Bedroom Tax: Pre 1996 claims exemption.

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

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

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

(original bulletin)

HB U1/2014 8 January 2014
Queries about the bulletin in general,
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


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.

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. sue vincent

    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?

    • Giles Peaker

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

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

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

  2. Sue Vincent

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

    I appreciate you clarifying this.

  3. Mrs Joy Griffiths

    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.

    • Giles Peaker

      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.

    • Mrs Joy Griffiths

      Think you Giles

    • Mrs Joy Griffiths

      Thank you Giles

  4. Gemma Whiteman

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

  5. stephanie

    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

    • Giles Peaker

      Write setting out the history and requesting a reconsideration, referring to DWP Circular U1/2014. Keep a copy of your letter!

    • stephanie

      many thanks I have put in a appeal

  6. Sam

    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

    • Giles Peaker

      I’m afraid you won’t be part of this exemption, I’m sorry.

  7. chris p

    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….

    • Giles Peaker

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

  8. S l nixon

    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

    • Giles Peaker

      If we were any help, I’m delighted.

  9. Jade

    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

    • Giles Peaker

      Sorry Jade. The key date is 2 January 1996.

    • Jade

      Thanks Giles.

  10. cheryl

    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

    • Giles Peaker

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

  11. paula

    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

    • Giles Peaker

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

  12. paula

    i heard they are doing away with the bedroom tax is this true

    • Giles Peaker

      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.

  13. David

    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.

    • Giles Peaker

      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.

  14. David

    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 .

    • Giles Peaker

      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.

    • David

      Thank you Giles.

  15. Suev

    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?

    • Giles Peaker

      Glad if we’ve been of help. And yes, I’m afraid the exemption is ended as of 3 March 2014.

    • sue vincent

      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.

  16. S Hopkins

    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.


    S Hopkins

    • Giles Peaker

      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).

    • S Hopkins

      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

    • Giles Peaker

      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.

    • S Hopkins

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

      Thanks again

    • S Hopkins

      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?


    • Giles Peaker

      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.

  17. Dorothy

    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

    • Giles Peaker

      You may need to appeal to the First Tier Tribunal. You should seek advice from a local CAB, Advice agency or law centre.

    • Dorothy

      Thanks for the prompt reply Giles, I`ll try my local CAB

  18. Debbie

    FTT SC068/14/0101010

    Liverpool 03/06/2014. Pre 1996 exemption.
    Forced to move due to demolition

    • Giles Peaker

      Thanks Debbie – do you have a decision notice? And what was the outcome?

  19. Alex

    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?


    • Stephanie

      I was exempt and now have been told this yr I’m not

    • Giles Peaker

      Yes, the exemption ended in March this year after the govt changed the rules.

  20. Stephanie

    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

    • Giles Peaker

      No, the exemption ended for everyone in March. I’m sorry.

  21. millie

    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

    • Giles Peaker

      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.

  22. margaret patterson

    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

  23. Rose Doherty

    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

    • Giles Peaker

      Rose, the HB claim has to be continuous from 1996. The last 8 years isn’t long enough. Sorry.

  24. margaret patterson

    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

    • Giles Peaker

      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.

  25. Mary

    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.

    • Giles Peaker

      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.

  26. debbie

    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?

    • Giles Peaker

      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.

  27. debbie

    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.

    • Giles Peaker

      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.

    • debbie

      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.

    • Giles Peaker


      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/

    • debbie

      thanks very much giles. i will keep you updated on my appeal.

    • debbie

      just to let you know my appeal has been turned down

  28. CllrChris

    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.

    • Giles Peaker

      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.

    • CllrChris

      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.

  29. daisie

    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 ??

  30. Karen clanford

    I have had a tenancy since 1981 am I exempt from bedroom tax

  31. Michael Orgles

    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.

    • Giles Peaker

      I can’t because you don’t say how many bedrooms there are. But the pre 1996 exemption was removed in March 2015.

  32. S Williams

    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 ” ??

    • Giles Peaker

      Yes, I’m afraid they can.

  33. Sue Folwell

    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


    • Giles Peaker

      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.

  34. Jennifer grant

    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

    • Giles Peaker

      The exemption ceased to exist as of 3 March 2014, but had to be in the same property throughout anyway. Sorry.

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