Humerus, rectum and DWP Bedroom Tax guidance in the U6/2013

The DWP is clearly running scared of the bedroom tax appeal successes in Fife and has come up with perhaps the most bizarre HB Circular I have ever seen, the U6 of 2013.

On first reading I was reminded of Dad’s Army and Corporal Jones running around shouting “Don’t panic Mr Mainwaring.” It really is that bad and comical and for example read literally the coalition announces that in their view 15.2 square feet is a minimum bedroom size! (Get measuring under your stairs people after all if Harry Potter can sleep there…..!)

A ‘bedroom’ has to be big enough to accommodate a single bed which is 15.2 square feet or 30 inches by 73 inches.  I am of course being generous here as “…whether a room is large enough to accommodate at least a single bed” which is what the DWP has said I assume means an adult single bed and not a child’s single bed or even a cot.

Let’s have a look at this in some detail.

HB U6/2013    23 September 2013 Removal of the spare room subsidy



1.         It has recently been reported that two First-tier Tribunal cases resulted in findings that rooms designated by the landlord as bedrooms were not capable of being such for the purposes of the Removal of the Spare Room Subsidy (RSRS) regulations. This is because the judge determined that the rooms did not satisfy the “space standard” as set out in section 326 of the Housing Act 1985 and section 137 of the Housing (Scotland) Act 1987 which is used to assess statutory overcrowding.

Straightaway there is a huge error.  There were three cases in Fife which dealt with minimum room size namely Annie Harrower-Gray (SC108/13/01318; Davie Nelson (SC108/13/01362) and Withheld (SC108/13/01445) and not two as the DWP say.

Secondly the judge did not rule they breached the space standard at all, he ruled that the under occupancy bedroom tax is the flipside of the overcrowding regulations.  In short if minimum room sizes apply in law to overcrowding then they must apply to under-crowding or under occupancy, ie the bedroom tax. (DN and Withheld)

Thirdly, the judge also ruled (see paragraph 23 of DN) that the HB Amendment Regulations 2012 (the bedroom tax) states that there is a link to room size in HBR through paragraph B(13)5.  Yet this crucial link which to all intents and purposes means that every bedroom tax decision needed to ask the tenant and landlord for room size BEFORE they imposed the bedroom tax is missing!  Yet no council HB decision-maker did do this.  A very curious omission by the DWP and a very significant one.

2.          Department for Work and Pensions will seek permission to appeal against the decisions given in these particular cases as space standards do not relate to the Removal of the Spare Room Subsidy, nor should a dining or living room be classified as a bedroom notwithstanding that the relevant Housing Act provisions would class them as such (see paragraph 3 below).

Note that the DWP is seeking permission and has not been granted permission to appeal and the DWP has chosen to intervene in these cases and it thinks there were 2 when in fact there were three so what happens if it doesn’t intervene in all three?

DWP is also playing games here when it discusses dining and living rooms.  It is trying to scare off further appeals by doing so as well.  It is conveniently forgetting that in a private tenancy the independent Rent Officer service goes in to check and inform local councils on the number of bedrooms. The DWP very conveniently forgets that it took this right away from local councils asking the Rent Officer service to do this for social housing properties which it did in April this year.  The Rent Officer service would not come back and say there are 2 living rooms and ergo one is a bedroom, or the same for a dining room.  In short, the DWP needs a biology lesson to determine its humerus from its rectum with this line of argument.

A summary of space standard rules

3.         Section 326 of the Housing Act 1985 and the equivalent Scottish provision, among other things, prescribe what local authorities (LAs) must consider when allocating social housing to tenants. This includes the minimum space standard used to determine overcrowding and which would be contravened if the number of persons sleeping in a dwelling is in excess of the permitted number (having regard to both the number and floor area of rooms available as sleeping accommodation). For this purpose a living room is classed as a room that is available to sleep in.

Note well the huge caveat and premise….must consider when ALLOCATING social housing to tenants.  Yet this is not at all about allocation and that is an entirely different matter; it is about what is a bedroom and not about allocation.

Further this is not the space standard either, it is room size and what minimum size in terms of floor space a bedroom has to be.  Moreover, and arguing against myself that this is about the space standard, this says in section 326 of the 1985 Housing Act that:

No account shall be taken for the purposes of either Table of a room having a floor area of less than 50 square feet

So if this is about the space standard then all rooms less than 50 square feet in floor size HAVE to be discounted and I must say DWP are a little tardy on putting that into guidance!

Also note too that if living rooms and dining rooms are to be considered as sleeping accommodation or potential bedrooms then all the original 660,000 decisions are wrong and they will all have to be decided again.  This will involve local councils checking every single property at a huge cost. 

