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The Bedroom Tax

Disability Rights UK Factsheet F57

This factsheet is free for you to download. We are committed to providing free information on our website but we are a small charity and if you are able to make a donation to help cover costs of research and updating it would make a big difference.

From April 2013 a rule on the number of bedrooms you are allowed was introduced to housing benefit and universal credit for working age people renting from a local authority, a registered housing association or other registered social landlord.

Working age means anyone under the age to claim pension credit.

You are not affected by the new bedroom size limit rule if you or your partner are claiming housing benefit and are over the age to claim pension credit.

However, you do come under the new rule if you are a member of a couple claiming universal credit and one of you is over the age to claim pension credit.

The new rules have been commonly termed “the bedroom tax” and restrict the size of accommodation you can receive housing benefit for based on the number of people in your household.

STOP PRESS: The Government has closed the bedroom tax 'loophole' with effect from 3 March 2014.

On 8 January 2014 the DWP admitted that an oversight when drafting bedroom tax legislation meant that housing benefit regulations dating from 1996 had not been correctly updated.

This meant that social housing tenants -

  • who have lived in their property since at least the 1 January 1996; and
  • have been continuously entitled to housing benefit since that date

- should contact their local authority to request arrears of housing benefit not paid on the basis of the bedroom tax. Such arrears will be payable even if discretionary housing benefit has previously been paid.

You can view the DWP guidance at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/270200/hb-bulletin-u1-2014.pdf

You can view the regulations removing this loophole at http://www.legislation.gov.uk/uksi/2014/212/made

 How might the bedroom tax affect me?

If, under these new rules, it is decided that you are under occupying your total eligible rent for housing benefit purposes will be reduced by:

  • 14% if you have 1 extra bedroom;
  • 25% if you have 2 or more extra bedrooms.

For example, if your eligible rent is £100 per week your eligible rent would be reduced by £14 per week if you have one extra bedroom or by £25 per week if you have two or more extra bedrooms. Your housing benefit entitlement will then be calculated using this reduced eligible rent amount.

Bedroom size

The new rules currently allow one bedroom for:

  • every adult couple;
  • any other adult aged 16 or over;
  • any two children of the same sex aged under 16;
  • any two children aged under 10;
  • a carer (or team of carers) who do not live with you but provide you or your partner with overnight care.

People who are approved foster carers (and formal kinship carers in Scotland) are allowed an additional room, whether or not a child has been placed with them or they are between placements, so long as they have fostered a child, or become an approved foster carer in the last 12 months (this will also cover a claimant who is in the process of adopting a child and has had the child placed with them by the local authority before the adoption order is made).

Adult children who are in the Armed Forces (including the Reserve Forces) but who continue to live with parents are treated as continuing to live at home, even when deployed on operations - in addition, housing benefit claimants will not be subject to a non-dependent deduction, i.e. the amount that those who are working are are expected to contribute to the household expenses, until the adult child return home.

In March 2013 the DWP issued guidance (HB/CTB U2/2013) that it accepts the Court of Appeal judgment of May 2012 in the case of Gorry that unanimously held that that the Local Housing Allowance size criteria discriminated unlawfully on grounds of disability by not including provision to meet the need for a disabled child for an additional bedroom.

From 4 December 2013 new regulations replaced this guidance and provide for amendments to the application of the size criteria designed to comply with the terms of the Gorry judgment.

The new rules will apply in relation to children who are entitled to the care component of disability living allowance at the higher or middle rate, where the local authority decision maker is satisfied that the child is not reasonably able to share a room. The dwelling must also include the necessary additional bedroom or bedrooms, on top of the number of bedrooms the claimant would normally be entitled to.

In addition the new regulations:

  • allow for an additional room to be allocated under the size criteria where a joint tenant who occupies the same property as the claimant, but is not their partner or a member of their household, has an overnight carer or is a foster carer; and
  • prevent the shared accommodation rate from being applied when a claimant is a single person under 35 who is also an approved foster carer.

