Bedroom Tax – overcrowding more illegalities and perversities

Remember the Waltons? No not goodnight John Boy, goodnight Mary Ellen …the sextuplets born in Wallasey in 1983. You think they would have turned out differently if they lived in a 2 bed house…as that’s all they would have been entitled to under the bedroom tax. Wonder how they would have coped in a 10ft by 7ft bedroom? Sorry getting ahead of myself there wasn’t I? With the government refusing to determine a minimum bedroom size it could have been 6ft by 6ft as Sally Adams has commented on one of my blogs from August 2012 on what is a bedroom a room size of 6 x 6 she is having classed as a bedroom and being hit by the bedroom tax!

“Same sitituation going to fight it out 2 bedroom and a box room 6foot by 6 foot. Wat the f…k Yh and it used to be upstairs bathroom witch they moved by kitchen so we don’t even hav toilet upstairs and they want us to pay for that lol”

Yes that’s 36 sq/ft – a bedroom…allegedly…one that’s 33% smaller than the 48.5sq/ft room that a private landlord in Reigate was successfully prosecuted for renting out last month, but still big enough under this governments plans for the bedroom tax to house Ruth, Luci, Jennie, Sarah, Kate and Hannah Walton – that is all they need!

Bunk beds have a floor area of 19.5 sq.ft each so 3 sets have a floor area of 58.5 sq.ft, though knowing this government and maths I’m sure IDS will be able to tell us how we can fit 3 sets of bunk beds into a 6ft by 6ft room!

One room 6 feet by 6 feet with 6 fifteen year old girls – that’s this coalition’s bedroom tax definition of need!

It is not just the absence of a definition of the minimum bedroom size that is irrational it is the de facto definition of need for bedrooms the bedroom tax does have that is irrational as the above example proves! Yes as I said yesterday the coalition have determined in the bedroom tax regulations the definition of ‘need’ but absolutely rule out a minimum bedroom size definition.

Anyone can see just how irrational that is, everyone except the government of course! Though that statement assumes the coalition are capable of thinking which is a huge assumption in itself and especially in the case of the bedroom tax. It is irrational to not define a minimum bedroom size, irrational to say 6 fifteen girls only need a 6ft by 6ft room and irrational to absolutely define one and not the other.  It is also unlawful as I explain later.

The Walton sextuplets example is of course an extreme case though it is used to highlight that the bedroom tax is irrational. It is also a criminal offence under the space standard as defined in law in section 326 of the Housing Act 1985. I quote directly from a House of Commons Parliamentary paper (SN010113) from 2011 in which it discusses overcrowding and size standards – the exact same issue as the bedroom tax.

“This standard works by the calculating the permitted number of people for a dwelling in one of two ways. The lower number thus calculated is the permitted number for the dwelling. One test is based on the number of living rooms in the dwelling (disregarding rooms of less than 50 square feet):

  • one room = two persons
  • two rooms = three persons
  • three rooms = five persons
  • four rooms = seven and a half persons
  • five rooms or more = ten persons plus two for each room in excess of five rooms.

A child below the age of one does not count and a child between the age of one and ten counts as a half person. (Another example of the fractional person I discussed here in ways to get around the bedroom tax!)

The other test is based on floor areas of each room size:

  • less than 50 square feet = no-one
  • 50 to less than 70 square feet = half a person
  • 70 to less than 90 square feet = one person
  • 90 to less than 110 square feet = one and a half persons
  • 110 square feet or larger = two persons.

When originally introduced in 1935 the standards were viewed as a threshold that could be strengthened: The standard laid down need not be regarded as the ultimate ideal to which we should work. It is one upon which it is possible to begin to get this reform underway.

Breach of the statutory overcrowding standard is a criminal offence. When the standard was originally devised in the 1935 Housing Act it was aimed at dealing with overcrowded conditions in the private rented sector before the Second World War. Local authorities have the power to take action against landlords of overcrowded properties on a tenant’s behalf. However, where a statutorily overcrowded household lives in council housing, the local authority landlord cannot take legal action against itself without the express consent of the Attorney General. Shelter has noted that the Attorney General has never agreed to let a case of overcrowding by a local authority proceed to court.”