Oh dear DWP hadn’t thought of that one had they!!

Take my home city of Liverpool which has 11,680 bedroom tax cases. Let’s say an inspection takes 3 hours to undertake to include travelling time each way, property inspection and then admin time on each case (not including additional storage and IT costs.)  We see Liverpool City Council having to pay for 35,040 staff hours, or 18.2 full time staff for a year or about £450k per year! Oh joy of joys what a wonderfully good use of the public purse that is!!!  The added cost here nationally would be about £36 – £45m just checking the original decisions were correct!

You start to see my point about Corporal Jones and Dad’s Army don’t you reader!

Removal of the Spare Room Subsidy

 4. This bulletin is to inform LAs that when applying the size criteria and determining whether or not a property is under-occupied, the only consideration should be the composition of the household and the number of bedrooms as designated by the landlord, but not by measuring rooms.

Here we have DWP being really disingenuous and quite a bit short in their understanding of the English language (How can the ONLY consideration, i.e. singular, be two things?)

The composition of the household has very little if any moot issues.  Yet the ‘number of bedrooms as designated by the landlord’ is hugely contentious and legally fraught. Firstly, this is akin to saying the landlords word decides on a welfare benefit. Surely councils would be acting in an ultra vires capacity if they derogated their public authority role to a social landlord?

Secondly, the judge in the Fife cases was very clear – the landlord’s view is NOT determinative which of course the DWP miss out in this ridiculous guidance.  This guidance is becoming an amalgam of a Brian Rix Whitehall farce, Dad’s Army and the Thick of It.

Thirdly, how is the landlord to know what is a bedroom or is not if the landlord doesn’t measure rooms? 

 5. In determining whether or not a room is a bedroom the landlord may consider a number of factors, but one of these must be whether or not a room is large enough to accommodate at least a single bed. Where this is not the case, the landlord should reassess whether or not that room should be classified as a bedroom and ensure that the rent correctly reflects the size of the property.

Ah yes read literally a single (adult) bed is 30 inches by 76 inches a whopping 15.2 square feet.  How remiss of the Thatcher government for omitting cupboards and sculleries and broom closets as ‘sleeping accommodation in the 1985 Housing Act.  Hang on a second, if I can fit a piece of plywood over the bath and throw a mattress on it then my bathroom is a bedroom!!!

Flippant reader?  No.  However to get very serious here the DWP is saying the landlord can reclassify but not the council.  And if the landlord reclassifies then the rent should fall!  Yet that is another myth as I have explained here yet the DWP and presumably Lord Freud is hanging on to this myth that a 3 bed which becomes a 2 bed and boxroom will see its rent level and HB level fall.  It will not and cannot.

6. Where rooms are designated as bedrooms landlords should classify it as such notwithstanding that the tenant may argue that it has been habitually used for something else (such as storage).

So the landlord is now the arbiter of the law I see the DWP really do think highly of social landlords! 

Making social landlords into judges??  There was me thinking this coalition only wants to create private sector jobs yet with about 1200 or so housing associations and about 130 or so council landlords who would all need a judge that’s a hell of a public sector cost isn’t it!

DWP clearly do NOT like a (proper) judge or the judiciary advising and acting on the law and the DWP would rather social landlords made it all up as they go along – then again that is DWP policy as this farcical piece of guidance clearly shows!

14 thoughts on “Humerus, rectum and DWP Bedroom Tax guidance in the U6/2013

  1. just a thought but if living rooms and dining rooms were classified as bedrooms, how many of the 1 million plus people they claim are overcrowded are actually not at all?

    1. As I have read it, and Joe confirmed way back in another of his articles, even counting the non bedrooms as “sleeping space” and excluding some rooms such as toilets/kitchens/etc; those households are over occupied in the eyes of the 1985 act…

      However if the dwp is now saying that all that is needed is for just enough room to accommodate a single bed, and therefore ignore the 50′ rule, a number of those households should no longer be classed as over crowded and the councils will need to check all of the properties to see if some have broom cupboards with a space big enough for a single bed, it will also have to table amendments to the HA/1985 to re-define the standards.

      It may also be that a number of the households currently “over occupied” are not as the dwp are saying that the new sex rules (same sex till 16) override the existing ha/1985 as they can be fitted into a room smaller than 70′ and indeed the guidence issued in the u6-2013 says they can be slotted into any room small enough to take a single bed.

