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Bedroom tax size appeals
Now there have been a number of successes with size appeals where the rooms are under 50 or 70 square feet, I think we should be more bullish in arguing the case for appeals where the bedroom cannot be used as a double room (i.e. under 110 square feet). The argument is that B13 presupposes a room big enough to accommodate a couple or two adolescents. In certain cases this would have a very practical effect on clients. For instance, a couple with two teenage boys in a three bedroom house. It would not be unusual for two of those bedrooms to be less than 100 square feet - still be reasonable sized single rooms. However, they are considered to be one bedroom over, because the boys should be sharing. Their only alternatives to avoid the bedroom tax are to move to two bedroom accommodation and unless in the new accommodation both bedrooms are over 110 sq ft they will then become overcrowded (1985 and 2004 Housing Acts), or take in a lodger in which case the boys will be sharing a bedroom and they will again be overcrowded. However, even in cases where this has no practical effect (e.g. a couple with one child) we should be arguing that the bedroom in principle needs to be this big - as the bedroom definition surely needs to apply across the board? Obviously we do individual appeals on the facts of the case, and the stronger the case the better, but it would be a legislative nightmare if there were a whole set of acceptable bedroom sizes for bedroom tax purposes mirroring the overcrowding standards. Ruth
Ruth this is a good site with access to the rulings
http://nearlylegal.co.uk/blog/bedroom-tax-ftt-decisions/
Hope it helps
Thanks Bryan, I do use the Nearly Legal site - it is excellent in documenting the on-going appeals and decisions on the bedroom tax and there is a bit of discussion about it in the most recent document they published. I posted this on Rightsnet really to start a discussion on the issue. Ruth
Now there have been a number of successes with size appeals where the rooms are under 50 or 70 square feet, I think we should be more bullish in arguing the case for appeals where the bedroom cannot be used as a double room (i.e. under 110 square feet). The argument is that B13 presupposes a room big enough to accommodate a couple or two adolescents. . Ruth
Ruth, I can see no basis for arguing 110 sq ft. In fact, it is difficult to see why 70 sq ft has become a norm - presumably on the ‘suitable for a lodger’ basis, which is not, of course, statutory.
B13(5) says:
(5) The claimant is entitled to one bedroom for each of the following categories of person whom the relevant authority is satisfied occupies the claimant’s dwelling as their home (and each person shall come within the first category only which is applicable)—
(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,
and one additional bedroom in any case where the claimant or the claimant’s partner is a person who requires overnight care (or in any case where each of them is).”.
So, no requirement that the room is suitable for a couple for a room to be counted as a bedroom for entitlement purposes, the minimum requirement is that it is suitable for ‘a child’. And depending on age, that could be 50 sq ft under the Housing Act 1985 Part X size assessment provisions.
I can’t see any basis for successfully arguing that the regs presuppose a room suitable for a couple, I’m afraid.
Would you argue it in the example I gave - a three bedroom house with bedrooms of, say, 120 square feet 100 square feet and 70 square feet - and a couple with two teenage boys? Currently they are considered to have one spare room. However neither of the two smaller rooms would be considered adequate for two people, either in terms of the 1985 Act or the HHSRS Operating Guidance attached to the 2004 Act. Ruth
It might have legs in that situation, yes. But then you are effectively arguing a form of overcrowding, and you are facing the express terms of the Regs - rather than arguing that an empty room is not big enough to be considered a bedroom, you are arguing for an extra bedroom entitlement, despite the express provisions of the regs.
I suspect this would be much, much harder to succeed on than saying ‘this room isn’t big enough to be a bedroom’. You also have to bear in mind that in arguing overcrowding, the HA 1985 assessment would consider ALL the rooms in the property as potential sleeping areas, including living rooms. So you may also face the counter argument that another room is of adequate size for the two sons, even if a particular bedroom is accepted as not being.
Basically, you would be trying to establish a room size standard for actual occupation. And that will be an uphill battle.
Can I just say welcome to Nearlylegal. Rare I know, but thanks for helping out.