Anything under 50 square feet is not a bedroom and IS defined in law and has been for 78 years IDS and DWP so please note!

Go back to my 2 bed /4 and 3 bed /4 example and 50 to 70 square feet is for half a person so both are not underoccupying yet the latter are hit by the bedroom tax – perversity writ large!

Now go back to Sally Adams example above.  Her third ‘bedroom’ that is 6ft by 6ft is deemed a bedroom for bedroom tax purposes yet contravenes a 1935 Act!  Yet ifs someone did reside there and let’s say she took in a lodger as the coalition say she should then she would be overcrowding and liable to prosecution by the LA…well only if she didn’t live in a council house!  If she lives in a housing association property or in private rented accommodation she would.  Does this then mean she has a challenge to this under the HRA? She is being denied the opportunity to stay in her home because she can’t rent out the ‘room’ to a lodger which she needs to do to be able to afford the bedroom tax which shouldn’t in any case be applied because it is not a bedroom!

How about the Walton sextuplets?  Yes the bedroom tax regulations say all siblings under 16 can share a room as I highlightedd yesterday in the official guidance of the A4/2012 HB circular.  Yet that guidance is unlawful as it contravenes the 1935 Act!!

Confused yet?  Read the rest of the very readable HoC paper and then ask why the bedroom tax regulations flouts all the available evidence on overcrowding and Housing Law.  Also bear in mind that HoC papers are perhaps the most objective discussions you can read given they are prepared for all MPs of all parties and so by definition (no pun intended) avoid subjectivity and bias.

You could also ask why if the National Housing Federation predicted in 2009 that overcrowding would soar 15% because of the recession and mentioned in the above paper why it hasn’t updated this to reflect the vagaries and irrational bedroom tax aspects I am discussing here!

The bedroom tax does increase overcrowding and statutory overcrowding in its definition of ‘need.’  It is irrational for that reason too.

The bedroom tax by not defining a minimum bedroom size, despite Housing law since 1935 having a minimum bedroom size can and is being applied unlawfully I would argue in the case of Sally Adams.

Time for yet another comment on my post of yesterday on the bedroom tax and how to avoid it.  This time from Mark Kneale:

“One solution put forward has been to rent out the extra bedroom/s. Would the minimum bedroom size apply to all lodgers, even if it does not apply to the tenants? If it comes down to each local authority to apply rules for HMOs, can it be challenged that some authorities prohibit lodgers in small bedrooms while others don’t?”

As my beloved other half said to me over the weekend, there is no such thing as original thought so don’t you come across as an arrogant sod in all these bedroom tax posts?  You can see that I haven’t just come to the bedroom tax debate having walked the road to Damascus.  Yet that is a huge point.

If I who inhabit the strange and complex and niche world of supported housing and exempt accommodation can see (with prompting) all the irrationalities and perversities and potential illegality of the bedroom tax policy then just what the hell have social landlords and social tenant groups been doing this past 18 months?

My primary role since 2003 has been to challenge local authorities who have sought zealously to reclaim SP funding from smaller specialist housing support providers.  So while techniques (and obtuse thinking?) in challenging decisions are transferrable skills I have used here in the bedroom tax, overall benefit cap and other irrational welfare ‘reform’ discussions, it surely cannot be the case that these potential challenges to the dog’s breakfast that is the bedroom tax have not been seen by social landlords and social tenants and social tenant groups.

Time for landlords and tenants to sit in a darkened room, highlight the potential challenges and then go see, individually or collectively, those who could challenge (lawyers, opposition MPs – yes they deserve huge scorn!) this pernicious policy known as the bedroom tax and stop bloody moaning about the consequences.

Get off your respective arses and challenge!

Update 12.50am Tuesday

Just published the above and had some more thoughts?

Can the government be charged with conspiracy to commit a criminal offence?  Probably not yet that is what their guidance advises local government to do.  It’s also what their guidance on taking in a lodger to mitigate the bedroom tax does if the ‘spare’ ‘bedroom’ is not in fact a bedroom.  Even more bizarre is that in law the local authority can prosecute a housing association tenant who does this!  No this is not a script from Yes Minister or The thick of It, this is official government policy!

