More information on Bedroom Tax appeals can be found at Nearly Legal, where analysis of the appeals can also be found.
The Bedroom Tax is officially called the under-occupancy penalty, although those who support it are more likely to call it the spare room subsidy.
The policy is that those in social housing who receive Housing Benefit to cover the cost of their housing will lose 14% of their rent for having one room that is deemed a spare bedroom and 25% for having two or more spare bedrooms.
The cuts affect around 660 000 working-age people, which is just under one third of all working-age social sector tenants. The majority of these people have one spare bedroom. Two thirds of these people are disabled. The cuts do not affect pensioners.
Data available on under-occupancy does not seem to be broken down by age band within housing tenure type. However if under-occupancy in the social sector follows the average pattern then one third of under-occupancy is by pensioners. We can also see that:
- Most under-occupancy is by people who own their homes – 85% of home-owners under-occupy and home-owners make up 78.5% of under-occupied housing.
- Under-occupancy in the private sector is greater than under-occupancy in the social sector, although both are substantially lower than home-ownership.
- Under-occupancy is greater amongst older people, with 50% of under-occupiers being over 55 and over 84% of pensioners under-occupying their homes.
- The number of spare bedrooms increases with age: 65% of those aged 16-44 who under-occupy do so by one bedroom; at 45-54 it is 50%; and at 55+ it is 38% (i.e. the majority of people aged over 55 who under-occupy have two or more spared bedrooms).
- People without children are more likely to under-occupy their homes, at 73% for single people without children and 89% for couples without children.[i]
The picture that builds up from this is one of older adults and couples who have not downsized after their children have left home.
The reasoning given by the DWP is that people in social housing should not get to have more rooms than people in private housing. They say that, “The reform means working-age tenants in the social sector will receive Housing Benefit for the number of bedrooms their household needs, bringing the rules in line with the private sector.” They also say that the change is about saving £480 million a year and about freeing up larger houses for larger families.
There are several problems with this:
- The private sector rules also include pensioners. By excluding pensioners from the under-occupancy penalty, the DWP has failed to bring social housing in line with private, and has failed to ‘free up’ the houses under-occupied by pensioners.
- Where private sector tenants may find a new property based on being the first to agree a tenancy with the landlord, a social sector tenant is dependent upon being high enough up on the priority list. The tenant may therefore be unable to downsize because to do so would mean not just losing their home but also losing their social tenancy.
- There aren’t enough small social houses.
- Of the 1.85 million waiting for social housing, 965 000 need one-bed and over 500 000 need two-bed homes.[ii]
- With fewer than 7% being over-crowded, if the entire 40% who over-occupy left their homes there would not be enough large families to move into the now vacant stock.[iii]
- Whilst extending the under-occupancy penalty would address the issue of equity across sectors and age groups, it would exacerbate the problem caused by the severe lack of one-bedroom properties.
- The saving of £480 million is dependent on 85% of those affected by the under-occupancy penalty being able to pay the shortfall themselves.
- It is unclear where the government thinks the tenants will find the money to pay for this shortfall, given that most benefits are means-tested.
- Expecting 85% of tenants to stay put is incompatible with the policy aim of freeing up under-occupied properties for larger families.
- The cost of arrears, court cases and evictions will reduce the ability of councils and Housing Associations to build new, smaller properties.
- Moving into private sector accommodation will increase costs for the government, as a one-bedroom private rent is more expensive than a two-bedroom social rent.
- Comments from the DWP on appeal cases have often said that “It’s simply not affordable to pay housing benefit for people to have spare rooms.” But it is cheaper to pay the rent for someone under-occupying a social property than to pay the Local Housing Allowance in the private sector.
- The policy does not address the fundamental problem of a lack of housing in general and a lack of small social houses in particular.
A number of appeals have been heard against the under-occupancy penalty. These include:
Annie Harrower-Gray, Fife Council: the Tribunal ruled that her property was one-bed, not three-bed. It was considered that she lived in an unusual property which the council should have visited before deciding how many bedrooms it had.
David Nelson, Fife Council: the Tribunal ruled that a room under 50 square feet is too small to be a bedroom, and one between 50 and 70 square feet is suitable only for children under 10. Mr Nelson’s room measured 66 square feet.
