Restrictions on eligible rents for private rented sector tenants

The claimant's eligible rent (which is sometimes also called a 'maximum rent') is restricted by reference to determinations made by the rent officer.[1] The rent officer is independent of the local authority and is employed by the Department of Work and Pensions (DWP). The rent officer supplies the authority with one or more of the following 'determinations'.

If the rent officer supplies only one figure to the authority, the authority must use that figure as the claimant's eligible rent. If the rent officer supplies more than one figure to the authority, the authority must use the lower (or lowest) figures.

Claim-related rent determination

This is the rent officer's valuation of the property itself. It is adjusted downwards if the property is significantly more expensive or larger than the claimant and their household needs. If it is lower than the claimant's actual rent, it is also called a 'significantly high rent determination', a 'size-related rent determination', or an 'exceptionally high rent determination', depending on why the rent officer considers the claimant's actual rent to be too high.

Local reference rent determination

This is fixed at the mid-point of rents in the broad market rental area (BRMA) for accommodation of an appropriate type and size, based on market rents paid by tenants who are not getting housing benefit.

The regulations allow for a unified definition of BRMAs to apply in respect of both local housing allowance (LHA) and local reference rent cases and for the boundaries of a BRMA to be broadly drawn.[2]

Single room rent determination

This is used for single claimants under the age of 35, unless they fall within one of the exemption categories set out below.

For a size-related rent determination the rent officer determines the total number of bedrooms or living rooms allowed for the household.[3] Guidance on specific issues relating to joint tenants has been issued.[4]

Living rooms

• one living room is allowed for one to three occupiers

• two living rooms are allowed for four to six occupiers

• three living rooms are allowed for seven or more occupiers

Bedrooms: general rule

There must be one bedroom for each of the following:[5]

• every adult couple

• every other person aged 16 or over, including a resident carer, lodger and child who is in the Armed Forces

• any two children aged under 16 of the same sex

• any two children aged under 10 regardless of sex

• every child who cannot share a bedroom due to their disability

• (from 1 April 2017) each member of a couple that is unable to share a bedroom because of a disability

A room used for the storage of medical/special equipment is not to be counted as a bedroom under the regulations.[6]

Additional bedroom rules

An additional bedroom is allowed for:[7]

• a foster child

• an overnight carer

Where both categories apply, two additional bedrooms are allowed.[8]

Child in the Armed Forces

A person over the age of 16 who is allowed a bedroom in the size criteria includes a child in the Armed Forces who:[9]

• 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')

• had been a non-dependant when living at home, and

• intends to return to the claimant's home

Foster children

An additional bedroom is allowed if the claimant or their partner is an approved foster carer and:[10]

• has a foster child is living with them, or

• is between placements and has fostered a child in the last 12 months, or

• became an approved foster carer in the last 12 months

There must be a spare bedroom in the home in order for an additional bedroom to be allowed. Only one extra bedroom is permitted regardless of the number (or sex) of foster children in the claimant's household.

Adult placement schemes

The Upper Tribunal has ruled that it is discriminatory not to allow a room for an adult needing care under a placement scheme (as respite care or under a longer term arrangement), where a room is allowed for a foster child.[11]

Carers

A bedroom for a resident overnight carer living in the claimant’s home is allowed under the general rules set out above.

An additional bedroom for a non-resident overnight carer should be allowed when it is 'reasonably required' by a:[12]

• disabled claimant or their disabled cohabiting partner

• (from 1 April 2017) disabled child

• (from 1 April 2017) disabled non-dependant adult

A bedroom will be 'reasonably required' if the non-resident carer 'regularly' stays overnight (this might be when care is provided by a team of carers).[13] Whether the bedroom is 'regularly' used is to be assessed over a long period, and it is not necessary that a carer stays overnight on the majority of nights.[14]

There must be an actual bedroom available for the overnight carer's use that is in addition to those used by the occupiers of the property.[15]

Disabled persons

In order to qualify for a bedroom for a non-resident carer or because they cannot share a bedroom, the disabled person must be in receipt of one or more of:[16]

• care component of DLA at the higher or middle rate

• higher rate attendance allowance

• daily living component of personal independence payment (PIP)

• armed forces independence payment

Lodgers

A lodger is included when determining the size criteria.[17]

The single room rent determination applies to claimants under the age of 35, regardless of whether they live in shared accommodation or not, unless they fall within one of the exemptions.[18]

The claimant is allowed enough housing benefit to pay for a bedroom in shared accommodation (such as a bedsit) rather than a one-bedroom, self contained flat.

