative winners and losers. A simple challenge that the rent differential in one set of circumstances was lower than 14% doesn’t strike me as in itself a strong ground. However, a challenge to the 14% (and 25%) as being based on inadequate research, a bad evidence base, or unjustified assumptions might have stronger grounds. I’m very interested to hear more about this challenge if anybody knows details.

The other challenge that springs to mind is based upon Burnip v Birmingham CC, Trengove v Walsall MBC, and Gorry v Wiltshire C [2012] EWCA Civ 629 (Our report here). In Burnip, the private sector housing benefit bedroom rules were found by the Court of Appeal to be discriminatory against those who needed an extra bedroom for a carer or because their children could not share a room as a result of disability on Article 14 grounds. As Hilary Burkitt’s research has made clear (albeit from a limited sample, though the same size as the DWP’s), some 72% of affected households had a member who is disabled or suffers from a major health concern. No specific exemptions are made in the regulations for disability requiring an extra room, save for a provision for carers staying overnight. The finding in Mr Gorry’s case might be particularly relevant here. The key points from Burnip would be that the shortfall was discriminatory because a) their HB was based on one room less than their objective needs, and b) – breaking new ground – drawing on Thlimmenos v Greece (2001) 31 EHRR 15, the right is also violated “when states without an objective and reasonable justification fail to treat differently persons whose situations are significantly different”.

It is also worth noting Henderson J’s points about DHP and disability benefits – quoting Dave in our Burnip report

‘(a) incapacity benefit and DLA are designed to meet ordinary living expenses and not intended to meet housing needs – that is HB – so, it would be wrong in principle to regard “those subsistence benefits as being notionally available to him to go towards meeting the shortfall between his housing- related benefits and the rent he had to pay” ([45]); (b) discretionary housing benefit payments were not a complete or satisfactory answer to the problem that he needed two bedrooms but was assessed on the basis of one bedroom only because they are (i) discretionary, (ii) payable from a capped fund; (iii) could not be relied on to meet the difference between one/two bedroom rates; and (c) the difficulty in finding suitable accommodation and the probable need for adaptations mean that it is likely to require a long-term commitment for which there was a need for “… a reasonable degree of assurance that he will be able to pay the rent for the foreseeable future, and that he will not be left at the mercy of short term fluctuations in the amount of his housing-related benefits”’

I have heard a whisper that a Burnip style challenge is being prepared. I know nothing more. Burnip is due to be heard by the Supreme Court, which may change everything.

[11/02/13 – it has been pointed out to me that para 9 of the DWP Circular noted above suggests people in a ‘Gorry’ situation, with a severely disabled child unable to share a room, may have a bedroom tax exemption on an individual case basis, following the Court of Appeal decision. However, this does not address other arguably similar situations, for example an adult couple unable to share a bedroom through disability]

Challenges to implementation/defences in the County Court

The difficulty with the bedroom tax is that it renders the usual defences, or arguments, in arrears possession cases redundant. If arrears are wholly bedroom tax related, then there is no possibility of recovering benefits (though that will be outside the scope of legal aid funding from April 2013) or arguing for an adjournment or suspension on terms. There will be no realistic prospect of rent plus £X per week to arrears being viable. The general prospect is frankly that arrears will rise. For that reason, an article 8 defence will also be of little use.

Any defence must therefore be on the basis that the implementation of the bedroom tax is wrong in that case, and this will most likely take the form of a public law defence.

One option might be whether the bedroom is actually a bedroom. As noted above, the statute and regulations have left the definition of a bedroom up to social landlords. I don’t know of any social landlord conducting a review of its properties.

While the bedroom tax statute is silent on what constitutes a bedroom, there is plenty of statute that could provide a definition, e.g  Part X Housing Act 1985 – the statutory overcrowding provisions:

  • more than 110 sq feet (10.2 sq metres approx) = 2 people
  • 90 – 109 sq ft (8.4 – 10.2 sq m approx) = 1.5 people
  • 70 – 89 sq ft (6.5 – 8.4 sq m approx) = 1 person
  • 50 – 69 sq ft (4.6 – 6.5 sq m approx) = 0.5 people.
  • Less that 50 sq ft = not suitable as sleeping accommodation

Then there are the HMO regulations, Housing Act 2004, which sets a minimum of 6.5 sq m as a bedroom where there is a communal living room (or 10 sq m where there isn’t.)

Some local authorities also have their own HMO licensing standards, which set minimum bedroom sizes.

Arguably, any or all of these would be of relevance to whether what is identified in the tenancy agreement as a bedroom is lawfully so-called, and thus whether the bedroom tax should apply.

Another possible route, for adapted homes, is whether a bedroom is lawfully identified as such where it cannot practically be used as a bedroom. Some properties adapted for disabled use have former bedrooms adapted for other purposes, such that they could not be used as a bedroom at all by the tenant’s household. Where the landlord has carried out the adaptations, can the landlord then rely on the description of number of bedrooms in the tenancy agreement for the purposes of the bedroom tax, or is there an effective duty to review and revise that description?

These would only be even possible defences in specific cases, where the facts were right, of course. Assuming that they would actually run. If successful, though, they should result in the bedroom tax being removed for the bedroom or bedrooms at issue, potentially retrospectively.

(Tenantive) Conclusions

These are only some initial thoughts and barely worked through. And it is likely that challenges to the bedroom tax will be a matter of nibbling at the edges, of finding specific circumstances that, in one way or another might be discriminatory in breach of Article 14, or a public law defence issue, or possibly an equality duty issue. Even a successful Art 14 discrimination challenge would only mean a limited incompatibility (and we know how long those can wait to be corrected).

Any other thoughts on potential challenge and defences are welcome.

If there are potential challenges that go to the heart of the bedroom tax, for example on the means by which the percentage reductions were arrived at, then I would be very interested to hear of them.

[Update 4 March 2013: A JR of the bedroom tax regulations has been issued on 1 March 2013. See here. ]

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.


  1. Celia Ralph

    How does it effect a tenant before 1989, an secure tenancy as to a assured tenancy has so rights having an agreement that their home is protected.
    How will they be effected by the bed room tax?

    • NL

      I’m not sure I understand your point. This is a matter of housing benefit payable. It does not affect tenure for secure or assured tenants of social landlord. It will, however, affect the amount of housing benefit that some secure and assured tenants receive.

