What is a Bedroom? Understanding Housing Benefit Rules
1. What is a Bedroom?:
Bedrooms and Housing Benefit
Malcolm Gardner, Director Welfare Reform Club
2. Bedrooms and Spare Rooms
• The term bedroom and spare rooms are synonymous because “having a
spare room” means in common parlance that you have a room containing
a bed that is that is available to be used by a guest (or an out of favour
husband) for sleep
• One does not tend to refer to other habitable rooms as “spare”. The
closest you would get to the term would be “utility”, where the function
of the room is undefined. It is a utility room
• The number of bedrooms is generally thought of as measure of size or
status of a property, more so than the number of “parlours”
• For the owner-occupier a home with three bedrooms and a lounge/diner may be
considered of a higher value than a home with two bedrooms and a lounge and a
dining room.
3. Bedrooms and Spare Rooms
• My wife and I bought our home as a four bedroom bungalow
• One bedroom is my office – and it is called “the office”
• But now we are child free we say that we have two spare rooms
• or rooms that are used by guests or visiting children as a place to sleep
• We think of the house as having three available bedrooms
• But we would the sell the property, as we bought it, a four bedroom
bungalow, because that sounds more desirable
4. How Does Under Occupation Arise?
• Under-occupation arises where a family live in a property that is deemed to be too large
for its needs. The size for benefit purposes is usually defined in terms of excess
bedrooms
• The classic cause of under-occupation is older tenants/couples remaining in their home
after their children have grown up and left. Family breakdown can also result in under-
occupation. Also the death of a member of the household
• Some social landlords, particularly in areas with less demand for social housing, will
create under-occupation on initial allocation,
• they offer a household a larger property than the family need. This may arise because of a
mismatch between the size of properties available and households in need of housing or the
landlord may wish to support parents with children who do not reside with them permanently. The
allocation policy may also anticipate increases in family size – thus reducing the pressure for future
transfer requests
• The Private Landlord simply considers whether the tenant can afford to pay the rent for
the size of the property being leased.
• This is why LHA is limited to the requirements of the family coupled to the local rental market rent
5. How Does Under Occupation Arise?
• Social landlords have tended to focus on tackling under-occupation
amongst their elderly tenants.
• This generally takes the form of an incentive to move and assistance with removal
costs
• Good practice guidance on managing under-occupation was published by:
• the Government: April 2000 “Managing under-occupation: A guide to good practice
in social housing”.
• the Tenant Services Authority (TSA) and DCLG October 2009 “Overcrowding and
Under-Occupation: Self-Assessment for Social Landlords”.
• In 2007 the Labour Government allocated funding to 38 pathfinder areas
to devise solutions to tackle overcrowding – this work also included a
focus on under-occupation; a report on progress is contained in the
TSA/DCLG’s 2009 paper
6. How Does Under Occupation Arise?
• The key message from landlords who have been active in the area of
reducing under-occupation seems to be that cash incentives are largely
irrelevant in most cases. What is important, and leads to successful
moves, is the provision of the right support and finding the right property.
• The CCHPR concludes that successful schemes to reduce under-
occupation “generally only manage to move a very small proportion of all
under-occupiers each year. The main reason for this is that most do not
want to leave the homes they are settled in.”
• In the world of behavioural economics we know that if you apply a
financial penalties instead of an incentives expect some serious resistance
through protest, legal action and appeals
7. But First Who Needs a Bedroom?
• If you’re single and under 35, you can only get Housing Benefit for bed-sit
accommodation or a single room in shared accommodation.
