Bedroom Tax- The DWP confirm and define what is a bedroom!

I have written a lot about what is a bedroom – that simple question that is highly pertinent to the bedroom tax debate.  After all I argued, how the hell can you tax something which you are unwilling to define?

I have often cited the A4/2012 HB circular as the official guidance from the DWP to local councils and it is explicitly clear the DWP will not define what is a bedroom.  It says:

Bedroom size

We will not be defining what we mean by a bedroom in legislation and there is no definition of a minimum bedroom size set out in regulations. It will be up to the landlord to accurately describe the property in line with the actual rent charged

Now I read an article in Inside Housing with regard to the Scottish issue which I discussed here and in that article we have this:

A DWP spokesperson said the department did not fear legal challenges due to the lack of definition of a bedroom. He said it is clear that the definition of a bedroom is up to landlords and is whatever is stipulated in individual tenancy agreements.

As you can see the DWP spokesman has said that a bedroom is whatever it says on your tenancy agreement.  This IS a definition from the DWP and IS a fundamental change.

Is this a case of a DWP spokesman overstepping the mark and creating new official guidance or is this new policy and the DWP has defined what a bedroom is?

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UPDATE & COMMENT

What is NEW here is that the DWP has never before said a bedroom is what is says on the tenancy agreement.  It may have been implies or inferred but as you can see from the A4/2012 above it has never been said before and that is very significant indeed, assuming this is now DWP policy and not an accidental or even deliberate piece of misinformation from the DWP spokesman.

The guidance has always said it is up to the landlord to define the number of bedrooms a property has and the social landlord could do this in a number of ways – they had choice in other words, So the landlord could reclassify and or classify this in ‘x’ number of ways.  Now the DWP has defined what is a bedroom to mean what it says on the tenancy agreement and taken away any inference and made what it says on the tenancy agreement definitive.

A tenancy agreement is a contract and is subject to legal interpretation – it could say the moon is made out of cream cheese but doesn’t make that legally binding – and we have seen tenancy agreements having their terms ruled as unfair in the past.  That means – obviously – that a tenancy agreement is NOT definitive and is subject to the law.

So is a tenancy agreement that says a property has 3 bedrooms when in fact it is only 2 bedrooms plus a boxroom fair?  The courts can now decide and directly because the DWP has defined a bedroom as what is says on the tenancy agreement.  Before this new change and explicit definition a court case could falter as what the tenancy agreement says was NOT definitive in determining whether the bedroom tax applies.  Now with this change it does say the tenancy agreement is definitive.

So a tenant taking a case that the tenancy agreement was wrong was, until today, potentially not going to get into court to be argued.  But now the DWP has made the tenancy agreement definitive that constraint or block on a tenant legally challenging the terms of the tenancy agreement has been removed.

This is why in my opinion the DWP has steadfastly refused to define a bedroom for bedroom tax purposes.  Yet saying it reveals precisely and openly what the policy does in placing social landlords in a bind and between a rock and a hard place.  Now that they have said this explicitly, it shows that the social landlord WILL face legal challenges from tenants on the number of bedrooms that the social landlord informs the local council each property has.  It exposes the social landlord to a huge number of legal challenges from tenants on what is a bedroom and how they – the social landlord – has defined this in the tenancy agreement and the tenancy agreement alone.

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15 thoughts on “Bedroom Tax- The DWP confirm and define what is a bedroom!

  1. Some LA’s are now re-defining a downstairs dining room as an extra bedroom, even though the tenancy agreement states ‘X number of bedrooms’, thus altering the terms of the tenancy agreement without prior consultation. I foresee many challenges in the High Court.

  2. But is official guidance from the DWP binding or even relevant at all, in law? One would think not, otherwise there would be no need to pass laws at all. They could just change any law they wanted simply by issuing new guidelines.

    And if it IS the tenancy agreement that is the deciding criteria, then this could lead to the law being so unfair that it is unworkable. You could have the situation where we have two identical properties and two similar tenants who are using the rooms for identical purposes. However one is a tenant of Knowsley Housing Trust, who have redefined tenancy agreements based on what their tenants actually USE their rooms for and the other tenant is with a Housing Association who refuse change their tenancy agreements to reflect what rooms are being used for.

    Identical properties, identical tenants, identical use of rooms, yet one has to pay bedroom tax and the other doesn’t. Where is the fairness in that?

    Surely we cannot have a situation where Landlords decide who should pay this penalty and who should be exempt, that is the job of Parliament and why we have laws, is it not?

    1. Firstly, guidance has to be followed by councils and if they dont they have acted unlawfully and leave themselves wide open to challenge and legal action. Secondly I dont accept KHT have changed property size based on use, rather it is on size

      1. According to the CEO of KHT it is based on use.

        “Bob Taylor, chief executive of KHT, said a stock review showed some homes are currently classified as having more bedrooms than they actually have, because tenants are not using the extra rooms as bedrooms. “

  3. How does the Housing Act of 1985, section 326 come into effect here? How can this reform completely overrule what is already established by the Housing Act without even challenging what it stipulates?

  4. I have seen the Tenancy Agreement of a Friend, it specifies that they have a Kitchen, a Bathroom and Three rooms. Nowhere does it say the property has a bedroom, does this mean she cannot be charged the Bedroom tax.

  5. My situation has changed, I’m not in receipt of HB as I’m working full-time now, I was getting HB when bedroom tax became applicable from 1\4\2013 for 5 months, I appealed, on bedroom size less than 50 square meters, I won my appeal, now I’m trying to get landlord to reclassify property to a 2 bedroom, seems unfair HB are willing to follow judge ruling not a bedroom so therefore I am not responsible for charge for bedroom tax when I was on benefit , now as I pay full rent I am charged same rent for 3 bed property even though 1 room is less than 50 square feet, any advice would be appreciated. Landlord is saying bedroom tax nothing to do with them

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