There IS a minimum bedroom room size in law – its the 2004 Housing Act

There ARE minimum room sizes in law for a bedroom and the HA2004 and statutory guidance on that blows the bedroom tax room size issue wide open. 

Frankly, who cares about whether the HA1985 Act on room size is applicable to just ‘overcrowding’ or not which is the current hot issue as that becomes a side show as the HA2004 deals not with ‘overcrowding’ but with ‘crowding and space’ and applies to under occupancy.

 “’Crowding and space’ is described in the HHSRS Operating Guidance as a hazard associated with lack of space within a dwelling for living, sleeping and normal family/household life.  The assessment is not just a measure of over-occupation by the existing household.”

If my interpretation of the HA2004 is correct and I have quietly been seeking opinion on it from many housing and environmental health professionals, lawyers and many others then:-

  • Any definition of ‘bedroom’ HAS to include a minimum room size component of at least 70.1 square feet
  • All the original and subsequent bedroom tax decisions are unlawful as they failed to consider the HA2004 Act and subsequent statutory guidance on room size
  • All bedroom tax decisions should be reviewed and/or appealed with immediate effect by the tenant
  • The DWPs most recent guidance to councils in the U7/2013 HB circular which says they can determine what a bedroom is in any way except measurement is and has to be unlawful as it cannot overrule HA2004
  • Every tenant with a purported bedroom of less than 70.1 square feet has a housing and health hazard in their property and has an absolute right to demand the local council come out and inspect the property for this and any other category 1 or category 2 hazard.

It cannot be right or acceptable in any way whatsoever that not only is the tenant subjected to a category 1 hazard under law but is being charged for that housing health and safety hazard with the bedroom tax! 

Further in order to pay this unlawfully deducted amount the tenant is placing herself in fuel poverty and in doing so is making or enhancing other category 1 hazards such as the thermal comfort criteria by being unable to afford to heat the property.   Or if you pay the bedroom tax you can’t afford to heat your property.

Moreover, the opportunity cost of this is that other aspects of the public purse such as the NHS are incurring much higher costs and much greater impacts of health and housing due to the pernicious bedroom tax policy which make it irrational and a net cost let alone unlawfully imposed and the unlawful recent guidance imposed by the DWP in the U7/2013 HB circular.

Time to look at the argument and below is what the HA2004 says: –

Housing Act 2004 Part 1

4 Inspections by local housing authorities to see whether category 1 or 2 hazards exist

(1) If a local housing authority consider—

  • as a result of any matters of which they have become aware in carrying out their duty under section 3, or
  • for any other reason,

that it would be appropriate for any residential premises in their district to be inspected with a view to determining whether any category 1 or 2 hazard exists on those premises, the authority must arrange for such an inspection to be carried out.

(2) If an official complaint about the condition of any residential premises in the district of a local housing authority is made to the proper officer of the authority, and the circumstances complained of indicate— 

  • that any category 1 or category 2 hazard may exist on those premises, or
  • that an area in the district should be dealt with as a clearance area,

the proper officer must inspect the premises or area.

3) In this section “an official complaint” means a complaint in writing made by—

  • a justice of the peace having jurisdiction in any part of the district, or
  • the parish or community council for a parish or community within the district.

(4) An inspection of any premises under subsection (1) or (2)—

  • is to be carried out in accordance with regulations made by the appropriate national authority; and
  • is to extend to so much of the premises as the local housing authority or proper officer (as the case may be) consider appropriate in the circumstances having regard to any applicable provisions of the regulations.

5) Regulations under subsection (4) may in particular make provision about—

  • the manner in which, and the extent to which, premises are to be inspected under subsection (1) or (2), and
  • the manner in which the assessment of hazards is to be carried out.

 (6) Where an inspection under subsection (2) has been carried out and the proper officer of a local housing authority is of the opinion—

  • that a category 1 or 2 hazard exists on any residential premises in the authority’s district, or
  • that an area in their district should be dealt with as a clearance area,

the officer must, without delay, make a report in writing to the authority which sets out his opinion together with the facts of the case.

(7) The authority must consider any report made to them under subsection (6) as soon as possible.

Note: The HA2004 applies to England & Wales and in Scotland it is the HA2006

in lay terms (hopefully)

Part 1 section 4(1) means that if a tenant informs the Environmental Health department of the council that a category 1 hazard exists – and a ‘bedroom’ of less than 70 square feet is a category 1 hazard – then the council MUST go out an inspect the tenants property.