      If you mean an assured tenant of a private landlord, that is an issue of LHA, which has another, different, calculation of bedroom need and assessment of rent. See here: http://www.twitlonger.com/show/ktudgb

  2. Greg Robbins

    One other possible defence which also has ramifications for those seeking to move – some of the old LCC blocks in London have rooms which are only accessible from the living room and not the hallway. Some of our properties are being converted to create a fire exit through the living room (not satisfactory in every case) but in other cases it is generally arguable that the offending room is a ‘dead room’ and should not count as a bed room. Different advice is given by housing officers depending on who they are trying to fob off, of course, but this could be another possible defence. [In our case the advice from the Fire Brigade seems clear that the rooms cannot be let as bedrooms.]

    In the case of other RSLs (I’m generally talking co-ops) there is an awareness that there does not appear to be a bar on reclassifying rooms as work rooms or dining rooms, though this complicates ‘target rents’ and some consternation about houses which had had large bedrooms which were separated to make a larger number of small rooms for children in the past. (ie in some cases properties were reclassified as larger during the current tenancy.)

    • shirley frost

      In one sentence you dismiss the feasibility of advancing Human Rights arguments without saying why. Why?
      And what about the the question of proportionality expounded in the Pinnock v. Manchester City Council case in 2010. instead of looking for tricky dicky arguments why cant we just say its wong because its not reasonable to put tenant inthe position where they cannot pay the rent demanded because of the imposition of an ill thought out government policy.

    • NL


      If this is directed at me, I didn’t dismiss the feasibility of Human Rights arguments at all. I said I thought that a challenge on Article 14 ECHR grounds was likely – and so indeed it has happened, with some 10 Judicial Reviews on that ground underway.

      Proportionality is only a defence to possession proceedings, and, unless the landlord had used ground 8, would not be available in rent arrears possession cases, as the court would already have to consider whether it was reasonable to grant a possession order.

      It is not a question of ‘tricky dicky’ arguments. It is about what is available in law. And you can certainly say it is wrong to put the tenant in that position, but that is a political argument, not a legal one, no matter how much I’d agree with you. A challenge to a statute based on the fact that it puts people receiving the benefit in general in a bloody awful position is just not going to work, or pretty much every statute brought in by the current (and previous) Government would be open to challenge.

    • sue

      Hi, NL, what are your thoughts on creative challenges to Housing Associations on the basis that they are a public body with general statutory duties? I was thinking of the Weaver judgment and if something could be argued re. HAs passing on recent rent increases for April to disabled tenants ( as defined by Equality Act) thus making that tenant’s predicament worse under the bedroom tax. I know they argue that it is not their responsibility but surely they are in some way engaged in passing on the impact of legislation and have a duty to protect and not to disadvantage the vulnerable? It is within their remit to reduce rents, perhaps not based on room size, but they are loathe to do so for obvious reasons.

    • hw

      Hi I’m a tenant of a RSL and will be affected by the bedroom tax because I live in what is regarded as a 3 bedroom. The properties upstairs are exactly the same size but because a partition wall was not erected in 1 of the bedrooms they are classed as 2 bedrooms. Is this legal or could I contest it

    • NL

      We can’t offer advice on people’s specific issues through the blog, I’m afraid. But if it was let to you as a three bedroom… It isn’t abut the size of rooms, (apart from possibly the minimum room size challenges I mentioned in the post).

  3. TSHO

    there are also, of course, the consequences on local authorities from the subsequent homeless applications which are likely to follow when the arrears lead to evictions.
    Any intentional homelessness decision (if it was made) would be vulnerable to review if the only reason for the arrears was the bedroom tax deduction, and therefore an acceptance of homelessness duty would follow.
    The cost of temporary accommodation would increase the HB bill for those families, as would any discharge into the private sector.

    Authorities may even consider using prevention funds to meet the difference, if this were to be a saving overall.

    • NL

      I agree on intentionality. No doubt some LAs will try that on, but it has to be a straightfoward affordability issue. I was going to put something in the post about that, but it was getting quite long already.

      But the issue with prevention funds is the same as DHP – limited and temporary. At best a sticking plaster on a long term wound.

  4. Tom (iow)

    It’s staggering that there’s nothing in the regulations defining what a bedroom is.

    I’ve seen a few potential arguments that a landlord’s description will not be conclusive, and that a tenant could argue that a spare room not used for sleeping is not a bedroom. There is no HB reduction prescribed for having other types of spare room.

  5. Rentergirl

    What about the situation when the need might immanently change? Such as when two opposite gender children of 15 have room each, as they approach their 16 birthday and will be entitled to room each? Couple months way from pension age? etc…

    • NL

      Well, the prospect is better as the deductions will cease to apply. Limited, or finite arrears sugesting a realistic prospect of later reduction. Strong argument for DHP in the interim.

  6. Bill Heywood

    I’m not sure the discussion about “what is a bedroom” is going to get tenants very far. The key issue is not about rooms, it is about the rent charged for the property. If a landlord wants to reclassify a 4 bedroom house as a 1 bedroom house with a study, library and billiard room then it is free to do so. However, the Housing Benefit department dealing with any claim for that property would only be willing to pay a reasonable rent for a 1 bedroom property. The landlord would either have to reduce the rent to that of a 1 bedroom property or the tenant would still face a shortfall in rent. It is safe to say that in very few cases will a landlord’s long term business plan be viable if it forgoes large amounts of rent.
    The other issue is one of contract, the tenant has taken the property in full knowledge of the rooms and space available and agreed to pay a certain rent (plus any contractual increases). It is very unlikely that the contract includes any assurance that Housing Benefit will be available to pay the rent in full. It is therefore very hard to see how a tenant can arguet that they don’t owe the rent due because of a change in the law/regulations that are entirely outside the landlord’s control.

    • NL

      Bill, I think that is missing the point slightly. The regs leave the classification of a bedroom, for the purposes of the deduction, to the landlords. If the landlord has classified a room as a bedroom that is not capable of being a bedroom under other statute, then it is arguably the landlord’s problem. It is not about the tenant not owing the rent, it is about the landlord unlawfully setting and demanding it, to the extent that the rent is predicated on the number of bedrooms on the one hand, and the HB deduction not applying on the other.

      You will note that I did not say this was a solution for landlords and tenants. I said it was an idea for a potential defence for a tenant facing possession proceedings.

    • Bill Heywood

      There may be some scope in those few cases where a purported “bedroom” is so small as to not meet one of the statutory definitions. But in practice how many of the “spare bedrooms” do we think are less than 50 sq feet? In these cases I suppose you could try and argue a breach of contract, or misrepresentation.

