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When is a Bedroom not a Bedroom? The Big Bedroom Tax Debate

About The Author

Amy Ling (Former Private Law Manager)

Amy graduated with a first in Philosophy from The University of Manchester in 2012. Following three years working within the social housing sector, Amy is currently studying for her LPC and will begin a training contract at a city firm in September 2016. Amy is an accomplished mooter, and was on the winning team in the 2015 JustCite International Mooting competition. Outside of the law, Amy is a keen runner.

Laying the Foundations

Imagine an older couple whose children have left home, living happily in a three bedroom house at one end of the street whilst a single mother of four languishes on a waiting list whilst struggling to manage in a two bedroom house across the road. All funded by you, the tax-payer, through housing benefit.

Put like this, it is hard to ignore the moral case for better management of the social housing stock for the benefit of both the occupants and those who fund it.

Whether you prefer to call it the ‘Removal of Spare Bedroom Subsidy’, ‘Under-Occupation Penalty’ or ‘Bedroom Tax’, the very purpose of this part of Ian Duncan Smith’s flagship welfare changes is to address the problem of overcrowding whilst reducing our welfare budget in a time of austerity. Writing recently in The Telegraph he argues:

Our social housing stock is squeezed and we need to use it better. That means we need to put an end to the unfair situation where the taxpayer is subsidising people to have homes, paid for by the state, with spare rooms they do not need… [w]e will be able to make better use of our social housing stock, and help more families into their own home whilst keeping the welfare budget sustainable.

The result is an amendment to the Housing Benefit Regulations 2006 that households living in properties “with spare rooms they do not need” receive a 14% reduction in their housing benefit where there is one spare bedroom and a 25% reduction in cases where there are two or more bedrooms classed as ‘spare’.  The number of rooms needed by each type of person is set out in B13(5) (a)–(e) which specifies criteria such as the nature of relationship (couples should share a room), age (children under 10 to share a room) and gender (children of the same sex share a room).

Few, especially those within the social housing sector, would disagree that providing incentives and disincentives to under-occupiers is a great way to stimulate movement in communities, so how and why has the Bedroom Tax become so controversial and subject to legal challenge?

A Problem of Definition

On the face of it, it seems straight-forward; those with too many bedrooms receive a reduction in welfare payments. They either meet the shortfall themselves or agree to move to a smaller property. Just a few simple ingredients are required:

  1. A definition of a bedroom which we can use to calculate who is under-occupying
  2. Properties for those who are identified as under-occupying to move to

The lack of available smaller properties, especially one-bedroom properties, is well documented.  So too, are the topsy-turvy cost implications where tenants cannot afford to live in their council owned property are moved into a one-bedroom property in the private sector, at a higher overall cost to the taxpayer.  

However, the more fundamental problem lies in the fact that there is no legislative definition of what a bedroom is.

The responsibility for providing a workable definition was laid with landlords, who have made use of the existing definitions of bedrooms as set out in the ‘room standard’ and ‘space standard’ of ss325 -326 of the Housing Act 1985. The provisions define over-crowding on the basis of units (a person may be anything from 0 to 1 units) and square footage (e.g half a unit has a minimum requirement of 50sq metres) within the building.

However, following a raft of tribunal cases in which this definition has been evoked, the Department for Work and Pensions (DWP) issued an Urgent Briefing in September 2013 in which they made clear that for assessing under-occupancy:

…the only consideration should be the composition of the household and the number of bedrooms as designated by the landlord, but not by measuring rooms

The logic in preventing the application of the over-occupancy rules lies in that 326(2)(b) allows for living rooms to also count as “available as sleeping accommodation”. If living rooms were allowed to count as bedrooms, then nearly all those who were not over-occupying would suddenly become under-occupiers. In such a situation, enforcing such a reduction in housing benefit could have an unnecessarily punitive effect and send out an unsavoury message about the poor not having a right to a communal non-bedroom space in their home.

However, the alternative offered in the briefing fails to resolve the matter:

In determining whether or not a room is a bedroom the landlord may consider a number of factors, but one of these must be whether or not a room is large enough to accommodate at least a single bed

The standard square footage of a single bed is a little more than 18 sq ft. Even accounting for the possibility of an inward opening door, this is far less than the minimum square footage allowed under the space standard for a child under the age of 10, which is 50 sq ft. It would be illogical for  a room to  be a bedroom for the purposes of the bedroom tax if to occupy it would mean the property is being over-occupied.

