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Restrictions on eligible rents: Social rented sector tenants

This content applies to England

The restrictions applicable to the eligible rent of a social rented sector tenant in receipt of housing benefit.

The eligible rent used to calculate the amount of housing benefit a social rented sector tenant of working-age can receive will be determined by the bedroom-size criteria and reduced in case of under occupancy. This is commonly referred to as the 'bedroom tax'.

Under-occupancy rules – the 'bedroom tax'

The eligible rent of a local authority or private registered provider of social housing (PRPSH) tenant of working age can be restricted if s/he is under occupying her/his home.[1] The bedroom entitlement of a claimant is determined by how many bedrooms s/he is entitled to under the 'general' rules and whether s/he is entitled to any additional bedrooms.

Bedroom entitlement: general rules

Under the general entitlement, one bedroom is allowed for each of the following (note that each person only counts once and will be placed in the first category which applies):[2]

  • a member of a couple who cannot share a bedroom because of disability.[3] A 'member of a couple who cannot share' must be entitled to the care component of Disability Living Allowance (DLA) at the higher or middle rate, higher rate attendance allowance, or the daily living component of personal independence payment (PIP) or the armed forces independence payment. In addition, the local authority must judge her/him not able to share a bedroom with the other member of the couple because of her/his disability[4]
  • where a room is allocated for a member of a couple who cannot share, the other member of the couple[5]
  • an adult couple who can share a bedroom
  • another person aged 16 or over, including a lodger or a resident carer
  • a child who the local authority judges cannot reasonably share a bedroom because of her/his disability and who is entitled to the care component of Disability Living Allowance at the higher or middle rate.[6] This applies whether the disability is physical or mental[7]
  • any two children aged under 16 of the same gender
  • any two children aged under 10 regardless of their gender
  • any other child. This includes a children or step children who are not currently living in the home because they are serving in the Armed Forces, but will return (see below).

Bedroom - an objective test

The Court of Appeal has held that in order to determine the claimant's bedroom entitlement, the local authority must apply an objective test. Individual characteristics of the actual occupier(s) concerned are irrelevant. The authority must assess objectively whether a room is capable of being used as a bedroom by any of the depersonalised categories of persons listed in the regulations (see above), not how the property would be used by a particular family unit.[8]

Storage of medical or disability-related equipment

An additional room needed for storage of medical/special equipment for a disabled person is not included in the calculation of the rooms allowed.[9]

Capping of bedrooms allowed

Under the social rented sector criteria, the number of bedrooms allowed is not capped at four bedrooms as it is for private sector claimants under the local housing allowance rules.

Additional bedroom rules

An additional bedroom should be allowed for:[10]

  • a foster child, or if the claimant is an approved foster carer who is waiting a placement
  • a non-resident carer for a disabled claimant or her/his disabled partner who needs overnight care
  • a non-resident carer for another disabled child or adult who needs overnight care

The conditions under which an additional bedroom can be allowed for a non-resident carer are set out in the 'Carers' section below.

An additional bedroom should also be allowed if one of the situations where a claimant can be treated as occupying the home (and thus eligible for housing benefit) applies:[11]

  • before the claimant or her/his partner moves into a new home, for example s/he is waiting for the home to be adapted to meet a disability need (see Payments for moving to a new home for more details)
  • where the claimant or her/his partner is temporarily absent, for example s/he is in hospital in Great Britain for up to 52 weeks (see Temporary absences from home for more details).

Foster children

An additional bedroom should be allowed if the claimant or her/his partner is an approved foster carer, and:[12]

  • has a foster child living with her/him
  • is between placements and has fostered a child in the last 12 months
  • became an approved foster carer in the last 12 months.

There must be a 'spare bedroom' in the property in order for an additional bedroom to be allowed. Only one extra bedroom is permitted per person or couple performing foster care regardless of the number (or sex) of foster children in the household.[13]

Adult placement schemes

The Upper Tribunal has ruled that it is discriminatory to make a deduction in respect of a room being occupied by or held for an adult needing care under an adult placement scheme (as respite care or under a longer term arrangement).[14]

Child in the Armed Forces

A bedroom is allowed if the claimant, or her/his partner, has a child or step child who is in the Armed Forces and:[15]

  • is away 'on operations'. This does not necessarily mean on duty outside the UK, it also covers pre-deployment training and post-operation leave (ie 'normalisation').[16], and
  • had been a non-dependant when living at home, and
  • intends to return to the claimant's home.

Carers

A bedroom for a resident overnight carer living in the claimant’s home should be allowed under the general rules set out above as the carer would be a 'person who is not a child'.