      My key point is that any attempt to call a bedroom by a different name by l/lord & tenant won’t wash with HB unless the rent is reduced.

      We have 3 bed houses with and without a “parlour” but even those with the parlour have a lower rent than a 4 bedroom house. If we reclassified a bedroom in a 4 bed house as a “parlour” the rent would have to be reduced to the 3 bedroom rate.

      Multiply these reductions across your stock over a 30 year business plan and it will create a blackhole which will hurt services to tenants.

      There would also be the danger that HB would question why they have previously been paying for a larger property type and ask for the difference back as an overpayment.

    • NL


      Yes, it is a limited prospect – and you will note I have not said it is open to the tenant to redefine the room. I think a minimum of 6.5 sq m rather than 5 sq m is strongly arguable, though.

      And yes, it would hurt the LL’s rent income. This is why I flagged it as a tenant’s defence to possession proceedings, not a challenge to the bedroom tax as a whole.

    • Tom (iow)

      Bill, under regulation 12B of the HB regs 2006, the eligible HB for a social tenancy is the actual rent liability. I can’t see any provision that currently limits it per bedroom, as with private tenancies.

      This wil be amended to implement the 14% and 25% deductions, and there will also be a catch-all provision permitting councils to limit the HB to a reasonable level, but I can’t see that it’s as clear-cut as you’re saying – there is no automatic ‘per bedroom’ rate.

    • Greg Robbins

      Whether it is open to landlords to just change what they call a bedroom depends on whether they are regulated as a social landlord. If they are then they are affected by the target rent regime, so would be expected to drop the rent if they change the designation of a room. I don’t know how the HB rules apply in private properties, though I presume the landlord could call the rooms whatever they liked without changing the rent due. The tenant would hardly complain,

    • NL

      LHA awards an allowable rent based on bedrooms needed. What the tenant can get for that rent depends on what they can find… And yes, my idea for a defence would very likely have to result in a rent reduction by the LL.

  7. Bill Heywood

    Having said all that about “bedrooms” I do think there is more scope to attack the legislation and regulations on the basis of discrimination. From the work I’ve done with tenants I know that a large proportion are disabled. I would go so far as to say that the disabled will be disproportionately affected by the bedroom tax.
    As there is no scope in the HB regulations to exempt people on the basis of disability, I think that a Burnip style challenge will have legs. Sadly, even a success here will only spare a minority of those affected.

    • sue

      Hi bill; the DWP’s own equality impact assessment clearly states that a higher number of disabled tenants are affected. To exempt those in receipt of DLA would lose 300 million off the projected saving of 500 million. But, if you factor in all the ways this could cost more money, the exemptions look like a good idea. Except then it wouldn’t be worth having the bedroom tax just to save the remaining 200 million so hopefully it would get shelved. Bear in mind that 500 million is 2% of the HB bill; hardly worth all the hassle, money, and human misery it’s going to cost. Get rid before it starts, that’s what the advisors should be saying, just on the economic shambles if nothing else.

    • NL

      Sue, I’m sure every advisor is saying that. But that won’t help us in court…

    • Nathan Roberts

      Judicial Review against against both the SOS and the local authority, the legality of the legislation itself and of course, a decision or the decision(s) of the local authority itself.

      Wouldn’t it be both parties as respondent’s?

    • NL

      How on earth could you JR the local authority for simply following statutory regulations? And in any event the SoS has not (yet) said that DLA should be used to top up rent. The Burnip point would simply be that that argument would not be available to Govt or LA id they tried to make it.

    • Nathan Roberts

      Because it is the decision of the local authority in following that secondary legislation to make the actual award, it is the body responsible for making the award of HB. Along that way, regardless of whether it is following secondary legislation or not, it may be in breach of a number of primary Act’s of parliament or higher authorities. Both parties maybe subject to JR.

    • NL

      Any JR would have to include the SoS. But in any event, point still stands. The Councils are not saying DLA must to used to top up rent.

    • Nathan Roberts

      Yes, sorry I should of said I was thinking more in the line of the DHP, as this is what it is that I have applied for in advance for my relative, and yes I note that is nothing to do with the new regulations, but I note the burnip case re dla. But, that said, it would be the same local authority that implements the new regs and makes the decision to award the new lower hb award in line with the new regs, so i am not sure from my layman view whether or not it would hurt including both parties and all issues in one JR action.

      Clearly it would be unfair to include dla and other income related benefits that are intended and designed to be used for the specific purposes resulting from disability and illness. If it did, the government may aswell be saying not only are they capping benefits, not increasing them this year in line with inflation, but they are effectively reducing income related benefits between 14 and 25 % (don’t quote me on the figures) when it had already been determined that those applicable amounts to claimant’s particular circumstances was the minimum in which “the law says you need to live on” a bit contradictory…..

  8. frednach

    Aside from the inequitable points highlighted above including adverse indirect discrimination of the propsed changes. I believe tenant’s should be able to usurp the small matter of asking their social landlords permission for sub-let, that should help with the household budgetary constraints subject to endorsement by the tenant- I understand landlords cannot unreasonably deny permission particularly as tenants are after all are meeting demands and social needs. This move will help tenants from being effectively forced out of their homes and avoid all the stress and strains that goes with it.

    One other issue to consider is that in the event that tenants are given possession notice this should be challenged on suitability, as landlords have to show grounds for possession and depending on this convince the court that their actions are either reasonable and or reasonable/ suitable to the needs of each tenant which includes factors like work, schooling, health, education provisions, access to facilities and so on. If families are made homeless, this is going to cost substantially more to house the in expensive interim accommodation and then permanent one years later usurping huge costs t the taxpayer.

    Moreover, in one interview on a radio show a caller made the valid point that simply downsizing is not a solution not an answer, particularly on ecomonic or social grounds as rental costs vary widely across a region as well as a borough, thus moving a tenant from two beds to one beds property in another part of town could result in counci’s paying a higher amount of HB than they would have otherwise.

    • NL

      Many social tenancies have permission for a lodger already. If not, I agree. But realistically, that is not suitable for many.

      I’m afraid suitability is not an issue in these possession proceedings. Reasonableness of making an order is (unless possession is sought under ground 8 and there may be RSLs who will do that). If grounds for possession are rent arrears and there is no realistic prospect of the arrears being reduced, or even frozen, then it would be hard to argue that a possession order would not be reasonable.