Note well the usual excuses from councils are (a) we do not have to go out and inspect and there is nothing in law to say we have to is an error in law and the HA2004 clearly says this and (b) the other excuse that minimum room sized only applies to ‘overcrowding’ is another error in law and in fact.

The minimum change here is that the council HAS to come out and inspect and that is a huge cost which the HA2004 allows the council to recharge to the landlord.  Cue social landlords going ape!

Part 1 section 4(4) means that this mandatory inspection must follow national guidance and that guidance is the LACORS 2009 guidance which includes the Metric Handbook which says at Appendix 5c that a minimum single bedroom has to be at least 6.5m2 or 70.1 square feet.

Part 4 (6) and (7) says that the Environmental Health Officer must inform the council (as a corporate body which includes the HB department who decide on the bedroom tax) immediately of any category 1 hazard such as minimum bedroom size; AND that the council in its corporate position MUST consider that report.

In simple terms the HB officer who made the bedroom tax decision to accept the word of the landlord that a room of less than 70 square feet is a bedroom is wrong in law and must change that decision and disapply the bedroom tax deduction.

Tenant next steps

The tenant should compose a letter to their local councils Environmental Health department stating the room sizes of all alleged bedrooms and demand that the council send out an EHO to inspect their property.  Once they have done this they should also copy that letter into their HB department stating they wish for the bedroom tax decision to be reviewed and if not the tenant will make this a formal appeal matter.

Tenants should include ALL bedroom sizes too as the Metric Handbook in Appendix 5c of the LACORS guidance on HA2004 says that in some circumstances a bedroom needs to be a minimum of 11 square metres or 118 square feet. However, that complicates the simple point that ALL rooms to be deemed a ‘bedroom’ have to be a minimum of 70 square feet and in usable floor space too.

Tenants and tenant groups and anti-bedroom tax groups should also note well that every tenant needs to write a letter of complaint to the Environmental Health department.  This is not for any direct action or other purposes; it is due to the wording of the Act.  Part 1 (4) states that it is ONLY if the council becomes aware of the  hazard that they must inspect hence this is conditional on the tenants local council knowing of the individual tenant’s room sizes.  Further it means the onus is on the tenant to inform the local council’s Environmental Health department.

I would also advise tenants to look for other potential category 1 and 2 hazards under the HHSRS to include within the letter to their council.  An accessible overview of these hazards should be on your social landlords website such as here supplied by Venture Housing.  So many aspects of a property MAY be a hazard but a bedroom of less than 70 square feet IS a hazard and is in law and guidance.  It was also most recently expressed in a Property Services Tribunal in Southwark and details are here and all would do well to read this very cogently argued tribunal decision.

The more potential hazards a tenant lists the greater the likelihood of an early inspection by the local councils EHO and the quicker the original and errant in law bedroom tax decision is changed.  Yet this is one reason why a standard template letter cannot be drafted as there are far too many variables in each individual case.

In terms of the bedroom tax decision once the HB department of your council have a report from their EHO they must consider this and the tenant needs to state to the HB department that they are asking they review the original bedroom tax decision and if the council for whatever reason refuse then the council must accept the tenants letter as one of formal appeal.  The HA2004 Act issue of minimum room size of a bedroom has yet to be argued at an appeal tribunal and it needs to be as the evidence for it is powerful, and again I recommend the recent Southwark decision which accepts the 2009 LACORS guidance on it and states the HA2004 is a much need update of HA1985 which in turn updates a 1935 Act which in turn updated the 1875 Public Health Act.

Social landlords will be concerned at this and with good reason.  Not only are councils duty bound to inspect their properties and able to charge that inspection cost to landlords, but there will also be the cost of any improvement notices and other enforcement actions on landlords from these reports.  However it remains to be seen if councils attempt to charge social landlords and especially where councils have no housing of their own as they need good relationships with local social landlords for other housing duties and strategy.

Yet this means either landlord or council will have to bear even more costs and given that it could be 20% – 25% of all social properties that contain a purported bedroom of less than 70 square feet (it is 33% in Fife apparently) then some huge cost and financial risks emerge from this.

It would be far more practical and financially beneficial for tenant, landlord and council if local councils ruled en masse that a bedroom for bedroom tax purposes has to have a usable floor space of at least 70 square feet, and when this HA2004 room size issue reaches the Upper Tribunal it is highly likely to make that a legal precedent in any case.  Yet local councils are cravenly and upon reading this errantly and stupidly hiding behind the DWPs U7/2013 HB circular which says a bedroom is defined in any way you like except measurement which the HA2004 reveals to be unlawful and a legal fiction.

