Judge rules Housing Act (overcrowding) size issues apply to the bedroom tax

Last week I released the transcript of the successful bedroom tax appeal in Kirkcaldy in Fife – the case of  AHG  – which ruled a landlord and council held 3 bed property was in fact a 1 bed property.

This case opened up the room size and room usage and room purpose debates and a few more though the CIH dismissed this as being only pertinent to AHG’s property being a converted 1660 former manse house and not a standard modern property.  I disagreed strongly and said it meant every tenant should appeal the bedroom tax decision and the case below of DN proves without any doubt that the CIH view was incorrect.

Here I release another of the successful appeals in Kirkcaldy and this decision is on a standard modern property (as two more successful cases were also) will blow open the bedroom tax and is incredibly significant.

The judge ruling that a 66 square feet room is not a bedroom, that the overcrowding space standards do apply – the judge calls this the flip side of under occupancy – and the judge uses the A4/2012 guidance and the HB Regulations to detail WHY the overcrowding regulations apply.

This also strongly means that every HB decision on the bedroom tax needed to have taken the space standards into consideration, or in simple terms that the overcrowding regulations of the Housing Act 1985 in England and the Housing Act (Scotland) 1987 apply and HBR uphold that.

The bedroom tax affected tenant now has a legal ruling and should launch an appeal if an alleged bedroom(s) is less than 70 square feet in floor area and the chances of winning on that issue has increased massively.  If a bedroom tax tenant with a room of less than 70 square feet does not appeal then they are being incredibly foolish. 


DN and his wife live in an alleged 3 bed property and the children have flown the nest leaving them alone there, an all too typical scenario.  The council and landlord said it’s a 3 bed and so on 1 April the 25% bedroom tax deduction is applied.

Very shortly after the council reduce this to 14% as it agrees that one of the allegedly 2 spare bedrooms is used by a non-resident carer to sleep in.

DN then appeals on the alleged third ‘bedroom’ claiming it is only 49 square feet of usable floor space. The council disagrees and two weeks before tribunal is heard the council comes out to measure (itself significant) and says the alleged bedroom is 66 square feet in floor space.

The judge chooses to believe the council’s word on the size of the room, however nothing turns on this as the judge rules it is not a bedroom and the bedroom tax guidance and HB regulations support this and the overcrowding standards of the 1987 Housing (Scotland) Act apply.

Note well the Housing (Scotland) Act 1987 replicates the Housing Act 1985 with regard to overcrowding and the space standard and nothing turns on this.

The pertinent paragraphs of the judgment are below and the judge outlines Graham Sutherland’s (from the Fife Law Centre for the tenant) submission for the tenant at paragraph 19:

“..he submitted that the disputed room was too small to be classified as a bedroom.  In this regard he referred to the statutory overcrowding provisions of the Housing (Scotland) Act 1987. He submitted that in terms of section 137 of this Act a room of under 50 square feet fell to be wholly disregarded as sleeping accommodation.  In relation to a room between 50 and 70 square feet (the dimensions of the room accepted by me), this was only to be regarded as sufficient for a child under the age of 10.” 

 “Mr Sutherland had also earlier pointed out that in paragraph 63 and Annex C of Circular A4/2012 the Secretary of State suggests that claimants with additional rooms should consider taking in a lodger.  The inference from this was that an additional room should only be classified as a room was too small for this purpose and so should not be classified as a bedroom for the purpose of paragraph B13(5)”

The judge then decides on these submissions at paragraph 23 and this is the paragraph that will make landlords and councils, and indeed lawyers sit up and note (and make every tenant pop the champagne cork):

“…I would accept that the disputed room is of a size that would normally be regarded as too small to be used as an adult bedroom. I accept that the thrust of Mr Sutherland’s submission here, namely that under-occupancy can be seen as the flip side of overcrowding, and that it is relevant to have regard to statutory space standards.  These indicate that a room of this size is appropriate for use as sleeping accommodation by a young child but not an adult.  It is in effect regarded by section 137 of the 1987 Act as only half a room.  I also accept, having regard to Circular A4/2012, that paragraph B13(5) generally presupposes that to be classified as a bedroom a room should be large enough to be appropriate for use as a bedroom by an adult – or by two children.”

That paragraph is legal dynamite and says so much.

  • The space standards of overcrowding DO apply, in fact overcrowding is the flip side of under crowding or under occupancy.
  • The overcrowding room size issues found in legislation DO ‘read across’
  • Not only that but HB regulations 2006 paragraph B13(5) generally presupposes a bedroom is large enough to sleep an adult and be 70 square feet or more.  Or because HBR says that a bedroom is for either an adult or two children the size issue applies and
  • Councils should have considered this as part of the original decisions made.