      It is unlikely that social tenancy rents would vary from one part of a borough/Council area to another in the way you suggest. But tenants downsizing from social to private properties would increase the HB bill over all.

  9. Chris W

    As a carer looking after my very disabled wife who has dementia and extreme mobility problems we have not shared the same bedroom for over 7 years. This is due to many medical reasons. Incontinence amonst some of them and due to the odours that this problem can cause I see it as a kick in the face if I am made to move back into the same bedroom as my wife, which she is also very opposed to.

    Surely this problem alone is something which can be challenged and a court would consider that it would be against the mental health and wellbeing of my wife. She believes that she is no longer married to me but accepts that I am her carer. In this situation on whose side would the law stand?

    As for bedrooms, I have one which measures less than 70sq ft and is very small. The bedroom door will not open fully when a single bed is in place. My property is a HA property and my contract does not state anything about how many bedrooms and/or sizes. Do I have any legal challenge on either or both points? Disability or bedroom size?

    • NL

      We can’t advise on individual cases, I’m afraid. There is also the difficulty over who can be challenged about what. Whether something can be described as a bedroom would be an issue with your landlord, while whether the HB regulations took into account the need for an extra bedroom would be a challenge to the DWP and Government.

  10. Nathan Roberts

    Ironically I have come across these comments today after having took a stab (so to speak) at trying to persuade my mother’s local authority HB dept to award DHP, quoting the Equality Act, Article 14 ECHR, the burnip case, and the human rights Act. Essentially saying that both the EA provisions and Article 14 will overide the secondary legislation as otherwise, the local authority will be in breach of Section 6 (1) HRA.

    I’ve noted that the HRA only gives an exemption if the local authority
    could not have acted any differently as a result of primary legislation; this is not primary legislation.

    I can only envisage that it will treat DHP application in order of priorities which were not previously established under the current system, meaning that most if not all none priority traditional applications for DHP will not be honoured.

    Not legally qualified, but that is my geuss.

    Either way, this government are good at making a mess! and as featured above, a mess which results in further expenditure and not less….

    • NL

      Nathan, we can’t give legal advice to individuals via the blog, but I think you’ve gone down a bit of a wrong alley on the HRA and the way it works. Also DHP is a separate issue to the bedroom tax regulations.

    • sue

      I agree DHPs are a separate issue to some extent but the fact that the government are relying on them to mitigate and justify the effects of the bedroom tax brings them centre stage. In the new guidance for DHP decision makers they are told that they can use discretion about ‘whether or not’ to count disability benefits as available for rent. In fact. DLA is not meant to be considered when calculating HB and DHP so this is confusing. Similarly confusing is the guidance for housing benefit depts in circular A6/2012 on the DWP website which acknowledges the Burnip appeal and suggests that awards are ‘suspended’ in cases affected by the ruling. Surely until the outcome of the Appeal is known the rulings in Burnip stand? I’m thinking specifically of the need for a bedroom for a disabled child. Getting back to DHPs though they have devolved the decision to local level about who to award to even though they have also said an amount is ‘targeted’ to foster carers and those with wheelchair adaptations. Local councils so far seem quite confused about whether targeting is really any different to ring-fencing and they are being left open to judicial review on this. I think any challenge has to focus on the fact that the government have not made proper adjustments for sick and disabled people; not in terms of the objective need for space per se, but that a policy which relies upon behavioural change cannot be imposed upon those who cannot effect such change due to being ‘exempted’ from work and that a financial penalty on a protected group is not proportionate to the aims of the measure. What this means legally I don’t know; I’m not a lawyer but I also know they are peddling nonsense about the ‘average’ amount lost in benefit. I know of people who will lose over £30 per week, any average also has to take account of this massive disparity in the amount some people will have to find out of subsistence benefits.

  11. anonymous

    I think some of the comments in either the Burnip or Gorry case specifically say that DLA is not designed for ‘topping’ up rent but to assist in coping with disability. I wonder which will be the first Local Authority to be challenged via JR on this issue. Should be interesting, particularly in light of the DWP guidance.

    • sue

      Absolutely; the judgment also said that DHPs were not adequate means to cover rent shortfall for disabled people. So, if DLA isn’t meant to be counted and DHPs are inadequate the question is where does the tenant get the money from? I think these issues are far more wide-ranging than arguments about objective need for space as they get right down to the black hole at the centre of this policy, which is the total lack of real economic protection for ‘vulnerable’ groups.

    • NL

      That is all true, but unless or until these provisions are amended or repealed, that is not going to help us in court for our clients…

    • NL

      It can’t be a JR against local authorities. The regulations are Govt, not LA. And the HB deductions do not ‘require’ the shortfall to be paid by DLA, for all that in practice it might have to be. The point of Burnip on this issue is that it is not an adequate response to say that rent could be paid from DLA.

  12. Anon

    Actually, the point is that LA’s can be judicially reviewed for the manner in which they apply the DHP policy, either their own policy or the DWP policy if they fail to follow the usual rules about natural justice, unreasonableness etc. I know of one local authority that have already stated they will count DLA and I think the judgement in burnip gorry and trengrove will assist in formulating an argument that LA’s should not be taking DLA into account when assessing eligibility for DHP’s.

    • NL

      Yes, of course, but that wouldn’t be the challenge to the regs on the basis of DLA being taken into account, it would be a standard JR of LA policy/procedure/decision being unlawful. And taking DLA into account when considering DHP, which is what is happening in your council, would certainly be JR’able. But that is an exercise of discretion outside the bedroom tax regs.

    • Anon

      Sorry to confuse, but I think Sue and I were both considering JR of LH re: DHP’s.
      On the other point I think there is a challenge for some residents who have a room less than the 50 sq ft. If the Housing Act states 50 sq feet or less is not a bedroom then I cannot see why that is not the definition that will be used for the HB under occupancy reduction. It will be interesting to see whether HA’s and LA’s redefine their properties as 2 bedroom where the 3rd bedroom is less than 50 sq ft. The grey area is going to be where the bedroom is between 50 and 70 sq feet and comes within the half bedroom remit. That is another issue that will end up at a benefit Tribunal, and probably at Ct of A via the UT on the way!

    • NL

      Ah, sorry. A touch of cross purposes.

      I think the room size issue could also be a public law defence in possession proceedings rather than winding it’s way through the tribunals. I think the ‘half bedroom’ should arguably fall outside ‘bedroom’.