Part of the rationale behind this post is to open up discussion on the HA2004 implications for the bedroom tax which as the U7/2013 HB circular demonstrates clearly has not been considered by central government when it has to; the DWP like all local councils implementing the bedroom tax decisions is not above the law.

Housing professionals may well read this with a degree of incredulity given the huge awareness and discussion over minimum bedroom size in HA1985 in relation to the bedroom tax then why has the HA2004 not been raised to date?  Yet the law is there for all to see in the HA2004 and guidance to it and without any doubt the issue of room size only applying to overcrowding as many have argued the HA1985 to be is a side issue of little relevance compared to the points above which show the HA2004 applies to ALL residential properties.

The Chartered Institute of Housing (CIH), National Housing Federation (NHF) and all other housing lobbies and umbrella groups will doubtless have to now take a view on this.  I am surprised that the Local Government Association (LGA) has not published a view on the HA2004 relevance to the bedroom tax as the LACORS guidance on HA2004 was published by the LGA!  All local councils who administer the bedroom tax will also have to take a considered and urgent view on the issues raised here. 

The DWP will be apoplectic over these issues being raised as they do show they do not know what they are talking about; and the unlawful U7 HB circular they issued reveals the bedroom tax has very serious shortcomings and IS highly politically motivated and that its central aim is not one of making better use of stock or any nonsense such as removing the spare room subsidy which in any case never existed.

The LACORS 2009 guidance defines the critical difference between ‘overcrowding’ as in the HA1985 and ‘crowding and space’ in the HA2004.  It reads:

“’Crowding and space’ is described in the HHSRS Operating Guidance as a hazard associated with lack of space within a dwelling for living, sleeping and normal family/household life.  The assessment is not just a measure of over-occupation by the existing household.”

This means that when local council HB departments have stated that minimum room sizes only applies to overcrowding that they are errant in law and further that when they say the HA1985 does not apply they have missed the fact that HA2004 does apply.

Has the proverbial just hit the fan? Yes and that fan is pointing very fixedly at local and central government and the tenant has just increased that fan to warp speed and has plenty of shit to hand as that is what they have received since April and now able to return it all to central and local government!

NOTES and SOURCES and other

The HA2004 can be found here

The LACORS guidance here (read introduction)

The recent LB Southwark Property Tribunal decision is here

I have put this post out under my name and also under the name of Reclaim who are a grassroots group formed to oppose the bedroom tax and other welfare reforms and cuts.  Reclaim are forming as a Not for Profit company given demand which has seen them professionally advise well over 400 cases working just one evening per week since March .  Their initial sole focus on bedroom tax by necessity has extended to the benefit cap, local council tax benefits, JSA and ESA sanctions as well as appeals and DHP applications and other related bedroom tax issues.

I am delivering a series of bedroom tax / welfare reform seminars, training sessions and workshops on appeals, DHP and lodgers from the end of this month and initially across Wales, the North East and the North West and these include all appeals to date including some unpublished ones and some decisions councils have taken at review rather than go to appeal.

Profits from these will be donated to Reclaim and so unashamedly I am promoting my work here for a good cause and for the first time ever. Please email if you need further details on these UK wide events on joe@hsmonline.co.uk or thereclaimgroup@aol.co.uk  At some of these events Reclaim volunteers will be presenting on all aspects of their work including setting up a federation which many tenant groups are seeking to emulate, and some with the full backing of their social landlords which is a very welcome development that all should have taken a long time ago.

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9 thoughts on “There IS a minimum bedroom room size in law – its the 2004 Housing Act

  1. the health hazard is from the damp spores that live in bedrooms of 70 square feet and under
    people who sleep regular in this type of bedroom are normally ill more then most and if ederly are more prone to pneumonia

  2. I argued about this very point months ago on some of the bedroom tax groups on facebook… I also argued that section 332 of the housing act 1985 means that your Landlord has to inform you BEFORE hand of the room standards and not when overcrowding occurs….

  3. I think section 332 is important because it shows Landlords knew or should of known when renting properties that any room smaller than 50sq ft was not a bedroom and rooms between 50/70sq ft where just half a bedroom….And they had a duty to inform the tenant of this….

  4. hi Joe, thanks for this info, my appeal went to tribunal in birkenhead on 22/8/13, i could not attend as i was in hospital having a tumour removed from my pancreas. no one from WBC turned up at the appeal, the decision notice informed me that my housing benefit appeal was refused, the tribunal found that my home was a 3 bedroom property as confirmed by the landlord, my small boxroom measures 54sqft, i will certainly be getting in touch with Magenta housing and demanding that someone comes to my home & measure the boxroom. no one

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