Exemptions

The exemptions are a claimant who:[19]

• is aged under 25 and was subject to a care order when aged 16 or 17 (before 31 May 2021 this exemption applied only to claimants under 22)

• is aged under 25 and was formerly provided with accommodation by social services under section 20 of the Children Act 1989 (before 31 May 2021 this exemption applied only to claimants under 22)

• receives the severe disability premium

• has a non-dependant living with them

• is an approved foster carer who either has a child placed with them, or who has not had a child placed with them for no longer than 52 weeks

• has spent at least three months in a homeless hostel (as defined in the regulations) and has accepted resettlement support. The three month period does not have to be continuous, or in a single hostel, or immediately before the housing benefit claim is made (before 31 May 2021 this exemption applied only to claimants under between 25 and 34)

• is an ex-offender who is subject to a Multi Agency Public Protection Arrangement (MAPPA)

• (from 1 October 2022) has experienced domestic abuse at any time since they were the age of 16 and can provide evidence that they have contacted a person in an official capacity in relation to a domestic abuse incident

• (from 1 October 2022) has been referred to the National Referral Mechanism (NRM) after experiencing modern slavery and has received a positive conclusive grounds decision

Hostel definition

'Hostel' is defined in the housing benefit regulations as a building:[20]

• which consists of units of accommodation that are not self-contained

• where either board or or adequate facilities for the preparation of food are provided

• which is either:

  • managed or owned by a registered housing association

  • operated other than on a commercial basis and in respect of which funds are provided wholly or in part by a government department or agency or a local authority

  • managed by a voluntary organisation or charity and provides care, support or supervision with a view to assisting those persons to be rehabilitated or resettled within the community

LA Welfare Direct 8/2020 confirms that the exemption from the shared accommodation rate applies where a homeless person has been accommodated in a hostel under the ‘Everyone In’ initiative and accepted support services. It is not necessary for the three months stay to be continuous or to be spent in the same hostel.

Re-purposed B&Bs and hotels satisfy the definition of a 'hostel' where:[21]

• places in hotels and bed and breakfasts were allocated to people on the basis of homelessness prevention

• clients are receiving equivalent care and support (or more) as they would in a usual hostel setting

• local authorities or commissioned providers have taken over the hotels (or sections of them) rather than booking individual rooms, and are responsible for providing the support to the client

• facilities are not self-contained (in other words, there are no kitchens) and clients are provided with meals

• the local authority funds the hotel as a block booking, creating a license with the claimant, so there is no commercial relationship between hotel and claimant

• the hotels and provision of care and support to the clients are managed on a day-to-day basis by voluntary/third-sector organisations

This means that if a claimant is over 25, has been previously accommodated under the 'Everyone In' initiative, they may be eligible for one bedroom self-contained housing benefit rate.

Special rules apply to exempt claimants and exempt accommodation. These are sometimes referred to as 'old rules' claims as they are based on regulations in force before January 1996.[22]

Exempt claimants

This covers housing benefit claims that have been awarded continuously from before 2 January 1996 on the same address (or on a different address if the move was due to fire, flood, explosion or a natural catastrophe).

Once these rules apply to a person, if they die, leave the property or are sent to prison (or similar forms of detention), their partner (or in some cases another household member) falls within the special rules so long as they make the claim within four weeks of that event.[23]

Exempt accommodation

This covers housing benefit claims made at any time by people renting from a non-metropolitan county council, private registered provider of social housing, registered charity or voluntary organisation, who receive care, support or supervision from their landlords, or someone on the landlord's behalf. This often referred to as 'supported exempt accommodation'.[24]

The regime governing eligible and ineligible service charges may still apply to accommodation classed as exempt, therefore there is no guarantee that all service charges are covered.[25]

Rent officer assessments for exempt claimants and people in exempt accommodation

Local authorities must make a referral to the rent officer in cases involving exempt claimants and people in exempt accommodation, even if the authority considers the rent to be reasonable. [26]

The rent officer supplies figures to the local authority. The eligible rent can be restricted if the rent officer determines the rent is unreasonably high or the dwelling unreasonably large. However, the rent officer’s figure is not binding on the local authority.

Before determining the eligible rent it must first compare the claimant’s rent with that of suitable alternative accommodation. In deciding what is suitable alternative accommodation the authority must:[27]

• look at accommodation which has reasonably equivalent security of tenure

• ensure it compares ‘like with like’

• take into account the age and health needs of the claimant and their household

An authority is not required to inquire into whether a landlord receives public funding and whether this affects the rent charged, when deciding what constitutes a reasonable rent for suitable alternative accommodation. The local authority has the discretion as to the appropriate amount of any reduction in the eligible rent, and there may be a strong case for tempering the reduction where to do otherwise would lead to the homelessness of the claimant.[28]

Where the claimant’s household includes a child or young person the alternative accommodation must be available and it must be reasonable to expect the claimant to move.[29]

Ongoing claims before October 1997

In addition, for claims that have been awarded continuously from before 6 October 1997 on the same address (disregarding breaks in the award of no more than four weeks), the eligible rent is halfway between the claim-related rent determination and local reference rent determination (but only if the rent officer issues a local reference determination). This is often called a '50 per cent top-up'.[30]

If the claimant has a registered fair rent, or has a tenancy that began before 15 January 1989, their details are not referred to the rent officer and it is unlikely that their eligible rent will be restricted.[31]

There are two important protections that apply in all the above cases:[32]

• If the claimant and household could afford the accommodation when they took on the tenancy, and the claimant has not been in receipt of housing benefit in the 52 weeks prior to the claim, no restriction can apply for the first 13 weeks of the claim. This  protection can only be granted for one 13-week period per household[33]

• if a claimant's home is regarded as too large because someone has died, the rules work as though the person had not died for the first 52 weeks of the claim (so in counting the number of rooms needed, the dead person is included)

Authorities have a residual power in all the above cases, even ones where the protections apply, to reduce (or further reduce) a person's eligible rent.[34] This is used only rarely.