A disabled woman, Redcar&Cleveland Borough Council: the Tribunal ruled that the couple were unable to share a bedroom and therefore qualified for two bedrooms, bringing their under-occupancy penalty down to 14% from 25%.
A family with a disabled child, Sheffield Council: the Tribunal ruled that the disabled daughter did need her own bedroom.
Other appeals can be found at nearlylegal.co.uk
The DWP is appealing the decisions that the size of a room should be taken into account when determining the number of bedrooms in a property. This is despite the DWP having repeatedly said that the DWP is not going to define what is and is not a bedroom, and that this is a matter for the tenant and landlord to decide.
There are on-going judicial reviews against the bedroom tax.
Paul and Susan Rutherford with Child Poverty Action Group are bringing a judicial review on the grounds that the under-occupancy penalty unlawfully discriminates against disabled children who need overnight care. The regulations currently allow for an extra room for an overnight carer for an adult, but not for a child. It is argued that this is discriminatory in not allowing children to have an overnight carer. The proceedings were issued in the High Court on 24th September 2013.
Disabled adults Jacqueline Carmichael and Richard Rourke brought a Judicial Review on the grounds that the under-occupancy penalty does not take into account the different needs of disabled people compared to non-disabled people. The JR was heard in July 2013 and the judge rules that the under-occupancy penalty is discriminatory but the provision of Discretionary Housing Payments means that the penalty is a proportionate means. The judge declined to comment on whether the penalty is a legitimate aim (the standard phrase is that discrimination is legal if it is a proportionate means to a legitimate aim). The adults and the disabled children in the below case have been granted permission to appeal this decision.
A judicial review was issued on the behalf of six disabled children on the grounds that the under-occupancy penalty does not take account of their need to have a separate bedroom from their sibling(s). Four other children are considered to need their own room as a consequence of serious domestic violence and abuse. Their solicitor, Rebekah Carrier, expressed concern over the government’s recommendation that families take in a lodger: “This is a ludicrous suggestion. None of these families have a spare room available because the rooms are already being used. It is also very surprising that the government is advising families with disabled children, and children suffering trauma following serious abuse, to invite a stranger into their home.”
Discretionary Housing Payments can be used to cover the shortfall in rent caused by this regulation.
DHPs are not new. There is no time limit on how long an award can be given for. However, in general it is used as a temporary measure to give someone the time to find cheaper accommodation or make other changes to meet the rent. This is partly because the demand is substantially higher then supply, so if one person has DHPs on an indefinite basis then multiple other people can’t receive DHPs at all.
Before the social security changes were brought in, there was a national fund of around £21 million a year for councils to use at their own discretion to provide to people in the following circumstances:
- People in temporary accommodation;
- People fleeing domestic violence;
- People who have caring responsibilities for members of their family;
- People who cannot move immediately for reasons of health, education or child protection;
- People who are moving to more appropriate accommodation;
- People who are having difficulty finding more appropriate accommodation;
- Disabled people living in significantly adapted accommodation;
- Approved or prospective adoptive parents or foster carers.
In 2011-12 the expenditure on DHPs was £22 million, similar to that for the previous 7 years. In February 2011 Lord Freud announced an extra £30 million for the DHP fund, having already given an extra £10 million.[iv] Consequently for 2011-12 the DHP expenditure increased to £61 million. This was introduced to help with the rent shortfalls incurred due to housing benefit for private tenants being reduced to the 30th percentile (previously 50th percentile) of local market rent, and the change from increasing benefit in line with local rent to increasing it at 1% each year (i.e. less than the increase in local market rent).
In July 2013 a further £35 million was announced to help people affected by the under-occupancy penalty.[v] £75 million was given to help people affected by the overall benefit cap. This meant that in April 2013 the DHP fund for the next year was £155 million – almost eight times the size of the fund before the social security changes were brought in.
Going Spare, Inside Housing, 25th March 2013
The flawed Bedroom Tax justification narrative, 2nd April 2013
[i] Data taken from the English Housing Survey 2011-12
[iii] Data taken from the English Housing Survey 2011-12