Thank you. It is true I am only rarely helpful 😉
I think my argument would go like this: Although there is no definition of bedroom in the Regulations, Reg B13 presupposes a room large enough to accommodate a couple or two teenagers. We do not expect this piece of legislation to contradict other UK legislation, including Health and Safety legislation. Therefore we have to look at what other legislation says about the size needed to accommodate two teenagers. Looking at Health and Safety legislation I would argue that a room is not a bedroom if it is for any reason dangerous for it to be a bedroom (and in certain circumstances a Prohibition Order would be served on the property if it were used as a bedroom). In addition to not having a boiler in the room, having safe electrics, having a roof, a window, not being a fire hazard, not too cold, etc , it has to meet the statutory size standards for sleeping accommodation for two teenagers. Although these are set out in the 1985 Act, I think in many ways the 2004 Housing Act might be more useful because, through Housing Health and Safety Rating System it lays a duty on the Local Authority to estimate and take action on hazards, including Hazard 11 “crowding and space”. It’s pretty clear from the Operating Guidance that if a 3 bedroom house as I described were assessed, adding one more occupant would make it overcrowded and place some enforcement duty (not necessarily a Prohibition order but some action) on the Local Authority. So I suppose the essence of my argument is that for Housing Benefit Regulations a bedroom must be of the size and standard which other legislation regards as safe for a bedroom. Ruth
I think my argument would go like this: Although there is no definition of bedroom in the Regulations, Reg B13 presupposes a room large enough to accommodate a couple or two teenagers. We do not expect this piece of legislation to contradict other UK legislation, including Health and Safety legislation. Therefore we have to look at what other legislation says about the size needed to accommodate two teenagers. [...] Although these are set out in the 1985 Act, I think in many ways the 2004 Housing Act might be more useful because, through Housing Health and Safety Rating System it lays a duty on the Local Authority to estimate and take action on hazards, including Hazard 11 “crowding and space”. It’s pretty clear from the Operating Guidance that if a 3 bedroom house as I described were assessed, adding one more occupant would make it overcrowded and place some enforcement duty (not necessarily a Prohibition order but some action) on the Local Authority. So I suppose the essence of my argument is that for Housing Benefit Regulations a bedroom must be of the size and standard which other legislation regards as safe for a bedroom. Ruth
Ruth - B13 just doesn’t presuppose a room large enough to accommodate a couple or two teenagers, as in my first response. And that is where the argument falls down.
Also the room sizes mentioned in the annex to the LACORS guidance to the HA 2004 HHSRS provisions are expressly stated to be draft thoughts towards a possible room size standard that doesn’t exist yet (and still doesn’t). They are no part of legislation. They are not part of any bedroom size safety standard, beyond being a suggestion.
Your hypothetical 3 bed would not be overoccupied for HHSRS by adding another person. The other person could sleep in the living room.
There are a lot of leaps in your argument, and I’m not confident that any of the bits of it stand up separately, let alone together. It may well be worth a shot, but it has to be high risk.
I agree all these arguments need to be met. Taking them one at a time, I am not clear why you say that B13 does not presuppose a room large enough for a couple (or two teenagers). If B13 (5) says that one room is allocated for each of the following groups ... an adult… two children under ten….etc etc, surely it presupposes that the bedroom is large enough to accommodate them. For instance, take my couple with the two teenagers - according to HB regs, they need two bedrooms. Surely then we have to assume an implicit definition of a bedroom that is able to accommodate them? The DWP has already conceded in some very confused guidance notes, that you have to be able to fit a single bed into it. But surely if it allocates one bedroom to a couple it implicitly assumes fitting in a double bed?
On the LACORS point, LACORS is guidance but it is cautious and reliable guidance to HHSRS which is statutory (that is why LACORS recommends lower standards than those required of new-build) . And although it is true that other than in the 1985 Act there are no absolute figures written down, Local Authorities do act on size standards and these are enforced by the Property Tribunal.
On the living room point, I think I would dispute that even using the 1985 legislation as we are not arguing about whether a dwelling is overcrowded, but whether a specific upstairs room is or is not suitable for sleeping accommodation. However, reading the HHSRS operating guidance, it seems clear that a living room cannot be considered a bedroom
On a slightly different issue, how do you think the other Health and Safety examples would stand up? Given we are talking about Housing Association property which is usually in a better condition than that of private landlords would, say, the presence of a gas boiler or dodgy electrics or damp be a good reason for it not to be considered a bedroom? Ruth
Ruth
B13 does not presuppose a double room. It says one bedroom for a range of possibilities, up to and including ‘a child’ - and that could be a 50 sq ft room under HA 1985 criteria. It absolutely does not suggest or presuppose that *any* ‘bedroom’ has to be large enough to accommodate two adults or teenagers.