  13. Colin Lunt

    Just a thought on tactics in parallel to the bedroom tax would be for tenants immediately on receiving a deduction letter for them to make homelessness applications on the basis of no longer reasonable to remain due to rent shortfall which would then involve the LA have to do a financial assessment and perhaps intentionality test. Of course there is the change to the homeless regs with offers of private accommodation but there is also the suitability test for those offers. As has been noted here previously there are a range of issues to consider with those regs. LA officers must be looking at these changes with horror.

    • NL

      Colin, that is technically possible, yes, but the homelessness route is frankly not an appealing option unless driven by necessity.

  14. Matthew Nolan

    How is discrimination interpreted by the law and housing. I have HIV and there are laws on discrimination to protect people with HIV. People that live with HIV can because of stigma and discrimination take a long time to feel safe and welcomed into a community that understand and accept them. Having to downsize from an under-occupied property to potentially move to a different area because housing is unavailable in the community you have become established in could reawaken the discrimination that people with HIV have struggled to remove already.

    • NL

      Matthew, we can’t advise on individual circumstances via the blog, I’m afraid. But that said, I think that would be an extremely difficult case to make out, as the disability is not related to room need or use.

    • sue

      i think this type of problem will reoccur. Even though the stories in the media have been about objective need for space as a consequence of disability there are many more conditions which require thought here. Using disability in a narrow way so that the only exception is for a room for a carer and so DHPs are targeted at those with wheelchair adaptations, ignores long-standing definitions of disability which don’t merely depend on functional, or even visible, impairment. This can include HIV (classed as a disability at the point of diagnosis), M.S., Cancer, mental health conditions etc. All are recognised as disabilities and yet they don’t necessarily require adaptations. They may do in the future; the person with cancer may need the additional room for a carer, but by then may have to go into a hospice if they’ve lost their home. We miss the indirect discrimination of this policy by focusing on obvious cases for rooms per se. The policy is discriminatory because it inflicts a financial penalty on a group meant to be exempt due to illness; no matter how much their extra space, it is inhumane and retrogressive (UNCRPD) to ignore the disproportionate effects of such a financial penalty upon an economically inactive tenant whose status as sick or disabled is sanctioned and approved by the State by quite rigorous assessments. (The government are aware of their equality duties as they used them to exempt disabled people from the overall benefit cap; very odd that they have not done so here.) But the focus on the bedroom tax as purely a housing issue or ‘need for space’ issue risks missing some of the ways the policy is a damaging attack on human rights and disability law. (Articles 3,8,14 of ECHR and 4,19,28 UNCRPD and Article 11 ICESCR )

    • Nathan Roberts

      Completely agree sue. Many types of disabilities which probably meet the definition under the Equality Act (which is essentially the same definition as under the DDA) that should probably be covered in these arguments, whom don’t necessarily physically personally need each individual bedroom for use, but maybe implicit through the nature of that particular disability or those particular effects arrising from; that they need that particular property in that particular community and to disturb whatever progress has been made (in whatever sense, either phsyically or mentally) could result in further worsening of said disability etc. i.e. direct or indirect discrimination.

      It was like the comment made by the person above whom has HIV, I was finding it difficult to assess from my layman view whether that would fall within the scope of “disability” for the purposes of the EA as a standalone diagnoses not specifically specified, but then having found paragraph 6 to schedule 1, it is a prescribed disability for the purposes of the Act, therefore, it is automatic entittlement to the protection under that Act. In that respect, one could not preclude somone whom is diagnosed as having HIV, it would be the effects on that person that these provisions would have on that particular person which I presume would be the deciding factor as to whether, in that case, the secondary legislation is defeated by the primary legislation.

    • Nathan Roberts

      To add to that, as if I don’t have enough to deal with myself on other personal issues; I think my mother’s stubborness to fight with this issue is compelling enough for me to have to take some form of action if I am not able to find representation for her. The fact is, I can see so many being effected by this that it is going to clogg up the system, finding a solicitor to deal with other issues hasn’t been easy let alone this issue.

    • NL

      Sue, I agree that there are conditions that require thought. But the difficulty with any argument that is not attached to the use of the property is that it is hard to establish where the discrimination arises. For example, the bedroom tax regs do not require someone to move out of the area in which they are living and supported. It may well be the case that a move to a smaller property would involve a move to a new area, but it is not inevitable and not required. So there is, at the very least, an evidential mountain to climb to show that this would be the inevitable result.

      There is no general ‘exemption due to illness’ that I am aware of. I agree that people with disabilities form a disproportionately large number of those affected, as shown by Hilary Burkitt’s research linked to in the post, but you are making a political argument rather than a legal one. I agree with your political argument, but my concern here was with potential legal challenges. ‘The sick and disabled shouldn’t face financial penalties’ is not going to fly as a legal argument. Any blanket argument is simply going to face the response of ‘where is the discrimination/less favourable treatment in a person with disability x or y moving to a smaller property to avoid the penalty?’

      Nathan, the public sector equality duty in the Equality Act is not absolute – it simply requires ‘due regard to the need to’ eliminate discrimination, etc. Indirect discrimination can be justified as ‘a proportionate means of achieving a legitimate aim’. What would be argued by the Govt as the legitimate aim is clear (whether you agree with it or not) and the DWP’s line on why this would be proportionate is also clear (again, whether you agree with it or not). It is not simply a case of ‘primary legislation defeating secondary legislation’. You would have to establish that a) the measure is (directly or indirectly) discriminatory and then b) that the measure was not proportionate to the legitimate aim.

    • sue

      I defer to your legal knowledge NL, only being an interested layperson! But the legislation itself is clear in it’s expectation that the majority of tenant’s won’t actually move but will find ways to make up the shortfall. So, the government tacitly acknowledge that this is nothing to do with reallocation of properties. It is about saving money from the HB bill. In this way the impact is most definitely disproportionate to the aim. There are also insufficient properties for people to move to; people are stuck paying a penalty even if they want to move. They explicitly recommend , in the written legislation for this part of the welfare reform act, taking up work or taking in a lodger as a way for people to mitigate the effect. This is in the actual legislation documents as advice to justify the policy. Nothing about tenants who are ill or disabled. They have not done anything to demonstrate that they understand the ‘different’ needs of sick and disabled people or the difficulties they may have in ameliorating the impact. Similar to Burnip, it’s not just the need for space but that they have not justified the indirect discrimination which will occur and in that sense your final comment to Nathan stands true; the measure is not proportionate to the aim. I’m very glad this issue is getting people fired up finally. You might have to do a few more posts on this one NL!