      Wow look, according to the dwp there are no longer any people over crowded with the new space standards… hence the bt is no longer needed as the intended reason for the introduction of the bt was not to save money but to “use the housing stock correctly” which they have now done…

      To take it to its most ilogical conclusion… if a room or space of circa 15′ is good enough for 2 15 year olds, then surely a room of 69.9′ is large enough to [ware]house 4 15 year olds and more than enough space to have 3 adults in it… now that would be a HMO an a half… just think of how much a tory landlord could make if he could fit 2-30 people into a 3 bed house… kerching! and quadruples all around.

      1. Actually there is also another illogical conclusion, and that is that properties currently not deemed to have a spare bedroom(s) will also now increase massivly as every room is now deemed to be a bedroom if it can fit a single bed… so lets say just about every council/ha/almo house is now potentially deemed to have spare bedrooms… wow they could save billions if nearly every house now has to pay the bedroom tax as you can fit a single bed into that under the stairs cupboard; never mind 660,000 households… lets go for all of them!

  2. Interesting!! As usual Joe. Thank you.

    A blind man has just won his Legal case against Westminster Council, which ruled he should pay more for his second bedroom. But his Solicitors maintained he uses the bedroom for storing his Disability equipment…… The Council have said they will not appeal the decision..
    They state that, “Under National Regulations it is up to the Landlord to list the number of bedrooms in a property, not the Government or the Local Authority”.

    This is a HUGE win on room usage.
    As, there are MANY whose other bedroom is ABOVE the minimum size argument.. And so, cannot appeal on that critea.

    1. Debbie – the council backed out of the Westminster case and agreed to reduce the property size before this went to the tribunal

      NOTE WELL – It is NOT up to the landlord to say how many bedrooms a property has at all. The DWP want it to be but it is up to the COUNCIL to decide how many and not the landlord

  3. The Law is sometimes an Ass – but the concept of ‘reasonableness’ (apart from providing an easy living for generations of lawyers) is sound. Retrospectively designating a living room as a bedroom is not ‘reasonable’. We shall see what transpires when all this reaches the higher courts. I note that there is a Housing Bill curently in development Oop North. Would be relatively straightforward to clarify ‘sleeping accomodation’ via that. Margaret Burgess are you listening?

  4. I think the comment about living rooms in the bulletin was an attempt to be even-handed. To paraphrase, DWP is saying:

    “We do not think the 1985 Act room size standards have any application in HB, but at the same time nor are we claiming that the treatment of living rooms in the 1985 Act should be imported into HB. We are not suggesting that the bedroom tax applies where a family has a combined total of living rooms and bedrooms in excess of the number of bedrooms allowed by Reg B13 – that would be silly. Our view is that you leave the 1985 Act out of it, period”.

    My feeling is that the 1985 Act is useful as a rough guide to keep in mind when considering all the other factors, but it does not as a matter of law determine what is or is not a “bedroom” for HB purposes any more than the landlord’s designation does. Both the size of the room according to the1985 Act standards and the landlord’s description are items of evidence contributing to an overall view, along with other factors such as historic and current use, personal factors requiring a room to be used for a particular specialised purpose, shape, position in the building – it’s impossible to draw up an exhaustive list. Every case on its merits.

    I don’t agree that all the original 660,000 bedroom tax decisions are unlawful if they relied on the landlord’s description – Councils had to do it that way because of the sheer scale of the task. Remember the 660,000 are just the ones who are affected by the bedroom tax – every general needs social tenancy is assesed under the same Regulation so the bulk room counting process in April involved millions of tenancies, not just the 660,000 whose eligible rent was reduced. You cannot expect local authorities to carry out detailed investigation before making a first-instance decision in all of those cases. At this stage, there is some onus on tenants who dispute the number of bedrooms to make out a prima facie case that the decision is wrong, the onus will then pass back to the Council to check it out. Just saying “The decision is wrong because you never did a site visit” is a disruptive and negative tactic that ultimately won’t achieve anything for the majority of claimants and will in the meantime cause severe delay for the cases where there is a genuine issue.

  5. If I lived in a flat with 3 small bedrooms, all of with are under 70 sq ft and my household was made up of myself and my 2 sons 15 yrs and 7 yrs I could be in a position where I was overcrowded and under occupying at the same time?? This is the nonsense of the bedroom tax and I’m sure there will be families who are in this situation…. overcrowded yet under-crowded at the same time or over occupying and under occupying……

  6. Peter Barker, the 1985 housing act defines what is not a bedroom. Are you a council worker by any chance? Making excuses for councils who never checked their decisions are correct is appalling. Would you want your landlord to decide if your were entitled to DLA, JSA, ESA? No! So why should they decide how much housing benefit you get?

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