How about can tenants sue landlords for conspiracy and actually creating a criminal offence?  This is much more interesting.  If a social landlord says a property is a 3 bed property when its only 2 bed and a ‘boxroom’ and this leads to the bedroom tax being imposed.  Then can the tenant sue the social landlord for the complicity here and for the fact that the smaller boxroom is not a bedroom under the 1935 Act?  If the social landlord by stating it is a bedroom contravenes the space standard from the 1935 Act and exposes the tenant to prosecution under it for inhabiting that room is the social landlord exposed to a legal challenge from the tenant?  Further according to the space standard the spare room size would only have an occupancy level of half a person and not a full one so how can that be one bedroom too many under the bedroom tax?  It surely is only 0.5 of a bedroom more than the occupancy ‘need’ and therefore less than the one bedroom ‘spare’ for the bedroom tax to be applied!

In my post yesterday that said landlords should accurately classify a smaller room measuring 9 x 7 ft as 0.9 of a bedroom which is what the official bedroom tax guidance says – and so get around the bedroom tax – then perhaps social landlords especially housing associations (who unlike councils landlords appear immune from legal exposure) should reclassify the 9 x 7 ft boxroom as 0.5 of a bedroom instead.  Which is more accurate?  Oh I see the bedroom tax now asks us to define what is accurate!

The farce of the bedroom tax gets deeper and deeper the more you look doesn’t it?

I’m sure the potential legal implications are not covered comprehensively above yet they do place a huge burden on social landlords and particularly housing association landlords.  Interesting that Lord Freud said yesterday in front of the select committee on welfare reforms that one of his key tests for direct payment of HB was that housing associations – and he made that distinction from other social landlords such as councils very clear – was for the reform not to penalise housing associations.  Yet that is exactly what the bedroom tax does to housing associations Lord Freud as the HoC paper above confirms – they can be prosecuted if they follow the DWP bedroom tax guidance but council landlords can’t!

I wonder why the NHF have not raised this very interesting ambiguity with the government.  You work for a HA and will be the one responsible for dealing with HB queries over the numbers of bedrooms?  My apologies for the sleepless nights this has just caused you!  What was that you are going to see your union and demand they ask your in-house legal team issue a full and comprehensive policy on that role?  Good thinking I don’t blame you at all!

Hmm does a council need the Attorney General’s permission to sue an ALMO?  Cue ALMO executive management teams scurrying around to find out…and write a policy just in case.  Cue Unions and housing lawyers and employment lawyers rubbing hands with glee…

Just think of how many other consequences of this dog’s breakfast known as the bedroom tax were not found in the DWPs impact assessment.  Just think how many a darkened room with landlords, tenants, lawyers and union reps could find…

What did the junior government minister say the other day…oh yes if there’s something we haven’t considered in the bedroom tax or new matters come to light we will reconsider it!


Update and correction

Some have pointed out that the Walton sextuplets would be entitled to 4 bedrooms under the bedroom tax and of course they are right.  My fault for misleading by misreading the bedroom tax guidance.

However – under the space standard I mentioned above and I have cut and pasted below the Waltons could still be entitled to a 2 bed house. Eh?

“This standard works by the calculating the permitted number of people for a dwelling in one of two ways. The lower number thus calculated is the permitted number for the dwelling. One test is based on the number of living rooms in the dwelling (disregarding rooms of less than 50 square feet):

  • one room = two persons
  • two rooms = three persons
  • three rooms = five persons
  • …..”

The 6 children all count as half a person making 3 and the parents count as 2 persons making 5 in total which is a 2 bed house with one living room used as a bedroom (three rooms),  When there is no ‘living room; to be classed as a bedroom this still makes a requirement for a 3 bed property and not a 4 as the bedroom tax would state. 

It would be wrong to see this as inconsequential however or just an obtuse argument.  If HB officers have to decide the number of bedrooms and rely upon the social landlord to state its view – which they do all because the government refuses steadfastly to define a bedroom – then a 4 bed property with two living rooms could see the Waltons family be under-occupying and subject to the bedroom tax.  The bedroom tax regulations allow much subjectivity and for a HB officer in Liverpool to have a different view to a HB officer in London or Stoke or anywhere else.  The guidance is therefore irrational and incomplete.