An additional bedroom should be allowed for a non-resident overnight carer of one of the following:[17]

  • disabled claimant or her/his disabled cohabiting partner
  • disabled child
  • disabled other adult (such as a non-dependant or lodger).

The bedroom must be 'reasonably required' by a non-resident carer (or team of carers) who 'regularly' stays (or stay) overnight.[18] Whether a bedroom is 'regularly' used needs to be assessed over a long period, and it is not necessary that a carer stays overnight on the majority of nights.[19]

In order to qualify for an additional bedroom for a non-resident overnight carer:[20]

  • the claimant, her/his partner, or non-dependant adult must be in receipt of higher rate attendance allowance, the care component of disability living allowance (DLA) at the highest or middle rate, the daily living component of personal independence payment, or the armed forces independence payment
  • a disabled child must be in receipt of the care component of DLA at the higher or middle rate

When the above is not satisfied, the local authority has the discretion to allow an additional bedroom if it has been provided with sufficient evidence to be satisfied that overnight care is required.

Where a person who requires care is treated as occupying a property but is not actually in occupation (for example because she/he is in hospital), there must be an actual bedroom available for the carer's use (that is in addition to those used by the occupier(s) of the property).[21]

Separated parents

If parents are separated and share the care of a child, the child will only be taken into account when calculating the bedroom size of her/his main carer.

The main carer is the person in receipt of child benefit for the child. This means that the housing benefit calculation for the parent who is not in receipt of child benefit will not take the child into account, even if care is shared equally, and if the parents have agreed to share the child benefit.[22] The High Court has held that this rule did not breach the rights under Articles 8 and 14 ECHR of separated parents looking after children under shared care arrangements, mainly because discretionary housing payments were available to make up the shortfall.[23]

Lodgers

A lodger is included when determining the size criteria.[24] Some local authorities have developed lodging schemes to match tenants who will be affected by the bedroom tax with potential lodgers.

The first £20 per week of the rent received from a lodger is disregarded when calculating the claimant's income for housing benefit purposes. If some meals are provided as part of the rental charge, half of any rent above £20 per week will also be disregarded.[25]

Sanctuary schemes

The 'bedroom tax' applies regardless of whether a person's home has been specially adapted under a 'sanctuary scheme' (ie a scheme in which a property is adapted to make it secure, usually to enable a person at risk of domestic violence to be able to remain in their home).

A person will be deemed as under-occupying their home if it contains a 'sanctuary' room that is in addition to the number of bedrooms required under the size criteria. The Supreme Court has held that this does not amount to unlawful discrimination or a breach of the public sector equality duty.[26]

Joint tenants

Where joint tenants are not a couple each joint tenant will be allowed:

  • a bedroom [27]
  • in most cases, an additional bedroom where the applicant or her/his joint tenant comes into one of the categories above. For example, an additional bedroom will be allowed if the joint tenants each have a disabled child who is in need of a non-resident overnight carer.[28] Where the joint tenants are a couple, only one additional bedroom can be allowed for a foster child or overnight carer.

Where the joint tenants are a couple, they will normally have to share a room unless prevented by a medical condition (see above) and will only be allowed one additional bedroom for a foster child or overnight carer.[29]

Definition of bedroom

There is no definition of a bedroom in the regulations.

The word 'bedroom' should be given its ordinary meaning.[30] The way in which the a room is used by a tenant does not affect whether it is a bedroom or not.[31]

A landlord's description of the property is a 'starting point' in determining the number of bedrooms a property but will not normally be definitive.[32] In a borderline case where a house could be considered to have two or three bedrooms, the landlord's designation could be the deciding factor.[33] Where a description is challenged the housing benefit authority will have to give reasons why a particular room is designated as a bedroom. A number of factors will have to be considered including:[34]

  • room size, configuration and overall dimensions
  • access
  • lighting, natural and electric
  • ventilation
  • privacy.

A bedroom should not be counted if it is not safe to use. A room contaminated with asbestos cannot be treated as a bedroom.[35]

Size considerations

The space standards as set out in the legislation governing overcrowding do not determine whether a room is a bedroom, although room size can be factor.[36] In one case, the Upper Tribunal stated that 'warning bells' should sound if a room had a floor area of less than 50 square feet, even if used for a child.[37]

However, in two separate decisions the Upper Tribunal also held that:

  • the fact that a small room could be described as a ‘box room’, did not prevent it from being classed as a bedroom, [38] and
  • that room of 43 square feet was a bedroom. [39]

One reason why size is a factor is because it restricts the amount of furniture that can be accommodated in a room. A bedroom should be capable of containing furniture beside the bed (such as a bedside table) and furniture for clothes storage - a chest of drawers may be able to serve both functions.[40]

