The ‘bedroom tax’: what is a bedroom?

Housing iStock 000010695703Small 146x219Tribunals have been busy resolving a number of cases around whether a room is a 'bedroom' for the purpose of the so-called 'bedroom tax'. Amy Gibbs reports on the outcomes.

The spare room subsidy or, as it is more commonly known, the ‘bedroom tax’ has been in place for more than a year. It is not a tax in fact; it is a reduction in housing benefit for tenants living in social housing and of working age who have a ‘spare bedroom’. However, a spare bedroom has not been defined by the legislation.

The reduction in housing benefit is 14% for one spare bedroom and 25% for two spare bedrooms. Tenants must either make up the shortfall between the housing benefit and their rent or downsize to a smaller property.

Whether a room is a spare room depends on who makes up the household. Regulation B13 of Housing Benefit Regulations 2006 (SI 2006/213), as amended, prescribes who must share.

Couples are expected to share a bedroom and, generally, children are expected to share, two to a bedroom. Children of the opposite sex and aged 10 and over do not have to share, nor do children who have a disability who are unable to share a bedroom with a sibling. The bedroom tax does not apply to tenants with disabilities who require their spare bedroom for an overnight carer, or tenants who use their spare bedrooms to accommodate foster children. Tenants whose children are students or serving in the armed forces are also entitled to keep their spare bedroom for their return. 

The difficulty is that the government has not specified what “a bedroom” is in the regulations. There is no distinction between a ‘single’ and a ‘double’ bedroom – a distinction that will be fundamental where children, particularly older children, are meant to share. We do have the overcrowding legislation to refer to and, of course, reference should be made to what the tenancy agreement says in respect of the number of bedrooms and the rent level charged. However, the position is far from clear.

Those families who have found that their household circumstances fall outside of these prescribed setups, but who need the bedroom that is deemed to be a ‘spare bedroom’, have sought to challenge the definition of a ‘bedroom’. These challenges have been made by way of appeal to the Social Security First Tier Tribunal (FTT). The FTT has been asked in a number of cases to decide whether the room in question is a bedroom, and if so, whether the tenant in question is entitled to their ‘spare’ bedroom without penalisation.

The current use of a room has been definitive in several challenges. In one such challenge in Rochdale, the tenant’s home had been let to them as a two-bedroom property. However, the tenant, who lived alone, argued that in fact the property was not a two-bedroom property because one ‘bedroom’ had always been used as a dining room. The kitchen and living area were in one room with no space for a dining room table. The Secretary of State for Work and Pensions argued that the tenant had signed a tenancy agreement referring to the property as having two bedrooms and that the rent had been set at the two-bedroom rate. The judge, having examined “the evidence as a whole”, was persuaded that as the room had always been used as a dining room by the tenant, it was not a bedroom. The tenant would therefore not be subject to the 14% reduction in their housing benefit.

In a similar appeal to Liverpool’s FTT, the tribunal judge was asked to decide whether a room used as a playroom by the tenant’s grandchildren when they came to visit was a bedroom. The judge decided that the room, given its use as a playroom, was not a bedroom and therefore it was not subject to the bedroom tax. This was despite the fact that the landlord had let the property as two-bedroom property and the tenant’s son had previously used the room as a bedroom before leaving home. 

In other challenges, parents separated from their partners who regularly have their children to stay with them have had mixed outcomes. The FTT in Inverness dealt with an appeal by a father who argued that he should not be subject to the bedroom tax as his spare bedroom was used by his three children who came to stay with him at weekends under contact arrangements. 

The regulations specifically state that parents will only be allowed a bedroom for their children if their home is the children’s main home. The FTT decided, in line with the regulations, that the bedroom was a spare bedroom and therefore subject to the bedroom tax.

This prescriptive aspect of the regulations has been successfully challenged in the FTT in Liverpool by a father who uses his ‘spare’ bedroom to accommodate his 15-year-old daughter when she comes to stay with him under informal contact arrangements. The father argued that the regulations must be read subject to his right to a family life contained in the European Convention of Human Rights and the Human Rights Act 1998. The judge agreed, finding that the regulations must be read subject to this human rights legislation, and to that effect, decided that the tenant was allowed a spare bedroom to accommodate his daughter. What perhaps assisted the judge in making this decision was that there were no residence or contact orders in place as arrangements had been amicable. Therefore, neither of the parents’ homes were formally the ‘main home’ of the child. This decision may be appealed by the Secretary of State.

There have been many cases decided upon by the FTT across the country with varying outcomes. None of these decisions are binding though, so none can set ‘precedents’ for other cases. It seems manifestly unfair that a grandmother who uses her spare room as a playroom for grandchildren is not subject to the bedroom tax whereas a father who uses his spare room for his three children to stay overnight is. Perhaps the regulations should be amended so that parents who use their spare rooms to accommodate children under contact arrangements, whether formal or informal, should not be penalised. At the very least, the regulations should provide some clarification as to what is a ‘bedroom’.

Amy Gibbs is an Associate at Clarke Willmott. She can be contacted on 0845 209 1344 orThis email address is being protected from spambots. You need JavaScript enabled to view it..