This line of argument features greatly on many of the Facebook bedroom tax sites.  There are many 3 bed ‘parlour houses’ as they are known which is 3 bedrooms and a second living room or ‘parlour’ and so many social landlords have already apparently said these are 4 bed houses for bedroom tax purposes, and even with the tenancy agreement stating they are 3 bed houses!  This specific issue has led to tenants rightly in my view stating social landlords are complicit in the bedroom tax.

And if wish to be confused some more this makes these 3 bed / 7.5 person properties!! Yet does it?  What if the smallest bedroom IS less than 70 square feet is it a bedroom?  This reveals (again) the absurdity of the bedroom tax theory when I remind you again the reduction kicks in when one there is one BEDROOM more than needed and not one ROOM.  The same 3 bed parlour house could see a single parent with a ten-year old daughter and eleven year old son be deemed not subject to the bedroom tax by one HB officer in London but see the Waltons deemed to have a 14% cut in their HB by another in Liverpool! There is that much subjectivity in the guidance and that can’t be right!

Rip it up and start again, I say rip it up and start again…I hope to God you’re not as dumb as you make out- for some reason, that old song from the 80s by Orange Juice.  Yes it can apply to my mistake above (which bizarrely could still be valid that the Waltons only need a 2 bed house!) but far more so to the coalition and this dog’s breakfast of a policy.


16 thoughts on “Bedroom Tax – overcrowding more illegalities and perversities

  1. Hi. i’ve spent a long time this morning reaing most of the posts. Clearly there is a case to be made on bedroom size, for many. And hopefully, many people will challenge this. That could mean printing off the posts and sending them to your Council or HA. Who may well have not looked at the impact of the bedroom tax. I would like to make a few points on other situations though, regarding the Bedroom Tax. and many do need clarification and are there any legal challenges that can be made?? My own circumstances are, that I am 56. I have lived in my 3 double bedroom HA house for over 21 years. Have spent a lot of money on my HOME and garden. I am now Disabled. 95% bed bound and I am Bipolar. My house has been adapted for my needs and I have just had an OT assessment for a stair lift. One of the ‘critea’ to be exempt is to have had ‘significant’ adaptations. It’s difficult to find information about that, but I believe, it means for a wheelchair user?? Where does that leave the rest of us? Having to pay the BT, that’s where. Also, an overnight, resident carer?? How many nights?? Well, WHO decides that? If it’s social services, You are stuffed. They have a high critea, that doesn’t take many peoples circumstances into consideration. So, yet again, that leaves you having to pay the BT. I’m not moving to a 1 bed flat!! I have animals so need my garden. They are all I have and my reason for waking up in the morning. What would I be expected to do with them? Have them put to sleep?? i’d be following them in a wooden box, for sure. THEREFORE, I WOULD need A 1 BED. ADAPTED bUNGALOW. There aren’t any. I have a support network of neighbours. I have my carers, who come in every day. I could never cope mentally with moving. I cannot afford to move. Buy new carpets, decorating, etc. Or, even do any packing. Where is the protection for people with mental health issues? Many people have already committed suicide. And, I fear there will be MANY more, before this Government are finished. People simply cannot cope. it’s the poorest and most vunerable, that are being attacked. surely, someone, somewhere must be able to help us?? It must be against our Human Rights?? But we don’t know where to turn for help. Yes, we belong to facebook groups, for support and advice. But feel helpless. We are told to get a Lodger. Absolutely, NO WAY, could I contemplate that. Then there is the DHP. apply for that. Councils are making up their own rules and how to implement it. A high critea to get it. AND it’s only short term. That, ‘pot’ will eventually run dry!! So, then what?? Back to square one, IF, you manage to get it in the first place. I, DO NOT want to move. And, why should I?? Is it my fault that Thatcher wanted people to buy their council homes. That new properties havn’t been built?? NO, it isn’t. So, why should I be made to suffer?? Be put through all the anquish and stress. Of this, totally, unworkable policy. ALSO, something that hardly gets touched upon, is the fact that people will be paying different amounts. DEPENDING on where they live in the country. Someone in the South will have to pay more, because, rents are higher. Than, someone in the North. For the same size property. at the end of the day, we all get the same rate in benefits. So, HOW is that fair?? I’ve contacted a few Human Rights lawyers. they all say the same. They can’t take on the Government and the cost would be huge. So, they have us, ‘over a barrell’!!
    There’s also, in the small print, of the Disability fund grant. That, if you move before 5 years. You have to repay the grant. Thousands of pounds. Where from??
    So, here I am. I have to pay 25% of my £115 a week rent. If I get into arrears. I can be evicted and be homeless. So, is it a case of eating, or heating your home?? Or, paying your rent shortfall?? I have just spoken to my Housing Association. Went over everything. To be told it is out of our hands. I said, why aren’t you fighting this on behalf of your tenants. We can’t, she said. So, in other words, they don’t give a damn!!, as long as they get their rent!! And lets not forget, they will be putting our rents up. Therefore, we will have to pay even more. I feel sick to my stomach.

