Forum Home → Discussion → Housing costs → Thread
Bedrooms and the ‘bedroom tax’ etc.
I’m not a housing person but I’ve been kicked into thinking a little around some of the issues around the number of bedrooms and the consequential benefit impact. This bit below is a ‘stream of consciousness’, first stab at this, I’m hoping to develop further with others’ thoughts.
If I understand the issues (and I’m not a housing person) then landlords have financial issues around redefining bedrooms, for capital and revenue reasons. Tenants have issues around bedrooms for benefits and space reasons. The benefit regulations are assumed to depend solely on the landord’s description (Although I don’t think this is necessarily true – see later). If landlords could find a way of being flexible around defining or describing rooms for individual tenants then the tenants’ problems might be largely circumvented.
Looking at the regulations, it’s absolutely clear how many bedrooms a claimant is entitled to. Any issue is focussed on how many bedrooms they actually have.
‘Bedroom’ is not defined in the Interpretation Act, the Welfare Reform Act or the regulations and therefore takes its normal meaning.
The Rent Officer Handbook has the following (not updated since 2009 apparently)
“Deciding what constitutes a room / bedroom
There are no statutory definitions of what constitutes a room or bedroom, so a plain English meaning should be taken.
A bedroom is a room where someone usually sleeps, however they may also use it for other activities such as working. A living room is a room for sitting or eating or watching the television. Sometimes one can be used as the other, and in general lettings can take different forms depending on the nature of the locality and the type of tenant either in occupation or being targeted by a landlord.
Under the Housing Benefit Scheme, rent officers treat bedrooms and rooms suitable for living interchangeably, Local Reference Rents are based on total number of habitable rooms (bedrooms and living rooms, but including dining rooms, some conservatories and living kitchens.
Under the Local Housing Allowance Scheme, the LHA is based on numbers of bedrooms alone. Therefore it will be vital when collecting lettings information to understand precisely how the property is being let to ensure the lettings information is used correctly and not to distort the LHA.
For example a 3 bedroom, 2 living room property may be let as 3 bedrooms to a family, but in a student area may be let as 5 bedrooms with each living room being let as a bedroom. The rent for each type of letting could vary considerable. In the latter case the 5 bedroom letting would be included in the LHA evidence for 5 bedrooms, but if let to a family, would be included in the 3 bedroom evidence.
For LRR purposes, the letting in both instances would be included in the 5 room LRR category.
The simple test to apply is, for this type and size of property in this or a similar area, how has the property been let, and how do occupants use the accommodation? The size of the room is irrelevant. A room that would never be thought of as a bedroom or living room in a large country house might well be perfectly acceptable to most people, for those same uses, in an expensive, densely populated city.
The following guide may be helpful:
Dining/kitchen
A large farmhouse-style kitchen probably is a living room. A small galley kitchen probably isn’t.
Otherwise, it will depend on the way the occupants use the room and what is the norm for use in that area.
For example, a kitchen which has a distinct dining area with a table and chairs and perhaps a different floor covering may well be considered a living room. But it is a matter of a Rent Officer’s skill and judgement that matters, not the firm application of any definite criteria.
Boxroom/Study
Do most occupants in this type of dwelling use either of these as a living room or a room to sleep in? If they usually do, they should be included as appropriate.
An indicator that a room can be used as a bedroom could be that at least a small single bed will fit into it, and in most cases it will have a window. Again, the application of a Rent Officer’s skill and judgement is the over-riding determining factor.
Cellars/loft spaces with no ceilings/Utility Rooms
Are unlikely to be bedrooms or living rooms.
There are a number of things such as natural light, ventilation, safe access, head height and floor space which you can take into account, but not depend on.
The over-riding deciding factor is always how most people use the type of room in question in that area.
Through Rooms
Two former living rooms knocked into one become one room.
If there are substantial dividing doors actually in place, or only a very narrow door-width access between the two, and the space is used as two rooms, then they should be counted as two rooms.
The original layout of the dwelling is irrelevant and should not be considered.”
<out of space - end of part 1>
Part 2 - Cont.
I see some interesting points in this, although it’s important to recognise that this is guidance not law.
