The Housing Benefit Size Criteria Rules have been in place since April 2013, and are commonly referred to as the ‘bedroom tax‘, or the 'spare room subsidy' as named by the government.
The 'bedroom tax' means that working age people who live in social housing, and who get help towards their rent through Housing Benefit, can have the amount they receive restricted if they are considered to have too many bedrooms.
Working age people are those who are under the state pension credit age. If you are in a couple and one of you is state pension credit age then you won’t be affected by the ‘bedroom tax’. You can find out your state pension credit age here.
Social housing includes properties rented from a council or housing association. However you will not be affected by the ‘bedroom tax’ if your home is temporary accommodation (made available by a local council for homeless households).
Note: If you live in a privately rented property and get help towards your rent through Housing Benefit you will come under similar rules; and if you live in social housing or a privately rented property and get help with your rent through Universal Credit you will come under similar rules – for further information contact the Carers UK Adviceline.
Note: From 1st April 2017 the rules have changed to allow an additional bedroom for disabled children or non-dependent adults who require overnight care and for couples who are unable to share a bedroom for health reasons – see below section called 'From 1st April 2017: When do the size criteria rules allow for an additional bedroom?'
What are the size criteria rules?
How many bedrooms are allowed?
The size criteria rules limit the number of bedrooms that you can have in your home and still get all of your eligible rent paid. If you have more rooms than are allowed by the size criteria rules you are considered to be under-occupying.
The rules will restrict Housing Benefit to allow for one bedroom for:
- a couple - however from 1st April 2017 if a couple is unable to share a bedroom due to health reasons then both members of the couple should be allowed their own bedroom - see below section called 'From 1st April 2017: When do the size criteria rules allow for an additional bedroom?'
- a person over 16
- two children of the same sex under 16
- two children who are under 10
- any other child (other than a foster child or child whose main home is elsewhere)
- a disabled child who is in receipt of the middle or higher rate care component of Disability Living Allowance (DLA), where the local authority decision maker is satisfied that the child cannot reasonably share a bedroom
- a non-resident carer (or group of carers) providing overnight care to the tenant or their partner where this is considered to be required’ - from 1st April 2017 this also extends to a non-resident carer (or group of carers) providing overnight care to a child or non-dependent adult where this is considered to be required – see below section called 'From 1st April 2017: When do the size criteria rules allow for an additional bedroom?'
- an adult child who is in the Armed Forces, including the Reserve Forces, but who continues to live with parents (note: they are treated as continuing to live at home, even when deployed on operations)
- approved foster carers (and formal kinship carers in Scotland) so long as they have fostered a child, or become an approved foster carer in the last 12 months
Note: In the legislation the Government has not defined what counts as a bedroom in terms of size, or whether rooms such as dining rooms could be counted as bedrooms. The Government has said it will be up to the landlord to say how many bedrooms the property has and this is normally stated on a tenancy agreement. However there is no harm in setting out other factors that you feel should be taken into account when determining what should or should not be classed as a bedroom. For example consider the layout and overall dimensions of the room; access; natural and electric lighting; ventilation and privacy.
How much will Housing Benefit be restricted by?
Where households are seen to be under-occupying because they have ‘spare’ bedrooms according to the size criteria rules, they will see a reduction in their Housing Benefit. Their 'eligible rent' (the figure used to calculate Housing Benefit) will be reduced by:
- 14% for one extra bedroom
- 25% for two or more extra bedrooms
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Examples of under-occupancy:
- a father with two daughters under 16 living in a three bedroom house would be under-occupying by one bedroom, because the rules would say the daughters should share, and so he would have a reduction in his 'eligible rent' (the figure used to calculate Housing Benefit) of 14%
- a family with one disabled child and three bedrooms, one of which is used for storing the equipment the disabled child uses, would be under-occupying by one bedroom, and so would have a reduction in their 'eligible rent' (the figure used to calculate Housing Benefit) of 14%
From 1st April 2017: When do the size criteria rules allow for an additional bedroom?
From 1st April 2017 new rules mean an additional bedroom will be allowed if:
- a child or non-dependent adult requires overnight care from a non-resident carer(s)
- two members of a couple cannot share a bedroom for “transparent medical reasons”
Both of these bullet points are explained in more detail below.
The new rules came into force on 1st April 2017, and are as a result of a Supreme Court case which was decided in November 2016: the case relating to overnight care was called R (on the application of Rutherford and another) (Respondents) v Secretary of State for Work and Pensions (Appellant); and the case relating to couples who are unable to share a bedroom was called R (on the application of Carmichael and Rourke) (formerly known as MA and others) (Appellants) v Secretary of State for Work and Pensions (Respondent).