Further Legal Challenge

In the wake of this briefing note, there has been a further wave of legal challenges which have created more competing definitions of a bedroom.

In January in Islington, a tribunal determined that a second room would not be considered a bedroom because the room was less than 50 sq ft and that it was not used as a bedroom. Again in January, a tribunal in Rochdale decided that despite the fact that a tenancy agreement and housing benefit application was signed by the tenant as having two-bedrooms, the property should be considered as one-bedroomed on the basis that the appellant had never used the second room as a bedroom, and considered the property to be a one bedroom flat.

In February 2014, a tribunal inMonmouthshire determined that a house had 2 bedrooms rather than the 4 the landlord stated on the basis that the disputed ‘bedrooms’ did not contain beds, could only be used by children under the age of ten and would not be able to be let to a lodger. In an interesting echo of the reasons why the over-occupancy rules should not be applied, Rolt J stated that the fact that a room is slept in on rare occasions “does not make that room a bedroom any more than putting a sleeping bag on the floor of a living room”.

In January 2014 an  appeal case in the Upper Tribunal concerning whether a daughter who slept in the living room could be considered an over-night carer sleeping in an extra room, West J engaged the dictionary definition of ‘bedroom’ in determining whether a living room could count as a bedroom:

The word “bedroom” is not defined in the legislation. It is an ordinary English word and should be construed as such. According to the dictionary definition in the Shorter Oxford English Dictionary a bedroom is “a room containing a bed”, whilst in the Collins Dictionary it is “a room furnished with beds or used for sleeping”. In the Merriam Webster Dictionary it is “a room used for sleeping” and in Webster’s Dictionary it is “a room furnished with beds and used for sleeping

These challenges have all been on the basis that the resident disputes the number of rooms the property is designated to have according to the landlord, the very discretion the government afforded to them in its briefing note, which also stated that the number of bedrooms should be set “notwithstanding that the tenant may argue that it has been habitually used for something else”.

Legal Uncertainty

The above cases represent no binding legal precedent, leaving us with legal uncertainty.

Dean Underwood QC, speaking at the Chartered Institute of Housing South East conference this month has argued that the issue of a definition of a bedroom “will have to make it to the Court of Appeal in 2014… I would even put my head on the block and say I think the approach they [the first tier tribunals] have adopted is wrong”. He disagreed with the method of transposing the over-crowding criteria and argued “I don’t think you can credibly look at the way a tenant has used the bedroom, because that would allow tenants to circumvent changes which, whether you agree with them or not, were introduced to make fiscal savings”. His own suggestion is that an approach focussing on the tenancy agreement at the outset would prove a good legal test. This would no doubt be an extremely practical solution and easy to implement with existing tenancies. However, there is a sense in which this pushes back the problem: the same question as to how the number of bedrooms in a property will be determined for the purposes of writing the tenancy agreement remains. Social landlords are not likely to rush to put their tenants in a position that is likely to vastly increase arrears, damaging their own income streams.

Spare Rooms They Do Not Need

What we perhaps should remind ourselves at this point is of the quote above from Ian Duncan Smith: “we need to put an end to the unfair situation where the taxpayer is subsidising people… with spare rooms they do not need”.

I would argue that the reason why the Bedroom Tax has become so controversial and so challenged so often is that the regulations are being used as a blunt and clumsy tool. It is unable to cope with the disabled couple with extensive medical needs or complex family situations. We can see that the courts have tried to cope with this in looking for definitions that not only weave a clear way through the confusion about how to define a bedroom, but ultimately to get justice for the often vulnerable tenants involved.

The purpose of welfare is to ensure a minimum standard of living for those who may not have the means to provide for themselves. Each person and household in need of welfare support is likely to be so due to a multitude of interlocking factors. For this reason, to implement such a policy requires an assessment of the individual facts of that case, determining what space the household truly needs and therefore can reasonably expect to be provided with. It is true that with such a conception cases such as the Rochdale one above, may have been decided differently.

For now, we will haveto keep watching over the coming months to see if the Court of Appeal challenges materialise, and where they will lead us.

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Tagged: Housing Law

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