• An adult couple (who are married or living together as if they were) are allowed one
bedroom
• A single adult aged 16 or over
• a child of 15 or under is expected to share with another child of the same gender;
and
• •a child of 9 or under is expected to share with one other child aged 9 or
under, regardless of gender
• Disabled child or with a medical condition
• More bedrooms than that are required considered “spare”
8. When can you have a “Spare Bedroom”
• If you are an approved foster carer who is between placements
• 52 week rule – between placements or as new foster carer from the date of
appointment
• Students and members of the armed forces if they are away and they
intend to return
• Exemptions are worth a session by themselves
9. Discretionary Housing Payments
• DHP is a local scheme run by a HB administrating councils
• Funded by a DWP grant
• to be used to support vulnerable claimants who require additional
financial support with their rent above the statutory HB or UC award
• The LA sets local conditionality and the award terms
10. Appeals
• DHP awards are not “benefit” so decisions relating to DHPs are not
subject to the statutory benefits appeals process
• A decision on whether a room is to be treated as a spare bedroom or not
and whether you are entitled to an additional bedroom is a decision that
affects the amount of benefit that you are paid and is a matter that can be
formally appealed
• However, the Government has promoted DHP as the mechanism by which
tenants affected by the penalty can get more financial assistance and
therefore the number of appeals were lower than anticipated while
requests for DHP have been numerous
11. Appeals
• This has created confusion because the DHP is not the answer to the question on
whether a room is a spare bedroom.
• DHP is solution to where there is a spare bedroom and it is impracticable for the
tenant to make short-term and in some cases long-term alternative
arrangements. This would be most common in cases of mental illness or
disability/medical condition that requires a couple to sleep a part
• DHP and appealing the spare bedroom criteria were not mutually exclusive, you
could do both
• But claimants did not understand that they needed to appeal the spare bedroom
decision. They do have up to 13 months to make a late appeal – for most
affected in April 2013 will find that deadline will run out at the end May 2014
13. The DWP Bedroom
• Social housing restrictions are contained in the Welfare Reform Act 2012 to
provide that, since 1 April 2013
• State working-age social tenants in receipt of Housing Benefit will experience a reduction
in their benefit entitlement if they live in housing that is deemed to be too large for their
needs.
• Statutory Instrument 2012/3040
• Restrictions on entitlement to Housing Benefit based on the size of the
accommodation occupied have applied to working and pension age claimants
living in privately rented housing since 1989
• Schedule 3 to the Rent Officers (Additional Function) Order 1989
• DWP guidance on the SH size criteria is in A4/2012.
• Further guidance, following the announcement of additional exemptions on 12
March 2013 is in U2/2012 &A10/2013.
• A21/2013 provides guidance on exemptions introduced on 4 December 2013.
14. The DWP Bedroom
• For all of that law and guidance the DWP has not defined what a bedroom
is in relation to HB
• They state only how many bedrooms a home may have for the size and
make-up of the family, and exemptions to the general rule
• There is no difference in the concept of a bedroom between Benefit rules
for LHA and Social Housing other than
• LHA connects the required number of bedrooms to reasonable market rent, and
• Social Rents apply a penalty to those who have more bedrooms than they require.
We will not be defining what we mean by a bedroom in legislation and there is no
definition of a minimum bedroom size set out in regulations. It will be up to the landlord
to accurately describe the property in line with the actual rent charged. – A4/2012
15. So If The DWP Do Not Define A Bedroom
Who Does?
• Actually no one for HB Purposes!
• HB notwithstanding, the number of bedrooms is important to social
landlords. S326 of the Housing Act 1985 makes it unlawful to define a
room of less than 50 sq feet as a bedroom. 50-70 sq feet is considered to
be enough for or only half a person.
• This relates only to statutory overcrowding not to HB.
• However, this argument was used to successfully win appeals at the Fife
First-tier Tribunal. The DWP are appealing some of these FtT decisions to
the Upper-tier Tribunal
• The DWP have reinstructed LAs that only the landlord can designate
whether a room is suitable to be used as a bedroom.
• The landlord cannot say that it is being used as a bedroom
16. Use of the Room
• This is important because:
1. In social housing the number of bedrooms partially determines the amount of
the rent
2. Which is why Government does not want LAs defining a bedroom on the basis
of size but on usage
• In other words if the Social Landlord wants to say there is less bedrooms (ie s326
HA 1985 applies) then the landlord needs to reduce the rent
• But it is not straightforward because the landlord only has to say that it could be
used as a bedroom not that it has to be used as a bedroom
• What the DWP are saying is that there has to be a correlation between room use
and rent charged.
• But that is opinion and not law and it is flawed
• Ultimately the DWP does not want overcrowding is not to become a welfare
issue but remain a housing matter.
In January 2013 Knowsley Housing Trust announced an
intention to reclassify 566 of its 2 and 3 bed homes as
smaller units at a cost of around £250,000 in annual
rental income. The CEO said that this was about
charging the correct rent levels for the properties
concerned rather than a direct response to the under-
occupation measure.