The new rules are outlined in the Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2017.
If you are in one of the above situations and already have an appeal in about this issue, then your appeal should hopefully be decided now that the regulations have been published, and if the relevant conditions have been met (see below) you should be allowed an additional bedroom either from the date you lodged your appeal, or from 1st April 2017.
If you are in one of the above situations and do not already have an appeal in about this issue, you should write to your local council asking them to amend your Housing Benefit decision as of 1st April 2017 (quoting the regulations mentioned above) to allow an additional bedroom for this reason. You should do this as soon as you can to try and get the issue resolved.
What counts as requiring overnight care from a non-resident carer(s)?
The rules for children and non-dependent adults who require overnight care match the current rules for Housing Benefit claimants or their partners who require overnight care.
Note: If there is more than one person in the household who requires overnight care there will still only be one additional bedroom allowed.
To count as requiring overnight care the person needs to be regularly receiving overnight care from a carer(s) who doesn’t live with them, and the carer(s) need to be provided with the use of an additional bedroom (additional to those used by other people who live with the person).
Also, the person (or the Housing Benefit claimant if the person is a child) must satisfy the local council that they reasonably require this care and meets(s) one of the following conditions:
- they are getting Attendance Allowance, the middle or the higher rate of the care component of Disability Living Allowance (DLA), either rate of the daily living component of Personal Independence Payment (PIP) or Armed Forces Independent Payment (AFIP) or
- they have provided the local council with sufficient certificates, documents, information or evidence to satisfy it that overnight care is required
Note: You can count as a person who requires overnight care even if you are not actually living in your home, provided you can be treated as occupying it – for example while you are temporarily absent from home.
The law states that the person needs to require ‘regular’ overnight care. ‘Regular’ has not been defined in terms of a specific amount of care, but it has been said to mean the same as ‘commonly’, ‘habitually’ or ‘customarily’.
The test for whether someone requires ‘regular’ overnight care is if the need for the care arises often and steadily enough to require that a bedroom be kept for this purpose. Therefore, someone who needs overnight care every night all of the time would obviously pass the test, but the law is also clear that the test can be passed in situations where care is only provided on a minority of nights, so long as an extra bedroom is needed for this purpose (for example, this might apply where someone with a health problem only needs care on bad nights).
The law is not clear about whether a ‘non-resident carer’ means a paid care worker or a carer, and therefore it is reasonable to argue that the term should apply to both. Also, the law does not specify whether it has to be the same carer or carers that provide the care. So, if different members of a family take turns to stay over with an older relative, or if care is sometimes provided by a combination of family, friends or paid care workers, this should not cause a problem.
What counts as being unable to share a bedroom for “transparent medical reasons”
For a couple to count as being unable to share a bedroom due to health reasons, the following conditions must be met:
- the member of the couple who has the health conditions must be getting the higher rate of Attendance Allowance, the middle or the higher rate of the care component of DLA, either rate of the daily living component of PIP or Armed Forces Independence Payment and
- the local council must be satisfied that the member of the couple who has the health conditions is, because of their disability, not reasonably able to share a bedroom with the other member of the couple
What can I do if the 'bedroom tax' applies to me?
The Government has provided a list of suggestions for people who have the ‘bedroom tax’ applied to them. Their suggestions include:
- moving to a property with fewer bedrooms
- paying the shortfall in Housing Benefit by taking in a lodger
- taking up work or increasing your working hours
Clearly these suggestions may not be reasonable options for many if not most carers. If you do decide that any of these suggestions might work for you then consider the following:
- your housing association or local council may help you to move to smaller accommodation by helping you arrange a mutual swap or by paying for moving costs and expenses
- whether you can rent out a spare room to a lodger will depend on your tenancy agreement so speak to your housing association or council housing office first - you should also check how any rent you charge might affect your benefits as the rent will be counted as income but some of this can be disregarded
- if you can take up work or increase your hours (which will not be possible for many carers), make sure you get a benefit check to make sure you are claiming all the in-work benefits you are entitled to
Discretionary Housing Payments
What are Discretionary Housing Payments?
If you are not able to pay the extra rent or move to a smaller property – for example, because you have a specially adapted house or you depend on local informal support – you can apply for Discretionary Housing Payments from your local council.
Discretionary Housing Payments are funded by a limited sum of money and most councils will not award Discretionary Housing Payment on an ongoing basis. Therefore, these payments may only be a temporary help while you look to find another solution to the problem.