“Therefore it will be vital when collecting lettings information to understand precisely how the property is being let to ensure the lettings information is used correctly.
For example a 3 bedroom, 2 living room property may be let as 3 bedrooms to a family, but in a student area may be let as 5 bedrooms with each living room being let as a bedroom. The rent for each type of letting could vary considerable. In the latter case the 5 bedroom letting would be included in the LHA evidence for 5 bedrooms, but if let to a family, would be included in the 3 bedroom evidence.”
This seems to prioritise the landlord’s view of the property; this precedent is not set down in the UC regulations (I haven’t compared the HB regulations).
“The simple test to apply is, for this type and size of property in this or a similar area, how has the property been let, and how do occupants use the accommodation? The size of the room is irrelevant. A room that would never be thought of as a bedroom or living room in a large country house might well be perfectly acceptable to most people, for those same uses, in an expensive, densely populated city.”
This seems to introduce a less clear definition - ‘...how has the property been let, and how do occupants use the accommodation’ - without advising on differences between letting criteria and use.
It also pronounces that ‘The size of the room is irrelevant’. Can guidance, such as this override the space standards for overcrowding set out in the Housing Act (1985)? Doesn’t it also contradict the later section – “There are a number of things such as natural light, ventilation, safe access, head height and floor space which you can take into account, but not depend on.”?
The Housing Act (1985) lists the number of people who can sleep in rooms of various sizes:
• more than 110 sq feet (10.2 sq metres approx) = 2 people
• 90 - 109 sq ft (8.4 - 10.2 sq m approx) = 1.5 people
• 70 - 89 sq ft (6.5 - 8.4 sq m approx) = 1 person
• 50 - 69 sq ft (4.6 - 6.5 sq m approx) = 0.5 people.
• Less that 50 sq ft = not suitable as sleeping accommodation
Children under one year old are not taken into account and children between the ages of one and ten years count as half a person.
I see a number of issues arising:
Challenging / determining the number of bedrooms in a property.
What does ‘area’ mean in the Rent Officer guidance? As the guidance is not solely related to LHA then it does not, presumably, equate to the BRMA. Would a locality where a housing association lets ‘traditional 3 bed properties’ or ‘hard to let flats’ to single people be an area? If so then might it be entirely legitimate to define such properties as one bedroom:
• Only one room is used for sleeping
• It is being let as a one-bed property if sub-letting is not permitted
• The Rent Officer guidance specifies that similar properties may be defined differently for bedroom numbers by usage and area.
What if a landlord says it’s a 3 bedroom property but the tenant says two, and demonstrates that that is how they use it?
Challenging the sharing of bedrooms.
Burnip, awaiting appeal, shows that the courts are prepared to consider arguments around this issue.
Young children sleeping in separate rooms will define those rooms as bedrooms by use. That clearly satisfies the benefit regulations, which don’t consider the number or age of occupants for the definition of the room.
If a household falls foul of the regulations because of this, having two children under 10, and seeks a two bedroom house from their social landlord what will be the situation of a family where the only two bedroom properties have a second bedroom with an area of less than 70 square feet?
Will it be possible to challenge the over-occupation decision where two children are each alone in a bedroom under 70 square feet?
What other arguments might be used?
[ Edited: 17 Dec 2012 at 02:41 pm by Gareth Morgan ]What does 0.5 of a person mean?
What does 0.5 of a person mean?
A child between 1 and 10. So a one and a half person room you could put 1 person over 10 and one under 10 (or 3 under 10s) and it would not be overcrowded.
I don’t know whether this helps, demonstrates, or just further muddles up the situation, but this is our local authority’s choice based lettings list this week (be quick, it’ll only be there til Wednesday night!)
(Tinyurl used because the council’s one kept breaking)
Note the property on bottom left, 3 bedroom, 4 person maximum. How’s that going to play out in the bedroom tax regs? The family who get this house will be overcrowded if they have more than 4 people, but it takes some creative thinking to find a way that you could avoid being overcrowded without falling victim to the bedroom tax. (lone parent of 3, or family with 2 teens of opposite sex) These are the kind of situations that were never considered.
