[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
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.
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.
If ived been paying bed room tax since Cameron announced it.been on housing benefit.lived in my hose till now since 1984 are we excempt from paying bedroom tax .For two extra bedrooms it’s now 184 pounds a month from 154 .I have lived here since my daughter was ten as we moved here on her 10th birthday. Linda
Get advice from Citizens Advice or a Law Centre. I’m afraid we can’t give individual advice here.
Thanks for this. The tenancy was succeeded from a parent si it looks like the exemption won’t apply.
I appreciate you clarifying this.
I’m still looking at it, so not definite yet.
Sue, it would apply. See http://nearlylegal.co.uk/2014/01/bedroom-tax-the-effect-of-the-pre-1996-claim-exemption/
Thank you Giles!
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.
Think you Giles
Thank you Giles
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
Depends why the house was torn down. There are more details here. http://nearlylegal.co.uk/2014/01/bedroom-tax-the-effect-of-the-pre-1996-claim-exemption/
I am not 100% sure why, but they tore down the whole street and tenants were rehoused.
It does depend why. There are a limited set of reasons allowed. See the other post I linked to.
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
Write setting out the history and requesting a reconsideration, referring to DWP Circular U1/2014. Keep a copy of your letter!
many thanks I have put in a appeal
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
I’m afraid you won’t be part of this exemption, I’m sorry.
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.
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
If we were any help, I’m delighted.
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
Sorry Jade. The key date is 2 January 1996.
Thanks Giles.
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.
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.
i heard they are doing away with the bedroom tax is this true
No. Labour have said they will repeal it, but that wouldn’t be till after the 2015 election if they win. The government is set on keeping it.
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.
David, I can’t tell from what you say. I think you should seek advice from an advice centre, Law Centre or CAB benefits specialist.
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.
Thank you Giles.
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
Glad if we’ve been of help. And yes, I’m afraid the exemption is ended as of 3 March 2014.
Hi Giles. It has taken a while but following advice from you my friend has won a first tier tribunal re the Bedroom Tax loophole. Thank you so much for your help. I understand though that the decision from the tribunal is not binding. Are you aware of any instances when a local authority has refused to adhere to the decision? In this case the authority has been very obstructive so am concerned. Thanks Sue.
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
Hello Giles, Just a brief update regarding my previous posts. My appeal was referred to the Tribunal. On the 22/10/14 I received correspondence off the HM Courts & Tribunal Services stating that my appeal was heard at havefordwest.
Correspondence then states the tribunal decided to adjourn the hearing. The decision notice explains why the tribunal were unable to decide the appeal. It may also include instructions to ensure the next tribunal can reach a decision.
The notice itself states the name of the Judge & it appears to be the same Judge who will hear the appeal, but at a different location. Unless there is an error regarding the Judges name. He has listed it for an oral hearing in Cardiff.
I have made contact with HM Courts & Tribunal services as my health is not good I know that I will be unable to attend. I am intrigued by the decision its not in favour or against myself, but I feel that the Judge has noted an issue here?
Giles I noted a decision notice on your website re Aberystwyth? where a bedroom measures 63.3sq ft. concluded by the dimensions 7ft 1 x 9ft 6. I know that the calculations you have given must be correct, but when I calculated it totalled to 67.? sq ft. Please could the difference of 4sq ft be an allowance for skirting?
Thanks
Hi, we can’t advise on your case, I’m afraid. And you should be aware that Local Authority officers also read this site.
You are right on the dimensions in that case – it would be 67.3 sq ft. But I have no idea which of the figures are right. A calculation of floor space should be usable space, certainly. But there is no certainty over room size being a deciding factor.
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
You may need to appeal to the First Tier Tribunal. You should seek advice from a local CAB, Advice agency or law centre.
Thanks for the prompt reply Giles, I`ll try my local CAB
FTT SC068/14/0101010
Liverpool 03/06/2014. Pre 1996 exemption.
Forced to move due to demolition
Thanks Debbie – do you have a decision notice? And what was the outcome?
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
It applies for the period April 2013 to March 2014. Though the time for appealing that if the Council don’t accept it has past, pretty much.
But it won’t apply for your friend, I’m afraid. And probably wouldn’t have anyway, as it doesn’t apply for ‘forced move’ or demolition, only fire, flood, explosion or natural catastrophe. See here http://nearlylegal.co.uk/2014/01/bedroom-tax-the-effect-of-the-pre-1996-claim-exemption/
I was exempt and now have been told this yr I’m not
Yes, the exemption ended in March this year after the govt changed the rules.
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
No, the exemption ended for everyone in March. I’m sorry.
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.
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
We can’t advise, but I can’t see how that would fall under the exemptions, I’m afraid. See http://nearlylegal.co.uk/2014/01/bedroom-tax-the-effect-of-the-pre-1996-claim-exemption/ I do think you could be classed as a successor for the purposes of the regulations.
And the exemption ceased to exist from 3 March 2014.
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
Rose, the HB claim has to be continuous from 1996. The last 8 years isn’t long enough. Sorry.
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.
I did receive a rebate for the under occupancy! Am I right in thinking the under occupancy still applies?! The local authority (I believe are paying this by a DHP) and I am also paying my HA.
Would I be expected to downsize still or will my HA continue receiving this payment from my local council?
It just seems unfair that for ashort period you are exampt then you are not. I am thinking oif appealing the under occupancy charge but not sure about it..any advice would be really helpful.
Mary, the pre 1996 exemption ended on 3 March 2014. From that point on people were liable for the bedroom tax again. DHPs are a matter for the discretion of the local Council, so I simply cannot say whether they would keep paying DHPs or not.
i have been living at my current address since 1980. My mother passed away in 2003 and i was given the tenancy it is a three bedroom family home. I work part time and earn less than some 1 jsa. I am charged 25% bedroom tax. My mother was in receipt of hb before 1996 until her death. I have been to court and lost but am appealing on the grounds of succesion, do i stand any legal chance of proceeding this case further?