    • sue

      Sorry, that should have read written ‘in the explanatory memorandum which supports the legislation’.

    • sue

      Exemption from the bedroom tax due to illness, or rather exemption on the basis of being in receipt of DLA was an amendment to the policy won in the Lords and then overturned. The National Housing Federation pressed for a similar amendment.

    • Nathan Roberts

      Council declined DHP application on the grounds that no shortfall of rent / application in advance, even though clearly it says on the application the applicable date.

      Time to hit the drawing board with an appeal:-

      Gargett, R (on the application of) v London Borough of Lambeth [2008] EWCA Civ 1450

    • Nathan Roberts

      thanks sue, will do

  15. Tom (iow)

    I still the statement “the statute and regulations have left the definition of a bedroom up to social landlords” is incorrect. The regulations don’t say this – they don’t define bedroom at all. Therefore whether a room is a bedroom is a question of fact and ‘bedroom’ carries its ordinary meaning…

    Also, taking the mobility component of DLA into account for any kind of means test (presumably including DHPs) does not appear to be lawful, except where specifically prescribed: section 73(14) Contributions and Benefits Act. Sadly there is no eqivalent provision for the care component.

    • NL

      The regs don’t define a bedroom. The guidance says it is up to landlords. If you look again at the post, I’m quite clear that I think that leaves room for challenges. But ‘ordinary meaning’ effectively just leaves you with ‘the number of bedrooms it says in the tenancy agreement’. Having other statutory definitions of what can constitute a bedroom to hand is useful.

      DHP is not means tested, save to the extent that one must be in receipt of HB which is means tested. But I think any argument that DLA should be used to make up rent falls foul of the Court of Appeal decision in Burnip.

    • NL

      If you read the Counsel’s opinion (link here) that Govan Law Centre are relying on, it doesn’t actually say what they seem to be taking from it. In fact the opinion doesn’t support the view that tenant use is crucial in defining a bedroom. I think Govan are being a bit hopeful here. My view is that a challenge on the basis of tenant use alone would not succeed. That said, I hope it would. I may write something on the QC’s opinion.

  16. Scott whiteman

    1; Article 8 echr says i have the right to a family life. Now as i have two teenage girls, where are they supposed to stay at weekends, if i am forced to downsize to a one bed flat. I will have no family life then.
    2; If I was working and paying full rent I would not be asked to downsize, so this tax is about saving money not freeing up rooms. Now because I cannot work this is discriminating against me.

    • Nathan Roberts

      Completely agree, don’t blame you…

    • Chris W

      I agree totally with you.

      I will refuse to pay this tax. I will not pay for two reasons. One bedroom is too small (under 70 sq ft) and the other is that I am not going to have anyone tell me that I should go into the same bedroom as my disabled wife who has severe mobility problems and dementia. We have not had the same bedroom for over 7 years and I am her full time carer with my own intercom system should anything happen to her. We also have an alarm system fitted to the house just for her disability.

    • NL

      I think you are far from alone, and this shows why this is such a destructive and unpleasant approach by the DWP. However, I don’t think that a challenge based on Article 8 in those circumstamnces would succeed, for reasons related to the House of Lords decision in this case.

  17. Thomas

    I am not from a legal background but would be interested to know if it would be possible to sue the landlord (Local Authority or Housing Association) for failing to provide smaller properties to move into which could eventually lead to eviction, homelessness and debt to tenants with no alternative.

    • NL

      I’m afraid the answer is no. There is no duty to provide accommodation at all (except via the homelessness route).

  18. Lex

    Looks like we’ll be making a wall thicker then…

    Also, is a room without a door suitable for use as a bedroom?

  19. Cllr. Robert H. Brown

    Question: Does this Bedroom Tax apply to those who are on benefits who own their own property ?

    • NL

      No. Housing Benefit for social housing tenants only.

    • Cllr. Robert H. Brown

      Thank you for the quick reply to my question. Much appreciated.

  20. Eileen

    Benefit changes, bedroom tax and Housing Benefit discrimination on the grounds of family status

    I have adult child, who has been living with me all her life. She currently (after 120 job applications and many short jobs) has again succeeded to get a maternity cover job job, which may or may not become permanent when 6 months are over.

    Should she loose her job, she would not be able to pay rent, and under the bedroom tax, I would become liable not only for a deduction in my housing benefit, but I would also have to pay full council tax, even though my daughter is banned from claiming housing benefit, or claiming council tax to cover the 25% single person discount which I do not get because my daughter lives with me.

    Subsistence benefits for the under 25s are only barely enough to just about subsist. There simply is not enough to divert this meagre amount to pay for rent and pay the share of council tax (i.e. the loss of the single person discount) which any social housing parent incurs if the adult child continues to build a future by staying in the family home.

    I am puzzled at the anti family stand by this Government which only recently advised young adult to live with their parents, yet then bans adult children who live in social housing rented by their parent, from being able to claim any housing benefit at all on the grounds that they reside in their parents home.

    Surely, when young adults who are only just embarking on the ladder to long-term work, through no fault of their own, (unemployment, sickness or injury) become temporarily unable to work, it can not be right that not only her parent, but also the young person face eviction from the family home, because the UK has decided to discriminate against Housing Benefit applicants on the ground of family status.

    I wonder why to date there has been no discussion about Article 8 (right to family live) and the right to not be discriminated against, and recent reforms in council tax (everyone one pay), subsistence benefits (limiting under 35s to only get housing allowance that covers shared accommodation, taken together with the (unreformed) discrimination in access to housing benefit merely on the grounds of family status.

    I know few trust the Tories or the Liberals, but did they not proclaim that families matter?

    • NL


      I think you are mixing up different things here. So long as your daughter is living with you and there is no ‘spare’ bedroom, you will not be libale for the bedroom tax. You will, however, be liable for a non-dependant deduction from your housing benefit, the amount of which would vary with your daughters income. If she is getting Jobseekers Allowance and under 25, then there shouldn’t be a deduction at all. If your daughter was unemplyed, I don’t think you would be liable for the full Council Tax. How much you would be liable for will depend on your local council’s scheme.

      This all has nothing to do with the bedroom tax and has been the case for many years.

      Family status is not a ground for discrimination, I’m afraid.