[ Edited: 18 Dec 2012 at 10:43 am by Lorraine Cooper ]What I’m trying to fumble towards is an argument, if there is one, for a tenant’s view of the number of bedrooms they have to be taken into account. It seems possible, if uncertain, to propose that the number of bedrooms might depend upon their situation or viewpoint.
If a landlord lets a 3 bed house to a single person, at their 3 bed rent without permission to sublet, then only one bedroom could be used. From the tenant’s perspective that would make it a one bed property. Is it feasible to separate the factors they use to set the rent from the usable number of bedrooms for individual tenants?
I have a client who has recently moved to a house with an extra ‘bedroom’ so that she can use this room for home peritoneal kidney dialysis. This room must be kept spotless and will not be used for anything else, including sleeping.
Is it still a bedroom? There are other identical local properties owned by the same housing association, and no doubt the equivalent rooms are used for sleeping, but this house was only allocated to the tennant so that she could use this extra room for dialysis so the landlord must have been aware that the room would not be used for sleeping.
It looks like its worth appealing if her rent does get restricted.
I spoke to a single parent today - working and claiming tax credits and HB - who suggested that the bedroom tax could be avoided by having another baby…
Yeah, that would do it. As would moving into a “suitably-sized” private rented dwelling….and getting considerably more HB than for the “oversized” social sector dwelling.
Joined-up thinking eh?
I’ve just come across an interesting scenario- sort of a variation on the theme. Client has significantly disabled partner. No overnight carer required (though client/partner sleep in different bedrooms due to the nature of partner’s disability) so I can’t see any way of them avoiding being caught by the tax. Major disability adaptations were made to bathroom. Cost of this was covered in full but one of the clauses for this was that they remained in the property for 5 years after the adaptation completed. Apparently (haven’t seen details yet) there’s a financial liability on client/partner if they don’t comply with this. So either they stay for the full five years (they’ll probably get a DHP for the first 6 months but there’s another 3.5 years to run) or get clobbered with a charge for the bathroom…
There’s a blog piece today at http://http.speye.wordpress.com/2013/01/20/is-the-bedroom-tax-unlawful-yes-it-must-and-has-to-be/ which is commenting on bedroom sizes.
I’ve been looking at this point as well and it’s interesting.
Over 20 years ago the Lifetime Homes Standards were designed to try to make new houses
or flats adaptable to the changing needs of most households (e.g. the onset of disability
or illness, the arrival of new children, or accidents), thus preventing unnecessary
house moves and the upheaval these represent. At about the same time the Housing
Corporation put detailed criteria relating to the size of rooms in their funding conditions, without actually specifying particular room sizes, e.g. criterion 1.21.29, “Can beds in all bedrooms be
accommodated in more than one position?”.
More recently the National House-Building Council (NHBC), which sets standards for
the private house-building industry, used to recommend that a single bedroom should
have space for a bed, a bedside table, a chest of drawers and a wardrobe. The
Housing Corporation adds a table (0.50m by 1.05m) and a chair to the NHBC’s list.
The NHBC used to define the “standard size” of a single bed as 0.75m by 1.9m, while
the Housing Corporation’s later Housing Quality Indicators sets this as 0. 90m by 2.00m.
The NHBC actually introduced a short lived standard where the minimum size of a
double bedroom was 9 square metres: bedrooms measuring less than 9 square
metres were described as ‘one-bed spaces’ and bedrooms measuring over 9 square
metres were described as two-bed spaces (as long as all walls were no less than 2.7
metres wide).
The best standards now seem to be based on the national guidance published by the Chartered institute of Environmental Health.
“Bedrooms within shared houses
Occupied by one person
With separate living space 6.5 m sq ( 70 sq ft)
Without separate living space 9.0 m sq (100 sq ft)
Occupied by up to two persons
With separate living space 10.0 m sq (110 sq ft)
Without separate living space 14.0 m sq (150 sq ft)
The size alone may be misleading. It is important that the shape and layout of the room allows for a standard size bed, wardrobe, desk and chair to be accommodated with enough extra space for circulation. “
Although this seems to be focussed on shared housing it would be perverse to suggest that a space smaller than the “With separate living space” would be acceptable.
