Restrictions on eligible rents for social rented sector tenants

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'.

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

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 the claimant as not able to share a bedroom with the other member of the couple because of their 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 their 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 sex

• any two children aged under 10 regardless of their sex

• 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 

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.

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 their 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 their partner moves into a new home, for example they are waiting for the home to be adapted to meet a disability need

• where the claimant or their partner is temporarily absent, for example they are in hospital in Great Britain for up to 52 weeks

Foster children

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

• has a foster child living with them

• 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 their partner, has a child or step child who is in the Armed Forces and they:[15]

• are 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]

• had been a non-dependant when living at home

• intend 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 their 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, their 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 they are 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 is only taken into account when calculating the bedroom size of their 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

From 1 October 2021 there is an exception for claimants in the social rented sector if the property has been adapted under a sanctuary scheme. These schemes allow for for increased security measures to help a person at risk of domestic abuse to remain in their home.

No deduction for under-occupation will be made if:[26]

• the property has been adapted under a sanctuary scheme

• domestic violence has been inflicted on or threatened against the claimant or a member of their household by that person's partner, former partner, or by a relative

• the perpetrator does not live at the property (unless they are a qualifying young person who is dependent on a member of the household)

• the claimant provides evidence from a person acting in an official capacity to support this

A person acting in an official capacity includes a health care official, police officer, social worker, employer, trade union representative, as well as any public, voluntary or charitable body which has had contact with them about the domestic abuse.[27]

Circular A8/2021 gives more detailed information.

This followed a ruling by the European Court of Human Rights that applying the bedroom tax to survivors of domestic abuse who live in homes adapted under the sanctuary scheme was a violation of Article 14 in conjunction with Article 1, Protocol 1 of the European Convention on Human Rights.[28]

Where joint tenants are not a couple each joint tenant is allowed:

• a bedroom

• in most cases, an additional bedroom where the applicant or their 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.[29] 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.[30]

There is no definition of a bedroom in the regulations. The following principles for determining whether a room is a bedroom have been developed in case law:

• the word 'bedroom' should be given its ordinary meaning

• the test is an objective one and not based on the way in which a room is used by a tenant. The property should be assessed in a vacant state and the correct question to ask is whether the room is capable of being used as a bedroom by any of the persons listed in the relevant regulations (see 'Bedroom entitlement: general rules' above)[31]

• the 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 the landlord's 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]

The Upper Tribunal has 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

• a room of 43 square feet was a bedroom[39]

• the fact that a door could only open to a 50 degree angle before touching the bed was not a sufficient reason to find that the arrangement of the room did not provide reasonable access or was unsafe[40]

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.[41]

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.[42]

If a claimant's is under occupying their home (ie the number of bedrooms is more than what is deemed appropriate for the needs of their household), their eligible rent is reduced by:[43]

• 14 per cent for under-occupation by one bedroom

• 25 per cent for under-occupation by two or more bedrooms

A claimant can apply for a discretionary housing payment 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.[44]

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

Claimants of pension credit age

If a claimant or their partner has reached the age to qualify for pension credit, they will be exempt from the bedroom tax.[45] 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,[46] 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.[47]

It will also not apply to tenants who live in:[48]

• 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.[49]

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).[50]

A claimant who is under occupying their accommodation is not be subject to a reduction in the eligible rent for a period of:[51]

• 13 weeks, if they are 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 are protected, see Protected rates

The regulations on bedroom entitlement for disabled claimants were amended on 1 April 2017,[52] after the Supreme Court found the original rules to be unlawfully discriminatory against couples who could not share a bedroom due to a disability and children requiring an overnight carer (under the original ‘bedroom tax’ regulations the two groups did not qualify for an additional bedroom), and therefore amounting to a violation of their rights under article 14 read with article 8 of the European Convention on Human Rights.[53]

Even though the 2017 amendments were not retrospective, in a subsequent decision the Supreme Court held that public authorities, including local authorities administering housing benefit, courts and tribunals, have powers to disregard secondary legislation (including the pre-1 April 2017 bedroom entitlement rules under the the 'bedroom tax' regime) if it is incompatible with the European Convention on Human Rights.[54]

This may be of relevance to any ongoing challenges to housing benefit decisions for periods predating 1 April 2017, where a reduction was applied in the circumstances described above. The DWP has issued guidance on outstanding appeals that were stayed pending the outcome of the case in the Supreme Court. The HB Bulletin U1/2020 advises decision-makers that these cases are now going to be decided in line with the Supreme Court's approach and additional housing benefit payments are likely to be required.[55]

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 usually not restricted. However, if the local authority's housing benefit department considers that a PRPSH tenant occupies a property larger than their needs or pays an unreasonably high rent[56] it can treat them in the same way as a private rented sector tenant and refer their 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.[57]