  2. Hi Debbie Price,

    Horrendous isn’t it? People are seen as numbers not people. This government is driving people to despair.

    There is always the Discretionary Housing Payment to try to get to make up the shortfall, however as once the pot runs out there is none left this is only going to help limited people even if they are able to claim it.


  3. This blog is misleading and, frankly wrong – i read up to your example of the Waltons, and how the government ‘expect’ 6 girls under 15 to live in one room, this is fundamentally not correct.

    Under the new ‘bedroom tax’ the waltons would be entitled to one bedroom for the parent(s) one bedroom for 2 girls, another for another 2, and a 4th bedroom for the remaining 2 girls.

  4. Jonathan – I have corrected the above after similar comments over the Waltons ‘need’ – Yet the absolute perversity of it could still see a HB officer decide they are only entitled to 2 bedrooms. So while I agree that the original was misleading it was not ‘frankly wrong!’

  5. Hmmm. I have had 2 children living in a room that is less than 7sq meters (i.e. very squashed) in a private rental. My kids were not protected from overcrowding because we pay the rent ourselves. Likewise there are many kids living in owner occupied homes that share very small, cramped bedrooms and nobody is speaking out for them.

    I feel for people in social housing who are going to have to pay more because of the bedroom tax but it really is a luxury to have a spare room, regardless of size and there is absolutely no protection and no concern for children in private rentals whose parents pay the rent themselves or those sharing in owner occupied housing. Why is there only concern for children sharing a very overcrowded room only when they are in social housing or when the state is paying their rent? Isn’t that discriminatory?

    1. Firstly, the room standard is not 7sq/m which is 75 sq/ft it is 6.5sq/m which is 70sq/ft.

      My kids are not protected from overcrowding because we pay the rent ourselves – is incorrect. Councils have powers to prosecute all renting landlords including private ones from renting out (a) rooms that are too small and (b) from statutory overcrowding a property. If you look at bedroom tax part 1 you will see these blogs have been ‘inspired’ by a council prosecuting a private landlord for renting out a room that was too small – the Reigate case.

      Spare room – social tenants are subjected to the bedroom tax in some cases where they dont have a ‘spare’ ‘bedroom’

      Discriminatory? No. Tenants in private rented accommodation receive housing benefit (LHA) based on their family composition and the bedroom tax does the same – in fact in theory it removes that discrimination and so puts social tenants on the same level playing field as private ones.

      However while housing benefit (LHA) in the private sector may respresent a 14% reduction for 1 bed less and a 25% reduction for 2 beds less, which it broadly does, the differential in social housing in rent levels is not as stark. So this means you can have a family in a 4 bed with a rent of £100pw having a 14% reduction taking HB paid down to £86 yet if they already lived in a 3 bed with a rent of £90pw then all that £90pw would be paid. Similarly if the ‘need’ was just for a 2 bed a 25% reduction takes HB down to £75 per week yet a 2 bed rent would be £83pw and so again the cut reduces the actual HB payment to below that what other families receive who are not under-occupying

      In short reducing HB by the crude and simplistic 14% and 25% means such under-occupying tenants are worse off and receive less in HB than other families of the same size who are not under-occupying and in the latter case above its almost 10% less.