Changing the designation of a room

The classification and description of a property used as a dwelling is a matter of fact to be determined objectively according to relevant factors such as its size, layout and specification in its vacant state; such classification can only be changed by structural alterations made with the landlord’s consent, and does not change depending on the actual needs of the occupants or how they use the rooms for whatever reason from time to time. This applies even where a bedroom is re-designated as a living room by a social worker for reasons of therapy, privacy and carer support for a disabled claimant.[41]

Reduction levels

If a claimant's is under occupying her/his home (ie the number of bedrooms is more than what is deemed appropriate for the needs of her/his household), her/his eligible rent will be reduced by:[42]

  • 14 per cent for under-occupation by one bedroom
  • 25 per cent for under-occupation by two or more bedrooms.

Discretionary housing payments

A claimant can apply for a discretionary housing payment (DHP) to help make up a shortfall as a result of the bedroom tax. Additional funds have been made available to assist disabled people living in accommodation that has been substantially adapted for their needs.[43] For further information see Discretionary housing payments.

Excluded claimants and exempt accommodation

Some claimants are exempt from the bedroom tax. The following rules apply.

Claimants of pension credit age

If a claimant or her/his partner has reached the age to qualify for pension credit, s/he will be exempt from the bedroom tax.[44] The state pension calculator on Gov.uk can be used to calculate when a claimant will qualify for pension credit.

Claimants in particular types of accommodation

The bedroom tax will not apply to claimants who live in exempt accommodation,[45] ie supported accommodation provided by a non-metropolitan county council in England, PRPSH, charity or voluntary organisation, where that organisation or someone acting on their behalf provides the claimant with care, support or supervision.[46]

It will also not apply to tenants who live in:[47]

  • shared ownership tenancies
  • caravans, mobile homes and houseboats
  • tenancies excluded under schedule 2 of the Housing Benefit Regulations 2006
  • certain types of temporary accommodation provided to a homeless applicant under Part 7 of the Housing Act 1996, namely:
    • bed and breakfast, hotels and guest houses
    • accommodation where the charges include the rent and the provisions of some meals
    • temporary accommodation leased or licenced by the local authority or PRPSH.

Claimants in receipt of housing benefit continuously since 1996

If a claimant has been continuously entitled to, and receiving housing benefit since 1 January 1996, and in most cases has not moved home since that date, then s/he was, for a period, exempt from the bedroom tax. This exemption also applied in some circumstances to successors and to former partners who have continued to live in the accommodation after the original claimant has either died or left.[48]

With effect from 3 March 2014, this category of exemption from the bedroom tax does not apply. However, anyone who was entitled to the exemption but who did not receive it can still apply after this date for their housing benefit to be reviewed, as the legislation removing the exemption is not retrospective.

Where the failure to apply the exemption was a result of official error, there is no time limit for requesting a revision (HB Circular A1/2014 incorrectly states that a time limit of 13 months applies).[49]

Protected rates

A claimant who is under occupying her/his accommodation will not be subject to a reduction in the eligible rent for a period of:[50]

  • 13 weeks, if s/he is a new claimant and had not claimed housing benefit in the previous 52 weeks
  • 52 weeks, in the event of the death of a 'linked person'.

For further information about the two above categories of claimants who will be protected see the page Protected rates.

Pre-April 2013 rules

Prior to April 2013, a local authority tenant's eligible rent was not subject to restrictions on the grounds of size or expense.

The eligible rent of the tenant of a private registered provider of social housing (PRPSH) - such as a housing association - was normally not restricted. However, if the local authority's housing benefit department considers that a PRPSH tenant occupies a property larger than s/he needs or pays an unreasonably high rent,[51] it can treat her/him in the same way as a private rented sector tenant and refer her/his rent to a rent officer for determination. This still applies and is most likely to occur where a local authority arranges temporary accommodation with a PRPSH landlord. The DWP issued guidance to local authorities on when it is appropriate to refer PRPSH rents to a rent officer.[52]

For further information about rent officer's determinations of eligible rents see the page Restrictions on eligible rents: Private sector tenants.

[1] regs A13 and B13 Housing Benefit Regulations 2006 SI 2006/213 as inserted by reg 5 Housing Benefit (Amendment) Regulations 2012 SI 2012/3040; HB Circular A4/2012.

[2] reg B13(5) Housing Benefit Regulations 2006 SI 2006/213, as inserted by reg 5(7) Housing Benefit (Amendment) Regulations 2012 SI 2012/3040.