17. Use of the Room
• Islington FtT allowed for a room to be not designated as a bedroom on
grounds of size and use
• Westminister FtT allowed a blind lawyer appealed the penalty on the
grounds that the room had never been used as a bedroom and was, in
fact, used to store equipment to assist with his disability.
• The chair stated “The term bedroom is nowhere defined. I apply the ordinary English
meaning. The room in question cannot be so described. The appeal succeeds”
• The historic use of the room and the landlord’s intention appear to have been key
factors influencing the judge in this case. The DWP is an appealing the ruling.
18. Bolton Metropolitan Borough Council v BF
(HB) [2014] UKUT 48 (AAC).
• These FtT rulings are not binding but they are supported in terms of the
definition and historic use by a LHA UtT case CH/140/2013.
• The Judge ruled 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”
• This is interesting because it is the reverse of the Bedroom Tax cases
insofar as it relates to increasing rather than decreasing the number of
bedrooms for LHA purposes and says that another habitable room can be
defined as a bedroom in order to meet the needs of the claimants.
19. What is a Bedroom?
• Point is that the UtT accepts that ‘bedroom’ is an ‘ordinary English word
and to be construed as such’. The judge uses four dictionary definitions
but he is not setting these dictionary definitions as the only criteria for
what is a bedroom.
• At a Rochdale FtT a tenant had what was classed by the landlord as a two
bedroom property. The tenant argued that one of these ‘bedrooms’ was
used as a dining room, because the kitchen was part of the living room
and there was no room to have a dining table in the living room.
• The room had never been used as a bedroom by the tenant and he had
been looking for a one bed flat when allocated this property. FtT held
“landlords cannot arbitrarily reclassify room use” and it was never used as
bedroom, despite tenant having signed description of property as 2
bed, with tenancy agreement and in HB application.
20. Conclusion: It is a bedroom
• If it is a habitual room that the landlord has defined as a bedroom and
• in the case of a social housing it is treated as a bedroom for rent purposes and
• It contains a bed or
• Historically it has always been used as bedroom or
• It is regularly used as a bedroom (this is the test of rule and not of time) or
• It is a general storage room that could be used as a bedroom
• Then it is bedroom
21. Conclusion: It is not a bedroom
• If it is a habitual room that the landlord says it unsuitable as a bedroom
and
• Its lack of use as a bedroom is reflected in the rent, and
• It does not contain a bed and
• Historically it has never been used as bedroom
• Then it is not bedroom (even if it is referred to as a bedroom)
• If it is a habitual room that historically does not contain a bed and
• Due to lack of space It is used as another habitable room, or
• It is used to store essential equipment to assist a disable person live an independent
life
• Then it is not bedroom (even if it is referred to as a bedroom)
22. Conclusion: Conflicts
• It is possible to be both under-occupying and over crowded because the
unused bedroom in social housing is too small to be leased out.
• For example A single person in a two bedroom property where the second bedroom
is a box room would be under-occupying but they could not rent out the second
bedroom because the size is such that they would breach the Housing Act’s
definition of overcrowding.
• A couple in the same property would not be overcrowded because they could share
the main bedroom but two single people would be overcrowded
• This raises the question of whether the second bedroom is available as a
bedroom. If it is not furnished with a bed it is simply another habitable
room that could be available for a guest to sleep in.
• But is it a bedroom for benefit purposes?
23. Conclusion
• Change of use.
• Sometime a person due to the onset of a medical condition will need to change the
use of a room, either to a bedroom to accommodate a carer or they become a foster
etc.
• Then you could replace the historical test with the tests of intention and need
• Subsidy
• While the DWP cannot appeal an LA decision the external auditors may challenge
decisions through the audit of the subsidy claim. It is important that the LA record
the reasons for the decision to treat a possible bedroom for other use. It would be
hard for the auditor to reduce subsidy unless they can show that the LA is making
wholesale decisions to re-designate bedrooms for other use.
• Lord Freud has said where large scale decisions are be made then they will be
scrutinised and if the auditors can demonstrate sharp practice then they may reduce
subsidy. Therefore keep a proper paper trail.