  21. Valerie Walton

    I’m 61 years old but do not reach my pension age until September this year, and as I live alone in the 3 bedroom council house that has been my family home for 32 years I will be expected to pay £18.94 a week out of my disability benefits until I reach said ‘pension age’.
    I live alone due to the marriage of my two older children and the tragic death of my youngest son. If he had lived he’d have still been living with me, he had cerebral palsy and I was his full-time carer for the 20 years of his life. Hence I was unable to work and am now unable to work due to my own disability.
    It goes without saying I’d be reluctant to move for the sake of 5/6 months, and there are very few available smaller properties anyway.
    I will of course be applying for DHP but am fully aware there is no guarantee that I’ll receive such help.
    My main concern about the legality of the ‘bedroom tax’ is that in my annual statement of benefits (Incapacity benefit topped up by Income Support) is the phrase ‘the amount the law says you will need to live on’
    Surely by penalising me to the tune of £18.94 a week they are breaking that law?
    I am confused and distraught.

    • NL


      I’m afraid that because the regulations don’t demand or require that the rent shortfall is paid from subsistence benefits (as the DWP keep saying, you can technically ‘move, work, or take a lodger’) there isn’t an arguable breach on the basis that your Income Support is assessed as the minimum necessary to live on.

      Of course there are many people who can’t move, work or take a lodger and, like you, have lived in their homes for many years. This is another reason why the bedroom tax is both harsh and unworkable.

    • Valerie Walton

      I feared they’d have all bases covered but felt the need to ask, thanks for your speedy reply,
      Of course I can neither move (the council have already told me there are insufficient smaller properties), nor work (due to my age and disability) and the idea of taking a lodger into my home, sleeping in my dead son’s room and sharing my kitchen and bathroom etc, is totally unthinkable.
      Harsh and unworkable are very polite words compared to how I feel about this bedroom tax!
      Thanks again though, and I wish you and the people you represent all the luck in the world in your quest for justice.

    • sue

      Valerie, if you get this, go to the Daily Mirror site, they have a link for everyone affected to email David Cameron who has said he’ll look at every case. Send your case to him. He’s in for a shock when he realises how many are affected!! Don’t despair, people are fighting this now on all fronts.

    • Valerie Walton

      Thanks so much Sue.
      I have in fact already written to David Cameron requesting that he look at my case, and I enclosed the front page article from my local newspaper that highlighted my circumstances.
      Today I received an acknowledgement from his office saying my correspondence is ‘currently under consideration’, I take that to mean it’s filed along with the thousands of others who all, in my view, have as much or more need than me.
      I fear though, the arrogance and inhuman attitude of our elected government will not be altered by our very real despair.
      They just don’t ‘get it’ do they?
      I will fight on, I have no alternative because paying £18.94 a week means going without either food or heating.
      Thanks again for your advice and your time.

    • sue

      In the Burnip judgment it was made clear that disability benefits should not be deemed available for use towards housing costs. Although the government has made recommendations as you point out; take up work, lodger, move etc ; one or all of these could be said NOT to take account of the different needs of someone with a disability who is not expected to work (not in all cases but you see the point) a lodger would be an intrusion and to move might mean losing either an informal care network or local authority care package which is not portable across different LAs. You might be interested to know that a briefing I wrote on these issues has been referenced by Leigh Day who have just applied for Judicial Review. An update will be posted by my colleague Jane Young on the Spartacus website asap.

    • Valerie Walton

      Thank you again, I’ll be very interested to see the outcome of this.

    • NL


      Thanks for this. I saw that a Spartacus challenge was in the works. Very interested to see how it goes! I agree on the implication of Burnip for disability benefits. Valerie was asking about subsistence benefits – Income Support – which was why I pointed out that, technically, the regs didn’t require payment from subsistence benefits (for all that in practice, we know that will often be the case)

    • NL

      I know some of the arguments on that site. This is all new territory so I couldn’t give a view on chances of success, but I think they would be at best a delaying tactic.

    • sue

      There’s a very good toolkit available at the Govan Law centre site about appealing the bedroom tax. I agree that, until properly tested, these may at best be delaying tactics. But I am ever hopeful about the forthcoming JR in May so anything that delays until the Courts (hopefully) declare the policy unlawful is to be welcomed. Personally I’d recommend people appeal but still pay as much of the bedroom tax as they can afford, even if it’s only a fiver a week, that way you’re covered for any eventuality.

    • NL

      The Govan toolkit is here http://www.govanhilllc.com/brtax/

      I am hopeful about the May JRs too, but those will only impact on certain elements of the Regs at most. And I would expect them to be appealed.

      I anticipate that pro forma appeals will meet a pro forma response pretty quickly. Unless there is something substantive, like a disability related issue, or possibly room size and description as bedroom, I’m not sure how effective – for individuals – appeals would be.

  22. k bristow

    I was under the impression they wanted to get homes where the family have grown up and left leaving 1 or 2 people in a 3 or more bedroom house which would make it easier or people to keep warm do their gardens and keep the home in good repair then to learn NO if you are a pensioner it wont effect you and their is NO BEDROOM TAX TO PAY most of these people are the ones with all the extra space I know someone who has 2 large empty rooms a dining room a lounge kitchen large front garden and an even larger back garden she cant afford to heat the house properly keep it looking nice inside even the house cleaning is an issue and the garden is a no go she got a letter saying no prob no worry u r excempt from bedroom tax pls pls pls can anyone tell what difference the age makes. I have a tiny house with a tiny box room infact you can just about swing a cat round the whole house not that I have one but feel thinhgs r just not fair I am very sick I cant afford to have my heating on as much as I need to and spend most of my time . . in my bed or with loads of layers even to the extent that I wear my coat and gloves during the day so can put heat on for an hour before bedtime and having a bath I have been very sick since xmas because of the cold weather and don’t know what I will do with that extra deduction. so can anyone tell me why this excemption is fair but nuts to every other person??????sorry for my spelling!!!

    • NL

      We are talking about the legal options here, I’m afraid. The broad principle of exempting pensioners and the fairness of that is outside that discussion.

    • Thomas

      Surely age discrimination is a legal issue.

    • Giles Peaker

      Not for accommodation. Excluded by Equality Act.

    • Thomas

      But it’s the benefit that is being withheld, not the accommodation.

    • Nathan

      If the JR on the disability issues succeeds, the government are a bit nackard anyway, it would make any minimal ‘savings’ (which in themselves are a fantasy) completely redundant.