I have always been of the opinion that the space standards should apply morally and in lay terms and may apply in legal terms.  I have been castigated for that view by every social landlord, by the NHF and outrageously by the CIH who scurrilously said I was giving tenants false hope and denying other more worthy cases of getting appealed.

Many housing lawyers have also said the overcrowding regulations do not ‘read across’ to the bedroom tax and I have read a few barristers opinions which say the same and I  must have appeared arrogant and conceited and bloodyminded in opposing such strong and prevailing views.  I was conscious of that perception yet felt it necessary to challenge on grounds of process – of which room size is but one argument and not synonymous – which have been borne out here and in the AHG case I reported last week. I was not alone of course in the importance I gave to room size and Jonathan Mitchell QC gave an early opinion which said room size and rooms usage are very important factors yet he too had his views attacked but of course all counter arguments to his views started “Respectfully I disagree” unlike the CIH who chose Inside Housing to launch a tirade and professional character assassination against me and they were wrong then and clearly wrong now.

We now have a court ruling on the matter and views and opinions no longer count as that speculation has ended and no longer can room size issues and the relevance and applicability of the 1985 Housing Act be denied.

Yes as I also said of the AHG case, a First Tier Tribunal case in isolation is not legally weighty, yet in context is hugely significant and especially so here.

The significance of this is that landlords and councils have to radically change not just their views but their actions. 

What it means for the bedroom tax tenant is easy – appeal, appeal, appeal on room size issues and the room usage issues the AHG successful appeal gave.

For landlords it means radical change and the words most uttered when landlords read paragraph 23 above will be four letters long and end in a ‘t’ or a ‘k’ with the word ‘oh’ in front of them.  I would suggest maybe as much as 20 – 25% of social landlord properties have a smaller bedroom (now room) of less than 70 square feet.  So many properties landlords thought were 3 beds are now only 2.5 beds yet this is actually a good thing for landlords as well as tenants.

I have explained before that councils do not have the powers under HBR to restrict or reduce HB payments from the current 3 bed level to a new 2.5 bed level because they can only restrict if the rent is ‘unreasonably’ high.  This is because the average differential between a 3 and straight 2 bed averages less than £6 per week according to HCA figures released in the last 2 weeks and so the same HB paid for the now 2.5 bed cannot be described as ‘unreasonably’ high. This also means as rental income remains the same there is likely to be little issue for landlord’s lenders over asset value and of course arrears are reduced by 25% too.

If that holds and I am highly confident it does then landlords will be very happy at this (once they get over the shock that the 1985 Act applies!) Moreover because 81% of bedroom tax households were said to under occupy by 1 bed, or 540,000 of them (DWP impact assessment June 2012) then this Fife judgment when replicated could take 135,000 households out of the bedroom tax altogether and reduce the landlord arrears risk by 25% as well.

This successful appeal and its decision could take out altogether or reduce from 25% to 14% up to 165,000 households from the bedroom tax  – this being 25% of the total 660,000.

It would also be welcomed by councils too.  They have a 25% lesser risk of homeless costs as 25% less homeless cases will be coming through.  It also means existing DHP budgets can go further too as there are 25% less DHP cases.

I also would strongly argue that councils should ALL revise their working definition of a ‘bedroom’ and rule out all rooms under 70 square feet – and landlords should lobby them to do precisely that.  That argument will mean more to a number of large social landlords and others who I put that argument too very recently and they will need to revise their thinking on this in light of the DN successful appeal and the inclusion of the overcrowding size issues and HBR tie-up in particular.

(My not naming them shows my motives to be professional as they will recognise.)

The coalition however will be spitting feathers!  The claimed (but highly disingenuous) £500m per year saving they sought from the bedroom tax would reduce by £125m.  Not only that but as we are almost half a year in to the bedroom tax this means £60m or so would have to be back paid to tenants wrongly assessed as having too many bedrooms. Note well too that those figures only relate to the room size issue and I strongly suspect the room usage issue from the AHG case will see many more disabled tenants having an alleged bedroom chalked off as it is used to store disability equipment or because its substantive purpose is not as a bedroom.

This case is hugely significant for the reasons above.


There are a few other aspects of the DN case I won’t discuss now for sake of brevity and because of that and a few other reasons relating to sensitive information in this judgment I have decided not to release the full transcript here.  The reasons do not impact in any way on the above and none of the above is in any way out of context. I will publish the full transcript shortly and it not being held back for any vanity, stealth or financial or other gain on my part.  All will become clear when I release it which is likely to coincide with a third transcript.