[3] reg B13(5)(za) Housing Benefit Regulations 2006 SI 2006/213, as inserted by reg 4(3) Housing Benefit and Universal Credit (Size Criteria)(Miscellaneous Amendment) Regulations 2017 SI 2017/213.

[4] reg 2 Housing Benefit Regulations 2006 SI 2006/213 as amended by reg 4(2)(a) Housing Benefit and Universal Credit (Size Criteria)(Miscellaneous Amendment) Regulations 2017 SI 2017/213

[5] reg B13(5)(zb) Housing Benefit Regulations 2006 SI 2006/213 as amended by reg 4(2)(a) Housing Benefit and Universal Credit (Size Criteria)(Miscellaneous Amendment) Regulations 2017 SI 2017/213

[6] HB Circular A21/2013; reg B13(5)(ba) Housing Benefit Regulations 2006 SI 2006/213 as amdnded by reg 3 Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amdenments) Regulations 2013 SI2013/2828.

[7] LA v Bury MBC (HB) UKUT 546 (AAC).

[8] Secretary of State for Work and Pensions v Rachel Hockley, Nuneaton and Bedworth Borough Council [2019] EWCA Civ 1080.

[9] see R (on the application of MA & others) v Secretary of State for Work and Pensions [2016] UKSC 58.

[10] reg B13(6) Housing Benefit Regulations 2006 SI 2006/213 as amended by reg 4  Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2017 SI 2017/213.

[11] reg 2 Housing Benefit Regulations 2006 SI 2006/213 as amended by para 2(2) Housing Benefit (Amendment) Regulations 2010 SI 2010/2835

[12] reg 2 and reg B13(6)(b) Housing Benefit Regulations 2006 SI2006/213 as amended by reg 2 Housing Benefit Amendment Regulations 2013 SI2013/665

[13] reg B13(7) Housing Benefit Regulations 2006 SI2006/213, as amended by reg 2(3)(c) Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2013 SI2013/2828 and and reg 4(3)(c) Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2017 SI 2017/213; HB Circular A21/2013.

[14] Secretary of State for Work and Pensions v PE and Bolton Metropolitan Borough Council (HB) [2017] UKUT 393 (AAC).

[15] reg B13(8) Housing Benefit Regulations 2006 SI 2006/213; HB Circular A10/2013.

[16] para 33 HB Circular A10/2013.

[17] reg B13(6)(a) and B13(6)(ab) HB Regulations 2006 SI 2006/213 as amended by reg 2 Housing Benefit (Amendment) Regulations 2013 SI 2013/665 and Housing Benefit and reg 4(6) Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2017 SI 2017/213

[18] reg 2, Housing Benefit Regulations 2006 SI2006/213 as amended by reg 2(2), Housing Benefit (Amendment) Regulations 2010 SI2010/2835 and reg 2(2)(a) HOusing Benefit and Universal Credit (Size Criteria) (Miscellaneous) Regulations 2013 SI2013/2828.

[19] SD v Eastleigh Borough Council (HB) [2014] UKUT 325 (AAC).

[20] reg 2 Housing Benefit Regulations 2006 SI 2006/213, as amended by reg 2(2) Housing Benefit (Amendment) Regulations 2010 SI 2010/2835 and reg 4 Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2017 SI 2017/213.

[21] reg 2(1) Housing Benefit Regulations 2006 SI 2006/213 as amended by reg 2(2) Housing Benefit (Amendment) Regulations 2010 SI 2010/2835 and reg 4(3)(d) Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2017 SI 2017/213.

[22] para 45 HB/CTB Circular A4/2012; s.137(1)(c) Social Security Contributions and Benefits Act 1992; reg 20(2) Housing Benefit Regulations 2006 SI 2006/213;  MR v North Tyneside Council and Secretary of State for Work and Pensions [2014] UKUT 34 (AAC).

[23] R (on the application of (1) Cotton (2) Hutchinson (3) Cohen) v Secretary of State for Work and Pensions and (1) New Forest DC (2) Derby CC (3) Cotswold DC (Interested Parties); [2014] EWHC 3437 (Admin); Secretary of State for Work and Pensions v MM and Northumberland CC (HB) [2015] UKUT 624 (AAC); HB Urgent bulletin U5/2014.

[24] reg B13(5)(b) Housing Benefit Regulations 2006 SI2006/213; para 44 HB Circular A4/2012.

[25] paras 22 and 42, Sch.5 Housing Benefit Regulations 2006 SI 2006/213.

[26] R (on the application of MA & others) v Secretary of State for Work and Pensions [2016] UKSC 58.

