4 bed property 6 residents still under occupying

We have a couple with 4 children, boy aged 10, girl aged 8 and twin boys aged 3. Twin boys have shared bedroom since birth, now expected to be split up and share with siblings.  HB have suggested an appeal, have not indicated if they will support with DHP. Regulations are clear, they are expected to share, is it worthwhile appealling or just another example of how ridiculous the rules are and the impact on family life that needs to be communicated in a long list of true impact on people who did not plan their lifes around the possibility that their homes could be deemed to be too large if they had the luxury of a spare room or a room for each child.

On what grounds would you appeal ?  [ bearing in mind of course that there is no reason at present for the family sleeping arrangenment to change at all, it would only be if they had to actually move to a smaller house that any thing need change, and that would of course depend on you showing that the 14% premium could not be met by the family in order to stay in theri current home !!]

Actually the regulations are not clear.  This is one of those cases where the number, ages and gender mix of the children can give different outcomes when you apply the size criteria, depending on how you “parcel up” the kids.  If the twins are kept together, and the other two cannot share because they are different sexes and one is over ten, then you have your 4 bedrooms (with one for the parents). If you split the twins between their older siblings then you can obviously fit all the kids into two bedrooms.  But to me that looks pretty counter-intuitive and unreasonable.

I would be arguing that both decisions are equally open to the local authority and they should therefore take the one which is most beneficial to the claimant.  They may not like it because I’m betting that their software has defaulted to the less generous option, but software isn’t the law, and they cannot delegate their decision-making authority to a computer!

There is definitely some merit in Andy’s suggestion and nothing to lose by running on appeal onm that basis.

Reg B13 says that “each person shall come within the first category only which is applicable”.  The categories are, in order:

(a) a couple (within the meaning of Part 7 of the Act); .
(b) a person who is not a child; .
(c) two children of the same sex; .
(d) two children who are less than 10 years old; .
(e) a child,

One way of interpreting that is to say that any way you slice it all the children come first into a category for which a shared bedroom is allowed, therefore the Regs allow two shared bedrooms.  This interpretation does not require the Council to say who shares with whom, just that every child could in principle share a room:

- The 10-year-old boy first comes into category (c) because he has a same-sex sibling under 16.
- The three-year old boys first come into category (c) because they have same sex siblings under 16
- The girl first comes into category (d) because she is under 10 and has siblings under 10.

The other way of interpreting it is that you chalk off the members of the family one-by-one nominating actual pairings as you go along.  By that method, it makes a difference which child you start with.  If you start with a three-year-old, the first compatible room mate in cat (c) could be his twin brother.  After chalking them off you are left with two children in cat (e) who cannot share a room because neither would fall in cat (c) or (d) if there is only the pair of them left.  But if you start by pairing a three-year-old with his 10-year-old brother, you are left with a viable cat (d) pairing; and if you start with either of the older children you get two viable pairings.

So the ground for appeal would be that the cumulative chalking-off method is correct and that it is appropriate in this case to begin by chalking off the twins.

That would make the regulation otiose, I am afraid any tribunal or court might well consider that those arguments have become prey to sophistry, but good luck anyway

I don’t see that it makes the regulation otiose at all: that family could still be over-accommodated if they had more than four bedrooms.  And in order for the optimum pairing approach to make a difference you do have to have a particular set of facts to begin with: an even number of children made up of odd numbers of each sex with at least one under 10 and that is comparatively rare.

For most families the “chalking off” approach would always arrive at the same conclusion irrespective of which child you start with.

Yes…granted that if the council takes the “abstract” approach of saying “all the kids have a sharer; you sort it out”, then it is a hard one to win.  If you take the “each separate decision on each occupier has consequences for the rest” approach, it is easier.  I know that some authorities also take the view that you start with the eldest child and work down, but again all this is down to interpretation.

I don’t see that there is any thing in the regs that ‘allows’ for the tenant to specify which children should be nominated to share.Hence my comment that if tenants can do so it renders the regs otiose, but I guess the only way to test it is by a legal chellenge.

WB-room - 15 May 2013 11:05 AM

I don’t see that there is any thing in the regs that ‘allows’ for the tenant to specify which children should be nominated to share.Hence my comment that if tenants can do so it renders the regs otiose, but I guess the only way to test it is by a legal chellenge.

I’m with Anorak and Andy on this one.

Both ways of allocating the children are fully consistent with the regulations : one way results in 4 rooms the other 3. It’s not a question of the tenant ‘choosing the allocation method’ it’s just that there are two right answers.

(This ambiguity has been around since LHA came in but I’m not aware of any case law.)

So why would a LA choose the 3-bed option (and so risk further pressure on their DHP budget) when the 4 bed option is in accordance with the regs?

Note that UC (which allocates on an analogous basis) has an additional overarching provision to ensure that only the lower result is emerges. (If the HB regs weren’t ambiguous in this respect then UC regs Sched 4 para 10(2) reg *would* be otiose.)

I geuss the proof will be in the pudding, when all of these challenges are eventually decided,[ also wondering why no case law comes to mind if this is a historical issue ]
I fear that some claimants hopes will be raised high only to be dashed on the rocks of reality.

WB-room - 16 May 2013 10:08 AM

I geuss the proof will be in the pudding, when all of these challenges are eventually decided,[ also wondering why no case law comes to mind if this is a historical issue ]
I fear that some claimants hopes will be raised high only to be dashed on the rocks of reality.

Yes - and an appeal might not be the best approach as the LA could entirely correctly demonstrate that allocating 3 beds only is consistent with the regs. It might be better to trying to explain to the LA that they could allocate 4 rooms if they wanted to (and could defend that decision to their auditors).

One reason why the real-life-pairings chalking off approach may be preferable is that it guarantees an actual calculated number of bedrooms.

The alternative approach of looking at each child in isolation does not necessarily take you to a number of rooms.  For example, you have three children under 10.  Each one of them comes first into category (c) or (d), so how many rooms does that make?

But if you nominate them as a 2 and a 1, the process reaches a conclusion of two bedrooms.

Indeed Lissin Grove, I think you have hit the nail on the head, if the regs can be interpreted either way it is up to a Tribunal to decide the issue, and of course the intention behind the regs is to limit the number of rooms allowed, that intention must be in the mind of any Judge deciding which side of the fence to fall, and what we least need is a string of adverse decisions to set precedent,.Far better to negotiate where we can with the LA and try to mitigate the effect on the claimant when negotiation fails. I am all for challenging bad decsions but some times we have to choose our battles with an eye to the big picture