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Sarah Schooling

Posted 3 December 2013
by Sarah Schooling

Bedroom tax: what is a bedroom?

The beginning
Since April 2013 the ‘bedroom tax’, or spare room subsidy, has applied to those people who are deemed to be under-occupying their property. Whether there is a spare room, is simply decided on the basis of the size of the family against the size of the property. There are rules as to what age children should be expected to share a room to, dependant on gender. There is currently no allowance made for disability or other circumstances that may require a person to have more than their allotted share of space.

Earlier this year there was a Judicial Review case brought by ten claimants against the Secretary of State for Work and Pensions on the basis that the bedroom tax was against the claimants Article 14 (Discrimination) rights. That case failed, though there is going to be an appeal against the decision.

The middle
The current interest is in a series of cases coming out of the First Tier Tribunal, Social Entitlement Chamber. The chamber reviews decisions in relating to benefits. Five decisions have been made in Scotland and one in Westminster. Of these one concerned whether the property was exempt and another was refused.

Two cases were about whether a small bedroom (under 70 sq. ft.) was a bedroom for the purpose of the bedroom tax.

The argument put forward was that the second ‘full size’ bedroom was occupied by an overnight carer (this was not disputed by the council but as the room was not allocated to the carer and the carer was not a live in carer, the judge did question whether the carer could therefore not use the small room of under 70 sq. ft.), the third room was used to house equipment and in one of the cases was possibly being converted to a wet room. In both cases the small rooms were less than 70 sq. ft. but not below
50 sq. ft., therefore on the overcrowding scale they were suitable bedrooms for a person under 10 years old. The judge decided that as the room could not be occupied by an adult it could not be used to accommodate the notional lodger, the Government suggested tenants have to pay for the bedroom tax. It was not, therefore, counted as a bedroom for the purposes of the bedroom tax. The judge went on to dismiss the other arguments regarding the storage of equipment having changed the use of the room from a bedroom to a store room and these remain as undecided arguments.

The other case turned solely on the question of the use of the rooms. Whilst it was described as being a 3 bedroomed property the judge found that:

  • The sitting room could not be classed as a bedroom just because in theory it might be used for that purpose (this room was heated by a solid fuel stove and there was a question of whether it would be safe to use this room as a bedroom in any event, though this was not ruled on by the judge)
  • One possible bedroom was used for food preparation as the kitchen was too small for this to take place and in any event as it led onto the kitchen it was not suitable to be used as a bedroom
  • The other possible bedroom was an ‘L’ shaped room of 67 sq ft with a low ceiling, this was found not to be fit for use as a bedroom.

The property was therefore classified as a one bedroom property.

The failed decision is also of interest. Here it was put forward that a room measuring 9ft x 8ft (I make this to be 72 sq. ft.) should be excluded as a bedroom. Part of the tenancy agreement was to maintain the garden and the tenant argued that the equipment (mower, strimmer etc.) for doing so had to be stored somewhere. There was no shed and therefore the safe place to store it was the bedroom. The room had been used as such since 2007 when the tenant moved in. The court said no and counted the room as a bedroom.

The Westminster judgement is short. It states that as the bedroom in question was never intended to be used as a bedroom but as storage for equipment relating to the applicant’s disability so was not a bedroom.

The next chapter – but not the end
The DWP has announced that it is appealing the 3 Scottish decisions re-classifying rooms that are bedrooms and we await an appeal hearing on the Judicial Review case. Along with these actions in the courts is the report of the UN Inspector due to be published in March 2014. Her preliminary remarks suggested that the Government should re-assess its policy of implementing the bedroom-tax and whilst doing so suspend its application.

Where does this leave us?
For landlords these decisions do not mean that it is necessary or even desirable re-classify all rooms under 70 sq ft. The tribunals have made decisions in a couple of cases that the tenants have required extra space given their needs and requirements. It does not mean that the property if it was later let to a family who was satisfying its size criteria are now over-occupying. Far from it, they would fit the requirement of the space standard and be the ‘perfect fit’ occupants for the property allowing its maximum utilisation.

What it will mean is that landlords’ may experience a rise in rent arrears that they cannot pursue through the court due to tenants challenging their Housing Benefit allocation.

The benefit officers will no doubt now be wise to whether a room is allocated to an overnight carer, and there may well be a case whereby a carer is allocated the undersized room (under 70 sq. ft.) and the court has to decide whether it is suitable for this person to use the smaller room. If it is then the tenant may still be in the position of under occupying their home.

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About the author

Sarah Schooling

Sarah Schooling

Associate and Solicitor

Associate within the housing management team with over 10 years experience