      Even regardless of that, within the first 4 weeks many news reports report on the impact to tenants paying the difference, it appears even from a provisional view that up to 80% of affected persons have already missed payments to rent accounts. They are ‘monitoring’ the situation. I think the better idea would have been to scrap the idea all together, it is clear that it will cost them more than any savings, and even have long term damaging effect on people’s health.

    • Giles Peaker

      Fair point. So the argument would be that pensioners should also be subject to the bedroom tax?

    • Thomas

      If it’s supposed to be fair, then it must include everybody. Maybe that will be the judgement.

    • Giles Peaker

      No, it won’t because nobody is bringing that claim. Not least because age discrimination is not an absolute, it is entirely possible for the Govt to act in a discriminatory way in a policy if it is as a proportionate means of achieving a legitimate aim.

  23. herman

    When the Conservatives were out of Government, they had lots of time to design a strategy leading to the demolition of social housing.

    The bedrom tax is like a cuckoo’s egg, it is deployed to create non-payment of rent thus driving up rents, just as ending tenancy for life is intended to result in tenants investing less in the care and upkeep of their homes, again leading to higher repair and maintenance costs for social housing providers. Ending direct payments to landlords is not about teaching people to be responsible, but is intended to cause non-payment of rent to drive up rent shortfalls and cause higher rents for those who pay. And by driving up rents in the state sector, the Tory strategists aim to sustain the house price bubble brought about by rent to let and the state subsidy system to “private” landlords who are given state hand-outs (housing benefit) to build up private poroperty empires. So now faced with a faltering economy the real aim of the the Tory strategists is an attempt to force social landlords to hand over (sell) housing assets to cover the funding gaps created by Tory dogma which is in denial that it is far more economical to use bonds to build council housing than to pay housing benefit to private landlords.

  24. Liz

    Hi there,

    I currently have a tenancy with a housing association for a two bed flat. The flat is extremely small, as a matter of fact, the second bedroom which is my daughter’s bedroom would fall in the:

    50 – 69 sq ft (4.6 – 6.5 sq m approx) = 0.5 people.

    If you use a tape measure it is 70 sq ft, however, this is excluding the small partition wall which is a few inches and takes up space, as well as the fact that it is a loft conversion with sloping low ceilings, which makes it impossible to put a wardrobe on one side of the room. so even though the floor space is just less thatn 70 sq ft, the ceiling space is significantly less. In fact a single bed, wardrobe and chest of drawers would not fit in this room. I wonder if I am able to challenge this as a ‘bedroom’ as my 2 year old daughter just about fits in there. This is not to counter any bedroom tax, as this is not an issue for me, but I would like to move as it is impossible to function and my daughter has already outgrown this space. The other properties on the same scale as mine are all 1 beds. I would just like some advice as to whether there is any grounds for challenging as it is really just too small for what it is aiming to be, and in my opinion should be converted back to a 1 bed.

    Any advice would help,

    Many thanks

  25. Lori

    Liz, as far as i;m aware, the size criteria for a bedroom is not just 50 sq ft, but 50 USABLE square feet. this might help?

    • Giles Peaker

      Lori, there are NO size criteria for a bedroom. The 50 sq ft part comes from the Housing Act 1985 schedule for assessing statutory overcrowding and has lawful affect only on that. It may be persuasive (e.g. Welwyn Hatfield Council redesignating roos smaller than 50 sq ft as ‘boxrooms’ not bedrooms, but it currently has no force in law on deciding what is a bedroom.

    • Chris W

      The point that you are all trying to make does hold water, but in different ways as I have personally experienced these new rules and still going through a stupid decision by my landlord. Under the Housing Benefit & Council Tax Benefit Circular 2012 which is the Housing Benefit size criteria for working age claimants in the social rented sector from April 1st 2013.

      Bedroom Size.
      12. We will not be defining what we mean by a bedroom in legislation and there is no definition of a bedroom size set out in regulations. It will be up to the landlord to accurately describe the property in line with the actual rent charged.

      I am still now fighting a case for my daughter over a bedroom which is only 5.48mt sq (under 60sq ft). Under the 2004 Housing Act (Crowding and Space) we contacted the Environmental Health who came out and measured the bedroom and stated beyond any doubt that the small bedroom is ‘Unfit for purpose’. The EH officer that came out stated specifically that only 2 bedrooms were of use under the 2004 Act.

      The landlord ( a local housing trust) refuse to acknowledge this finding and are still taking my daughter to court for possession next month for a total of £116.16 bedroom tax. Such a trivial sum to try and gain possession.

      Currently I have complained very strongly about the actions of the trust and it has now been taken to the highest level within the trust management. I also have involved several local councillors who object strongly to the harsh treatment my daughter is receiving. She has 3 young children.

      It seems that if you want to try and go down the bedroom size route then you should consider utilising the EH dept of your local council and go the path of using the 2004 Housing Act (Crowding & Space).

      I am now told that a decision on my daughters problem will be made next week. The local council support my daughter but the trust are not. That’s politics and politicians who know bugger all of the effects these stupid regulations are having on ordinary people. In one case you can have a room measured and in another case you can’t, and then to add to the confusion your landlord may not agree with your council and you are still stuffed with paying.

      It seems the only way to get things done is to shout very loud and give them as much grief as they give you. I shall post any results as soon as I get them if it helps others.

  26. christine mather

    please could you help, two years ago i had a stroke, i am still unfit for work, i have been affected by the council tax, i live in a 3 bed room semi with a nice garden, i cannot afford to pay the council bedroom tax, i am on the lowest rate of dla, but i am hoping to get it increased, this year as i have never challenged the results, the council are bidding for suitable accomodation on my behalf, the first ground floor flat that they have won a bid on on my behalf is awfull,
    i have just heard about a small bedroom being exempt if it is not 7ft square, if this is correct, could i get financial help to seek the advice of a solictor.

    • Giles Peaker

      I’m afraid there is no legal aid for benefit cases any more at this level. You may be able to find an advice centre or law centre that can help. Some benefit appeals tribunals have been deciding that a room below 50 sq ft can’t be classed as a bedroom, so it could be worth appealing.

  27. Laura Ellison

    could an arguement be put forward if a looked after child aged 3 was in a box room rather than sharing a room with a 15 year old aunty due to the previous situation she had been removed from with support from social services that the child although not disabled did in fact need to have a room not shared

    • Giles Peaker

      It all depends on the reasons why the children can’t share a room. (And the sex of the children).


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