Only if i) you claimed HB from the time of your mother’s death continuously up to March 2014, and ii) the decision you are challenging is to impose the bedroom tax from April 2013. The ‘1996’ exemption was removed from March 2014.
the court are saying i only inherited the tenancy after my mothers death and therefore not 1996 but have lived here since 1980. i have been in receiipt of hb since 1996.
See here – http://nearlylegal.co.uk/2014/01/bedroom-tax-the-effect-of-the-pre-1996-claim-exemption/
If you succeeded to the tenancy on your mother’s death in 2003 and between you both, HB was claimed continuously from before 1 Jan 1996, the exemption should have applied. There should be a re-payment of bedroom tax for the period April 2013 to 3 March 2014. The bedroom tax will apply after 3 March 2014.
I don’t know which Court you are talking about. But you should have applied to the First Tier Tribunal. If the First Tier Tribunal rejected your appeal, appeal that to the Upper Tribunal.
they are saying i wasnt the tenant in 1996/ but received hb and contributed towards the rent. I am about to send an appeal into the upper tribunal but dont know what i should say to them, as i have already given them all this information.
Debbie.
It doesn’t matter whether you were the tenant, or whether you contributed towards the rent before you mother’s death. If this is what they are saying, they are wrong. If you lived in the property and succeeded to the tenancy on your mother’s death in 2003, and your mother claimed HB solidly from 1996 to 2003 and you did solidly from 2003 to 2013, that is enough for the exemption to have applied. See this post – http://nearlylegal.co.uk/2014/01/bedroom-tax-the-effect-of-the-pre-1996-claim-exemption/
thanks very much giles. i will keep you updated on my appeal.
just to let you know my appeal has been turned down
A tenant has a five week break in benefits payments in 2003. She was “entitled” but failed to hand a form in on time – a form the council sends around from time to time to check benefits are still payable. The Council took her off benefits for 5 weeks for not returning that form on time (she had to pay for that period by instalments over a few years!). She had circumstances at that time that mitigated (in Wales caring for a sick relative). I don’t think anybody disputes that she was “entitled” to the benefits for that period. She just “failed to fill in a form” (or re-claim?). In such a case is it the “entitlement” of Housing Benefit that counts? Or is it only the “payment” of HB that is the issue?? I’d really appreciate some advice here.
Tricky. The regulation says “continuously entitled to and in receipt of housing benefit” (Schedule 3 to HB&CTB Consequential Provisions Regs 2006. 4(3)(b) ).
So while DWP circular only refers to ‘entitlement’ – which would arguably cover a longer break in payment where there was underlying entitlement, the reg itself also refers to ‘in receipt’, which would rule out such a period, beyond the 4 weeks.
Not clear cut, but I suspect she would be ruled out.
Thank you Giles – especially for the very quick reply. The “and in receipt” does seem to devastate the argument. Shame because I really would like to help as she has been treated so unfairly (IMHO). But law is law (sigh). I’ll keep trying to find a work-around.
I was exempt from bedroom tax as I was on benefit , but my son has come home to live on temp basic when he leave again will I still be exempt from bed room tax ??
I have had a tenancy since 1981 am I exempt from bedroom tax
No, afraid not.
When we moved in in 1995 we were not under occupied as the law is now. I have been claiming housing benefit since we moved in in 1995. My son died in 1996 but have been continually claiming housing benefit to the present day because my wife and daughter and myself are all disabled, my wife and I are in receipt of income support and DLA at highest rate our daughter is in receipt of ESA and PIP. Can you tell me if we are exempt of the bedroom tax.
I can’t because you don’t say how many bedrooms there are. But the pre 1996 exemption was removed in March 2015.
Hi I all way been on h/b I got the the bedroom tax on my favour but my son was homeless and came home for 1 year so came off h/b when he left I had pay bedroom tax is this right ” they cant give you something then take off you ” ??
Yes, I’m afraid they can.
Hello Giles, Can the exemption apply if the tenant has been non stop in receipt of housing benefit prior to 01.1.96, then did a mutual exchange in June 1996. She has remained on benefits for the whole time . Would it be possible because Housing Benefits have treated the case as a continuous ‘change of address/circumstances’ they could legally be able to look at the case as being ‘continuous’ ? …. or is this wishful thinking ?
kind regards
Sue
The exemption no longer exists and hasn’t done since 3 March 2014. Mutual exchange is a new tenancy – or rather it isn’t, but is a form of cross assignment, but not continuity of the same tenancy for HB purposes.
I have been a teanant and qualified for hb since 1984 I lived in two bedroom flat for 2 years and the moved to 2 bedroom house for 4 yrs I then moved to 3 bedroom because I had two siblings opposite boy and girl I lived in 3bed property for 25yrs I became ill and disabled and moved o medical grounds to a 2 bedroom bungalow I moved in 2006 would I get exception from bedroom tax
The exemption ceased to exist as of 3 March 2014, but had to be in the same property throughout anyway. Sorry.
Hi I have been a housing association/Council tenant of my property since October 1992.My husband who was the claimant died in November.Will I be exempt from the bedroom tax?I have been paying since November 2019.Apart from my discretionary housing payment due to son earnings being affected due to the pademic.The other thing was should i have been given 3 months grace from the bedroom tax when my husband died.Thankyou in advance for any advice that may be given.Glenda
We can’t give individual advice on the site, I’m afraid. I would suggest contacting your local Citizens Advice.
Ok thankyou very much,will do as you suggested.