25 thoughts on “Judge rules Housing Act (overcrowding) size issues apply to the bedroom tax

  1. Agreed this is of huge significance for those that have a bedroom classed as ‘to small’.
    And people must appeal on these grounds….
    ROOM USAGE is also a huge issue. Which needs to be addressed.
    There are many people in ‘a 3 bed house’. Who have an exemption for the 2nd bedroom for an overnight care. BUT, their 3rd. bedroom is NOT, to small.
    This bedroom COULD be used to store medical equipment.
    Could be large enough to have a Lodger. (NOT that anyone wish’s to share their home with a stranger and all those implications)
    The room could be used for Grandchildren to stay over. Or, for people who only have their children to stay over at weekends.

    In these cases, there seems to be NO consideration of room usage taken into account.
    So, what do people do??
    At, the present time they are liable for 14% of their total rent. For a 3rd. bedroom, that is NOT spare.

  2. Our council now sending appeals to tribunal, this week 128 alone from one area. 108 of those have a box room too small to rent out. 56 have a boiler further reducing floor space & 24 have had at least 1 fumes leak from said boiler. The other 20 homes do not have a spare room. That’s 128 appeals the council could easily sort but they would rather pay tribunal costs?

    1. I think some (all?) councils will prefer initially to go to appeals, once they have been won or lost then the decisions and statements of reasons can be used to set additional policy by the councils… if they don’t do this then the gov has a reason to be vindictive and set a penalty against the council, although the council could then challenge this but I would has at a guess it would be a far more expensive route than letting it progress upwards through the courts.

      The next stage will have to be, I guess, a 2n’d level appeal raised by a council or someone who fails the first tribunal stage to see if there is a challenge on the basis of legal fault/technicality in law which I believe would set a precedent.

  3. We appealed in April as we have a “3 bed” house which myself, my husband and my 17 year old son live in. Our bedroom is a double, but we have a boxroom which is 55sq ft, and also have my sons room which is an “L” shape, as you walk into his room he has which can only be described as a 2 ft x 3 ft approx corridor, which CANNOT be used for anything (ie furniture space) other than for walking into his room ( hope this makes sense). On measuring his “useable” floor area it is 69sq foot, but if you add the “corridor” it brings it over 70sq ft. We to the council this (they own the property) and was told bluntly that as it states a 3 bed on our tenancy agreement, and we signed it, then that is what it is! And that the overcrowding act doesnt apply in this instance as the DWP says otherwise. We were told we could take in a lodger! Which we will not be doing, but surely if we put a lodger in our boxroom they would obviously be over the age of 10, and therefor we would be breaking the law as too overcrowding? Do you think we should put this too them again, and appeal, or is it too late as we have already? This is MORE than just about the money, its the princible, and the whole damn thing is wrong. Any advice please. Thankyou.

    1. Yes you should appeal and ask for it to be sent to the appeals court.

      You can argue that although the appeal is/maybe, out of time it should be allowed as the council didn’t tell you that you could appeal to a tribunal and they gave you false information by stating you couldn’t/didn’t allow you to which was/is your right.

      You can also state that your reasons are the same as the ones used already which have been allowed and won already.

      1. Thankyou Jonathan.
        No the council led me to believe that by me sending a letter to them that i WAS appealing, no mention of a tribunal, so i thought i had appealed :-/ To be honest i dont know where to start regarding going to a tribunal, do we need a solicitor as we couldnt afford one! Surely, this not only affects people who receive HB, but in princible is wrong anyway, as our neighbour ( tho i dont think receives HB) has the same property as us, and has 2 teenage children (boy and girl) so surely under the 1985 act they are overcrowded also? How can the council get away with this?

      2. No problems 🙂

        I can’t help with the appeals side as although I know how I’d possibly do it, it would take far to long to explain… but in simplistic terms would appeal based on the usable space and size, a simple written statement of the facts as you see them without any reference to principles, with references to the fife judgments and the “housing act 1985 part x” (google the quoted part to see it in detail). The council will then have to prepare its statements and papers. Finally you turn up at the court and state your reasons, they theirs, and the judge will then decide… it sounds a lot scarier than it is, the tribunals are a lot less formal than the higher courts, just in your own words “what you think is wrong and why you think its wrong.”

        As for overcrowding, after reading the ha1985 part X, the numbers of occupants calculated also takes into account a nominal number of people based on other rooms and their sizes… but that is not to say these rooms can be counted as “bedrooms” as they in their normal usage would not be used for such.

        I personally would also argue at tribunal that the gov ministers have repeatedly stated that the change is to bring HA/SR in line with the private rental market, quoting the relevent hansard paragraphs, and as such the same rules that would apply to PR (Private Rentals) should be used, such as checking the sizes, the usual use of the rooms in the locality (especially important in reguard to “granny/dining rooms” as these are rarely used as granny bedrooms anymore).

        I think after Joe has posted the specific documented reasons for the way the judegments went then it should be possible for people to use the same arguments/grounds.