Oops, I seem to have cut off the bottom half of my, too lengthy bit. ‘ere ‘tis
I think though that, coming back to it in more detail, the most useful bit of legislation is the Housing Act 1985, and specifically Section 10.
“OVERCROWDING
Definition of overcrowding
324 Definition of overcrowding.
A dwelling is overcrowded for the purposes of this Part when the number of persons sleeping in the dwelling is such as to contravene—
….
(b)the standard specified in section 326 (the space standard).
…
326 The space standard.
(1)The space standard is contravened when the number of persons sleeping in a dwelling is in excess of the permitted number, having regard to the number and floor area of the rooms of the dwelling available as sleeping accommodation.
(2)For this purpose—
(a)no account shall be taken of a child under the age of one and a child aged one or over but under ten shall be reckoned as one-half of a unit, and
(b)a room is available as sleeping accommodation if it is of a type normally used in the locality either as a living room or as a bedroom.
(3)The permitted number of persons in relation to a dwelling is whichever is the less of—
…..
(b)the aggregate for all such rooms in the dwelling of the numbers specified in column 2 of Table II in relation to each room of the floor area specified in column 1
No account shall be taken for the purposes of either Table of a room having a floor area of less than 50 square feet.
…
Table II
Floor area of room Number of persons
110 sq. ft. or more 2
90 sq. ft. or more but less than 110 sq.ft . 1½
70 sq. ft. or more but less than 90 sq. ft. 1
50 sq. ft. or more but less than 70 sq. ft. ½
….
Responsibility of occupier
327 Penalty for occupier causing or permitting overcrowding.
(1)The occupier of a dwelling who causes or permits it to be overcrowded commits a summary offence, subject to subsection (2).
…..
(3)A person committing an offence under this section is liable on conviction to a fine … in respect of every day subsequent to the date on which he is convicted on which the offence continues.
….
Responsibilities of landlord
331 Penalty for landlord causing or permitting overcrowding.
(1)The landlord of a dwelling commits a summary offence if he causes or permits it to be overcrowded.
…”
This clearly defines how many people, and of what ages, can use a room of a particular size and that an offence is caused by the occupier and / or the landlord if they breach that.
Unfortunately there is guidance (non-statutory) which says
“8.26. Section 177(2) provides that, in determining whether it is reasonable for a person to continue to occupy accommodation, housing authorities may have regard to the general housing circumstances prevailing in the housing authority’s district.
8.27. This would apply, for example, where it was suggested that an applicant was homeless because of poor physical conditions in his or her current home. In such cases it would be open to the authority to consider whether the condition of the property was so bad in comparison with other accommodation in the district that it would not be reasonable to expect someone to continue to live there.
8.28. Circumstances where an applicant may be homeless as a result of his or her accommodation being overcrowded should also be considered in relation to general housing circumstances in the district. Statutory overcrowding, within the meaning of Part 10 of the Housing Act 1985, may not by itself be sufficient to determine reasonableness, but it can be a contributory factor if there are other factors which suggest unreasonableness.”
A court decision, Harouki v Royal Borough of Kensington & Chelsea [2007] EWCA Civ 1000, decided that the guidance allowed overcrowding to continue because “In those circumstances the Housing Review Officer was fully entitled to look at the prevailing circumstances in the borough, including the unfortunate extent of overcrowding in the borough, and, consequently, having properly had regard to the family’s personal circumstances and ill health, he was not acting illegally or irrationally in concluding that it was reasonable to require Mrs Harouki and her family to continue to occupy the flat until it was her turn to be rehoused under Part 6”
My worry is that this will allow bedroom tax overcrowding, just because it will be common, and that landlords will be able to move families into properties that are too small under the act therefore.
[ Edited: 22 Jan 2013 at 11:25 am by Gareth Morgan ]Steven Flint has pointed me at the LACORS guidance which a lot of LAs are using to define minimum standards.
http://www.lacors.gov.uk/lacors/upload/22755.pdf
It seems a useful document.