      Finally it is not a luxury to have a spare room regardless of size. If you are being charged for that room and that room is 45sq/ft as in the Reigate case then it is not a bedroom yet tou are paying for a bedroom in your rent. Further that ‘room’ because the B/T guidance explicitly states it will not define a bedroom or it size means you can be hit with the bedroom tax when it shouldnt lawfully apply under Housing Law. I don’t call that circumstance a luxury, it is a penalty and a tax not a luxury

  6. Joe, what do you believe the major reason is why the government refuses to stipulate in law (not just bedroom tax but anything regarding bedrooms) what a bedroom size must be at a minimum?

    My thoughts (and I might be clutching at straws) are:

    1. If HA or LA properties are under this minimum size then they may have to reduce their rents say from a 3 bedroom rental charge to a 2 bedroom rental charge which would affect their incomes and for the HA’s, this could reduce the money available for building new homes.

    2. The level of reported over occupied houses would increase if HA’s and LA’s suddenly decided a property had 1 less bedroom than previously stated.

    3. The government wouldn’t want to get into a debate about minimum sizes as we already have some of the smallest houses in Europe and wouldn’t want to upset the housebuilders.

    1. You clutch at straws very well – only the ‘straws’ are the size of telegraph poles!

      One major issue to add to your correct views concerns the selling of properties and estate agents. How could an estate agent advertise a 3 bed property for sale when in law it would be a 2 bed and a boxroom? That is why I mentioned Sale of Goods Act, Trades Descriptions Act etc (in my lay way and for all I know property could be an exemption from those Acts, though I doubt it)

      it is also why I referenced a former council house – a RTB – being sold as a 3 bed when the smallest ‘bedroom’ was less than 70sq/ft.

      Take that to its logical conclusion and the mis-selling of property is much bigger than the mis-selling of PPI insurance, pensions and other scams we have seen from the financial sector. It is a minefield!!

  7. put simply – it terrifies me, housing arrears are going to skyrocket and many tennants will simply be unable to afford to pay these new charges. surely there are limited exchanges which will force people unable to obtain an exchange to run into massive arrears, which for those on benefits will be unable to clear. this is a disastrous and very harmful move by the government ! how many prison sentences will occur due to court actions brought on by local councils, the prisons are full now!

  8. I’ve just had a though: when the Government shouts about the number of families currently living in overcrowded accommodation, is it using the previously accepted definition of overcrowded, or one that corresponds to its new policy, the policy that doesn’t take into account room size, and now expects older children of the same sex to share rooms?

    Call me a synical bugger, but I would be willing to bet that they are still using the old definition right now, but will conveniently amend that once the bedroom tax is in operation. In other words, hey presto, the number of families living in overcrowded accommodation will fall overnight,, even if not a single one of them has been re-housed! I can hear the Government already: “Our policy has been a great success – look, these figures prove it!” What’s worse is that Joe Public will fall for it hook, line and sinker.

  9. I have a 3 bedroom council house. It was a 2 bedrooms house 14 years ago but they took the bathroom out from upstairs and put it down stairs making a extra bedroom of 6ft by 6ft. I do have 3 children 2 boys and a girl. If they are saying a box room like my daughters is not a bedroom does that mean I’m over crowded? My house is ok at the moment but as the children get older the house is going to get smaller if you understand me. The house was built as 2 bedroom so in theory it would house 4 people I know it’s only one extra body but they do take up room.

  10. Hi deedarlfc When they changed your house into a 2 bed. Did they give you a new tenancy agreement?? As it’s normally, what it states on your tenancy agreement. Equals the amount of bedrooms you have.

  11. I can also see anyone that can still have children having more so they don’t have to pay the bedroom tax. I know of someone she was in a 2 bed flat with 3 children 2 boys and a girl. She went to HA and asked if there was any chance of a bigger house. Their reply was no but If u had another child then you would be entitled to a bigger property. So she got pregnant and got a 3 bed house.

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