However the local council must not have blanket policy about how and who it will award to and for how long. It should treat each case on case by case basis, but must act consistently. Government guidance has stated that Discretionary Housing Payments should be specifically aimed at some groups of people including:
- ”disabled people living in significantly adapted accommodation, including any adaptations made for disabled children...” - the guidance goes on to say that “it will sometimes be more cost-effective for them to remain in their current accommodation rather than moving them into smaller accommodation which needs to be adapted.”
- “where there has been no significant adaptation to a property, but a member of the household has a long term medical condition that creates difficulties in sharing a bedroom”
- “where an additional bedroom is needed for a non-resident carer who is providing overnight care to a disabled child or non-dependant”
Note: The last two bullet points above were to address the pending regulations which came into force on 1st April 2017. People in these situations who meet the relevant conditions should now be able to get an additional room for these purposes - see above section called 'From 1st April 2017: When do the size criteria rules allow for an additional bedroom?'.
The Guidance also gives some examples of groups of people that might benefit from staying in their home, and therefore receive a Discretionary Housing Payment to enable them to do so, including:
- "people with health or medical problems who need access to local medical services or support that might not be available elsewhere;
- disabled people who receive informal care and support in their current neighbourhood from family and friends which would not be available in a new area...
- the elderly or frail who have lived in the area for a long time and would find it difficult to establish support networks in a new area"
If the ‘bedroom tax’ applies to you, or the person you are looking after, you should apply to your local council for a Discretionary Housing Payment.
You should also apply for a Discretionary Housing Payment if you are appealing a decision about needing an extra bedroom, as an appeal can take some time and this will help you not to fall into rent arrears.
Note: In Scotland, the Scottish Government are providing additional funding to help people affected by the ‘bedroom tax’, including more money for Discretionary Housing Payments. It has been wrongly reported as the “bedroom tax being scrapped in Scotland”, but what in fact is happening is that anyone affected can apply for assistance to offset the 'bedroom tax'. So if you are a tenant in social housing and are affected by the 'bedroom tax' you must apply for this help. You must engage with your landlord and apply for a Discretionary Housing Payment as soon as possible to enable you to pay the shortfall in your rent. And you should do so even if you have been refused a Discretionary Housing Payment in the past.
Completing the Discretionary Housing Payment form
The Discretionary Housing Payment form will ask for reasons why you are unable to secure smaller accommodation and will also ask for a breakdown of your finances in order to see if you can reasonably afford to pay the shortfall.
Give as much information as you can around why it is hard for you to move to a smaller property and what you have done to try and find this accommodation. It might be that there are important services nearby that you or the person you care for need to be able to access.
Focus on why you are struggling to pay the rent shortfall, for example if the amount needed to make up your rent shortfall causes you and your family financial hardship. Explain if you have debts to pay and how you are trying to manage that. Explain if you have looked at other ways to meet the shortfall, for example by cutting non-essential spending and/or making sure everyone in the household contributes if they can.
Evidence of illness or disability can be provided to help evidence the problems you may have in moving.
We understand that some local councils are taking disability benefits such as Disability Living Allowance (DLA) and Personal Independent Payment (PIP) into account when assessing the ability to pay the shortfall in the rent that the Housing Benefit does not cover.
However local councils need to take into account the purpose of that income and to assess this in a fair way when making their decision. Therefore it would be useful for you to set out any extra costs that are incurred because of the disability of the person in the household.
For example the disability benefit may help pay for: extra heating or water costs; laundry and specialist washing powders; special dietary requirements or clothing and footwear; extra bedding, for example, because of incontinence; garden maintenance; private cleaning, or domestic help, if needed because of disability and not provided by social services; privately arranged care services, including respite care; or the purchase, maintenance and repair of disability related equipment.back to top
Challenging the decision
If you are affected by the ‘bedroom tax’ you will have received a letter from your council telling you about the decision. You have one month from the date of the letter to challenge the decision.
If you disagree with the decision, you should write a letter to your local council containing your full name, address, National Insurance number, reference number (this should be at the top of your decision letter) and the date of their decision. In your letter you should try to explain clearly why you think the decision is wrong and include any relevant evidence.
If you’re able to, you should hand the letter in to the council’s offices and get a receipt that includes the date on which you handed over the letter. However, if you decide to post the letter, make sure you get a certificate of posting, use recorded delivery or keep a note of the date of posting, along with a photocopy of all papers you submit.back to top