        Joe, if you think anything I’ve written is incorrect/misleading can you let me know on here so others can have correct information; also is it possible for you to update your appeals letter and/or say what people should do and what happens at appeal if you have the time.

    2. Caz you need to write to the Council “you have reconsidered your decision without changing it, therefore please forward my letter of appeal dated x of April immediately to the Tribunals Service and inform me when you have done so”. Keep on at them until you receive that confirmation. The Tribunals Service will write to you direct, enclosing a brief questionnaire that you have to return to them to help them arrange the hearing. You can nominate someone to represent you if you wish, but at the hearing the Panel will want to hear YOU and your husband. At my son’s appeal hearing about his ESA claim he had a representative but the man didn’t say a word, the Panel wanted my son to answer their questions himself and they also allowed me to answer one of the questions. Your chance of winning is excellent because the Tribunal decisions in favour of the tenants are beginning to come thick and fast now.

    3. Caz

      Many councils tell tenants that overcrowding size issues dont apply yet regardless of what DWP say or what councils or landlords say the ONLY opinion that matters is the courts.

      The courts have ruled in the DN case here that they DO apply.

      In you specific case – the boxroom is that and the judge in the DN case states that anything under 70 sq/ft is not a bedroom. The same judge in the AHG case discussed the L shaped room scenario and introduced the concept of usable floor space.

      Lodger issue was also discussed in the DN case and again the 55 sq/ft room cannot be used.

      NB – In both case above the landlords said each was a 3 bed. In the AHG case it was ruled to be a 1 bed and in the DN case a 2 bed – what is says on your tenancy agreement is therefore of no consequence whatsoever!!

      Finally, as you state this is a council house I presume there are others locally to you who will be in the same predicament with similar room sizes. Why not ask around and see how many neighbours are and you can all put your heads together and ALL submit appeals (though dont use a standard same letter) – the appeal is your right and if there are a number of you then you can all support one another rather then feeling alone. That can be a great help

    1. That’s another reason why if others locally have the same issues then the burden and stress of appealing is hared by you all.

      While I recognise that tenants going through the appeal process will be stressed because of it, the appeal process is not a burdensome one and if others locally are in the same boat than getting together can only see everyone supporting the other which does reduce the stress as you are not alone and good luck too

    2. That’s another reason why if others locally have the same issues then the burden and stress of appealing is shared by you all.

      While I recognise that tenants going through the appeal process will be stressed because of it, the appeal process is not a burdensome one and if others locally are in the same boat than getting together can only see everyone supporting the other which does reduce the stress as you are not alone and good luck too

  4. There are many groups on Facebook, fighting the Bedroom Tax. You may find it useful to join and you will have advice and support from others going through the appeals process. Many have already won their appeals on room size……

  5. I live in a council house. Apparently when I signed my tenancy agreement 18 years ago or more I signed for a 3 bedroomed house. Therefore my house is a 3 bedroomed house according to them. My house has 2 bedrooms and a room less than 70 sq feet because it sits at the top of the stairs and the stairs are blocked off by a box which comes out into the room and takes up the floor space. You could just have enough room to build a double bed in there but it would touch the wall head to feet and there would be possibly just enough room to get out of bed on one side and then get out of the door direct opposite the foot end of the bed. considering that there would be no more room than the space to put the bed in I feel confident that this room would not qualify as a bedroom despite the Council listing it in my tenancy agreement as such. So who exactly do I appeal to

  6. I am also worried that i will be seen as a “pain in the ar*se” tenant, and although the council own the property, i dont want to lose my “home” because it is my home

  7. Caz H – why? You will be a tenant, a person just seeking what is right.

    A Godwin – In the two cases I have reported on so far the first signed a tenancy to say it was a 3 bed and the judge ruled it was a 1 bed. In the second case (above) the tenant signed for a 3 bed and the judge ruled it was a 2 bed.

    What your landlord thinks the property is and what it is in law are two different things.

    You appeal to your council and ask for form GL24 which is the form you can submit and state your room size issues with full measurements. A simple drawing would help too to explain how the stairs cut into the ‘room’ (ie not a bedroom)

  8. I have a 4 bedroom house.
    I’ve just checked the bedroom dimensions on original brochure, from when we purchased the house.

    Two of the bedrooms are ‘just’ under 70 square feet.

    Should I sue the builders who sold me the house?
    After all I paid for 4 bedrooms.

  9. Hi Joe… Any chance you could put one on the Stop appeal group please??

    And also, people, one a Lawyer, are saying the Fife judgement does not apply anywhere other than Scotland??? And we won’t win appeals on room size!!!

  10. I’m guessing that my 2nd bedroom is more than 70square feet but my math is absolutely hopeless! can anyone tell me what the squre footage is of this measurment please? 12ft 3inch x 9ft

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