[27] reg B13(5)(b), Housing Benefit Regulations 2006 SI 2006/213 as amended by reg 5(7) Housing Benefit Amendment Regulations 2012 SI 2012/3040

[28] reg B13(6) and reg B13(9) Housing Benefit Regulations 2006 SI2006/213, as amended by Housing Benefit and Universal Credit Size Criteria (Miscellaneous Amendments) Regulations 2013 SI2013/2828

[29] reg B13(7)(b) Housing Benefit Regulations 2006 SI2006/213 as substituted by reg 2(3)(c) Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2013/2828; reg B13(6)(a) and reg B13(7)(a) Housing Benefit Regulations 2006 SI2006/213 as substituted by reg 2(3)(c) Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2013 si 2013/2828 and Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2017 si 2017/213

[30] SSWP v GM and Liverpool CC (HB) [2018] UKUT 425 (AAC); SSWP v David Nelson and Fife Council, SSWP v James Nelson and Fife Council [2014] UKUT 525 (AAC); Bolton MBC v BF (HB) [2014] UKUT 48 (AAC)

[31] SSWP v GM and Liverpool CC (HB) [2018] UKUT 425 (AAC); Secretary of State for Work and Pensions v RR (HB) [2018] UKUT 180 (AAC).; SSWP v David Nelson and Fife Council, SSWP v James Nelson and Fife Council [2014] UKUT 525 (AAC).

[32] SSWP v GM and Liverpool CC (HB) [2018] UKUT 425 (AAC); Secretary of State for Work and Pensions v City of Glasgow Council and IB [2017] CSIH 35;  SSWP v David Nelson and Fife Council, SSWP v James Nelson and Fife Council [2014] UKUT 525 (AAC).

[33] Secretary of State for Work and Pensions v RR (HB) [2018] UKUT 180 (AAC).

[34] SSWP v GM and Liverpool CC (HB) [2018] UKUT 425 (AAC); SSWP v David Nelson and Fife Council, SSWP v James Nelson and Fife Council [2014] UKUT 525 (AAC).

[35] E v Bristol CC (HB) [2018] UKUT 287 (AAC).

[36] Part 10 Housing Act 1985; SSWP v David Nelson and Fife Council, SSWP v James Nelson and Fife Council [2014] UKUT 525 (AAC).

[37] Secretary of State for Work & Pensions v David Nelson and Fife Council; Secretary of State for Work & Pensions v James Nelson and Fife Council [2014] UKUT 0525 (AAC).

[38] SSWP v GM and Liverpool CC (HB) [2018] UKUT 425 (AAC).

[39] M v Secretary of State for Work & Pensions [2017] UKUT 443 (AAC).

[40] SSWP v GM and Liverpool CC (HB) [2018] UKUT 425 (AAC); M v Secretary of State for Work & Pensions [2017] UKUT 443 (AAC).

[41] Secretary of State for Work and Pensions v City of Glasgow Council and IB [2017] CSIH 35.

[42] reg B13(3) Housing Benefit Regulations 2006 SI 2006/213 as inserted by reg 5(7) Housing Benefit (Amendment) Regulations 2012 SI 2012/3040.

[43] para 52 HB Circular A4/2012.

[44] reg A13(2)(d) Housing Benefit Regulations 2006 SI 2006/213 as inserted by reg 5(7) Housing Benefit (Amendment) Regulations 2012 SI 2012/3040.

[45] reg 13C(5)(b) Housing Benefit Regulations 2006; para 4(1)(b) Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006.

[46] para 4(10) sch.3, Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006, SI 217/2006; see also AG v South Ayrshire Council (HB) [2017] UKUT 110 (AAC) and Wirral BC v (1) Furlong (2) Perry (3) Salisbury Independent Living and Secretary of State for Work and Pensions (HB) [2013] UKUT 0291 (AAC).

[47] regs A13(2) to (4) Housing Benefit Regulations 2006 SI 2006/213 as inserted by reg 5(7) Housing Benefit (Amendment) Regulations 2012 SI 2012/3040.

[48] reg 12B(1)(d) Housing Benefit Regulations 2006 SI 2006/213; para 4(1) Sch. 3 Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 SI 2006/217; HB Circular U1/2014.

[49] Housing Benefit (Transitional Provisions) (Amendment) Regulations 2014 SI 2014/212; HB Circular A1/2014.

[50] regs 12BA (5) to (8) Housing Benefit Regulations 2006 SI 2006/213 as inserted by reg 5(5) Housing Benefit (Amendment) Regulations 2012 SI 2012/3040.

[51] para 3 Sch.2 Housing Benefit Regulations 2006 SI 2006/213; para 3 Sch.2 Housing Benefit (Persons who have attained the qualifying age for pension credit) Regulations 2006 SI 2006/214.

[52] HB Circular S4/2010.

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