However, the Government does not accept that the Gorry judgment also provides for an extra bedroom with respect to disabled adults - for example where the claimant is one of a couple who is unable to share a bedroom or where an extra room is required for equipment connected with their disability.

It therefore has no plans to introduce new housing benefit regulations that provide for an extra bedroom with respect to disabled adults.

Discretionary housing payments

In “support” of the bedroom size restriction rules the Government is providing an extra £30 million to the overall discretionary housing payments budget.

The Government has said that it will be issuing guidance to LAs emphasising that discretionary housing payments are available for priority groups that include the needs of people whose homes have had significant disability adaptations and those adults with long term medical condition or disability that create difficulties in sharing a bedroom.

If your housing benefit has been restricted in spite of the need of a disabled adult in your household to have a separate bedroom then you should make an application for a discretionary housing payment.

Most local authorities have a form on which to request discretionary housing payment. If your authority does not, write a letter instead.

The authority may ask for detailed information about your circumstances and those of your household. Explain these fully, e.g. any disability needs you have, as otherwise the authority could take into account the fact that you receive state benefits, such as disability living allowance, when deciding on your discretionary housing payment request (even if housing benefit rules would normally ignore these).

The housing benefit appeals system does not apply to discretionary housing payment, but you have the right to ask the authority to look again at its decision if you are dissatisfied.

Legal challenge to the bedroom tax

In February 2014 the Court of Appeal upheld an earlier High Court decision that the bedroom tax rules are not a breach of human rights for disabled adults.

The earlier High Court decision had accepted that the bedroom tax in relation to adults was discriminatory, but that this was objectively and reasonably justified and therefore lawful because discretionary payments are available to cover Housing Benefit losses as a result of the bedroom tax. As a result there was no breach of human rights.

For more on the judgement see www.leighday.co.uk/News/2014/February-2014/Bedroom-Tax-challenges-to-continue-following-Cou

The DWP has produced a summary of decisions relating to the removal of the bedroom tax at https://www.gov.uk/government/publications/hb-bulletin-u42014-removal-of-the-spare-room-subsidy-upper-tribunal-decisions.

Where can I get more help or information?

This factsheet is a basic overview of the bedroom tax. You can find out more detailed information in our Disability Rights Handbook. This and all our other publications are available from our shop at https://crm.disabilityrightsuk.org/. You can also place orders by contacting Disability Rights UK.

You can get help and information at your local advice centre, such as a Citizens Advice Bureau. You can get more information about where to get personal advice from our Factsheet F15 - Getting advice. All our factsheets are free to download on our website at www.disabilityrightsuk.org.

Tom Royston of Garden Court North Chambers has produced a useful briefing on bedroom tax case law (up to 28 February 2014) available @ 

www.gcnchambers.co.uk/news/bedroom_tax_update_winning_bedroom_tax_cases

Nearly Legal has a regularly updated page of bedroom tax appeal decisions at http://nearlylegal.co.uk/blog/bedroom-tax-ftt-decisions/

The websites www.homeswapper.co.uk and  www.houseexchange.org.uk has been set up to help tenants who are looking to swap their home, for example if you wish to swap your tenancy to one for a property with fewer bedrooms.

Wellhouse Housing Association has produced an online comic, which you can download at http://www.wellhouseha.org.uk/index.php?id=169. Although aimed at Wellhouse tenants it is useful in explaining the rules simply and what you can do if you are affected by the tax, though crucially it omits mention of discretionary housing payment.

You can view the Discretionary Housing Payments Guidance Manual at www.dwp.gov.uk/docs/discretionary-housing-payments-guide.pdf. The DWP also has a selection of factsheets, on the bedroom tax, which are aimed at local authorities and advisers. You can get these at https://www.gov.uk/government/collections/local-authorities-removal-of-the-spare-room-subsidy.

The DWP has been monitoring bedroom tax appeal decisions and has announced its intention to take two earlier decisions in Fife to the upper tribunal.

Ken Butler
30 September 2014