Then there is the ‘overcrowding’ point. That the actual bedroom is not large enough for its occupants. Using HA 1985 for that will be very difficult, precisely because the space calculations in Part X apply to the whole property, including living rooms etc. So the property will not be overcrowded on HA 1985 grounds.
That only leaves the issue of whether there is health issue in ‘requiring’ the two teenagers to share a room below 110 sq ft. But there isn’t a health issue in the current property. They aren’t required to share the room - there is another bedroom. If they move to a two bed property, the second bedroom may be large enough - that is an unknown. B13 is not saying people *can only* use the bedroom allocation as bedrooms, just that number being used for HB entitlement.
That said, I think the argument that a room assessed as a bedroom because of two teenagers should at least be big enough to get two single beds into, with reasonable space between them, might well be successful, at least at first instance, simply on the basis of practical need.
Disrepair won’t stand up. There is a remedy - make the landlord fulfil their repairing obligations. A gas boiler, on the other hand would mean a room can’t be a bedroom. HA 1985, Part X again - can’t count as sleeping accommodation a room with a gas fire or boiler.
Yes, the whole point about the bedroom tax is that there is a “spare” room, so it would be almost impossible to argue current overcrowding - the argument would be that if (a) they introduced another occupant or (b) moved to be replaced by a larger family, there would be overcrowding. And this will always be clearer in some situations (eg my two teenagers) than in others. However, having said that, I am sticking to my argument that (in the absence of any other definition of bedroom in the legislation) if you state that one bedroom is allowed for two teenagers (or a couple) the presumption is that any room defined as a bedroom can accommodate any of the persons or groups listed. Otherwise B13 (5) would have to read..
“for a couple (if big enough for a double bed), ” for a baby (if big enough for a cot) and so on.
Although the 1985 Act has the attraction of being straightforward, I think there are possibilities of using the 2004 Act in conjunction with the HHSRS. We maybe should look at some of the Property Tribunals cases where a Prohibition Order has actually been made on grounds of crowding. Thanks for the reference about the gas boiler and the 1985 - I had overlooked that, and I have just today come across a bedroom where that is the case.
I think we will have to see how these appeals pan out in practice now, and of course there are a myriad of differing circumstances. When I started this thread I was hoping to get more comments from different parts of the country, either opinions or experience, and I would be very interested to know if anyone has tried size arguments over 70 square feet, and if so, whether they have been successful at the First Tier. Ruth
Hi Anthony, I must be missing something! - I can find the Gas Safety Regs 1998 and other advice on the HSE website, but can’t find anything about a gas boiler in the 1985 Housing Act. Have read Section X three times now. Can you give me a reference? Thanks a lot Ruth
Hi Anthony, I must be missing something! - I can find the Gas Safety Regs 1998 and other advice on the HSE website, but can’t find anything about a gas boiler in the 1985 Housing Act. Have read Section X three times now. Can you give me a reference? Thanks a lot Ruth
I don’t see anything there either. The HSE say, on their website:
“Since 31 October 1998, any room converted to use as sleeping accommodation should not contain these types of gas appliance:
A gas fire, gas space heater or a gas water heater (including a gas boiler) over 14 kilowatts gross input unless it is room sealed
A gas fire, gas space heater, or a gas water heater (including a gas boiler) of 14 kilowatts gross input or less or any instantaneous water heater unless it is room sealed or has an atmosphere-sensing device
If a room contains either type of appliance and was used as a bedroom before 1998, you need to do a risk assessment to determine if it can still be used as a bedroom.”
Yes, I have that, and I think it is strong enough to put a good case (especially as the boiler cupboard reduces the room space to around 62 square feet.) But it would make it very easy if there is actual legislation prohibiting it (although I might have to move my own lodger out of his bedroom!) Ruth