Right, this is going to be quite a ‘dry’ post. Not much room for humorous observations here, so I’m not going to even attempt it.

The ‘Bedroom Tax’ (officially the Social Sector Size Criteria rules) is the nickname given to an amendment of the Housing Benefit regulations which took effect from 1 April 2013. (It’s not a tax.) The new legislation reduced the weekly eligible rent charge when calculating Housing Benefit for tenants in Social Sector housing who were deemed to be under-occupying their houses.

What the hell did that mean?

It meant that Housing Benefit was cut for people who were deemed to have ‘spare’ bedrooms under the new rules.

For example, if a single person was in a two bedroom property, his weekly eligible rent (a figure used when calculating Housing Benefit) was reduced by 14%. If he lived in a three bedroom property, that figure rose to 25%.

The government does run a scheme called Discretionary Housing Payment (DHP). The scheme pre-dates the ‘bedroom tax’. It offers people with financial difficulties a short-term award to help towards the shortfall between the Housing Benefit award and the rent due. The problem, people said, with DHP is that it isn’t guaranteed. It is, as the name suggests, discretionary. There is also a finite amount of DHP per year. Once it was gone, it was gone. There was therefore not enough in the DHP budget to make up for the reductions that the new rules imposed. Also, in Scotland, the devolved Parliament made a decision to award DHP to everyone affected by the reduction. They did this by boosting the DHP budget with money from other sources.

There were exceptions to the Social Sector Size Criteria rule. People who required overnight care were allowed an additional bedroom for the carer. Tenants who had suffered a bereavement were protected from a subsequent reduction for 52 weeks. People in homeless accommodation were exempt. Children unable to share a room due to disability were allowed separate rooms, but only after a court case forced the Department of Work and Pensions to change the rules.

There were, however, certain groups of people who were not exempt and who argued that they should have been.

These groups (broadly) were:

  • couples where a disability prevented them from sharing a bedroom.
  • a parent who had a room for a child, but who’s child usually resided elsewhere.
  • people who were using the additional bedroom for storage, or who had changed the use of the room.
  • people who had children who required overnight care from a carer.
  • Since the rules were introduced, a number of legal challenges took place through various channels.

Individuals who wanted to appeal against their own Housing Benefit decisions had their cases heard at the First Tier Tribunal, part of HM Courts and Tribunal Service. There was a further right of appeal (if the Judge had erred in law) to the Upper Tier Tribunal. The advantage of an Upper Tier Tribunal decision was that it was considered case law. This meant that it had set some sort of legal precedent which should be followed by subsequent decision makers and Judges.

The second avenue used by some parties to contest the rules was through the courts in a process called Judicial Review. (It was this process that had led to disabled children who were unable to share a room being allowed an extra bedroom in a case brought by Burnip, Trengove and Gorry). This process relied heavily on an argument that the rules breached people’s Human Rights.

From the groups detailed above, here are the major rulings.

Couples Unable to Share A Bedroom / Disability Discrimination

In a case known as MA & Others, it was submitted that the regulations discriminated against people with a disability. The High Court found that it did discriminate, but that the existence of the DHP scheme meant that there was a remedy to that discrimination.

This ruling has been subsequently appealed and is due to be heard at the Supreme Court on 29 Feb – 2 March 2016.

Non Resident Children

An Upper Tier Tribunal Judge made a decision that the rules did not discriminate against parents with non-resident children. This became case law for all similar cases.

Changing the Use of a Room

A panel of Upper Tier Tribunal Judges noted in the Fife Nelson cases that merely changing the use of the room was not sufficient to avoid a reduction in Housing Benefit.

They did, however, make a judgement in favour of the appellants on the basis that the room in question was not suitable to be classed as a bedroom based on its size, dimensions and other factors.

courtofappealChildren Requiring Overnight Carers

Yesterday’s ruling from the Court of Appeal related to two different groups who had challenged the amended regulations. A decision was made that the rules preventing an additional room for a carer of children was discriminatory. The government have already said that they are going to appeal this decision. This means that nobody will currently be getting paid extra under this ruling.

The second decision made yesterday was in relation to a panic room that had been classed as a spare bedroom. The Court of Appeal decided that this, too, was an unlawful decision.

What’s Next?

The next big thing to watch out for is the Supreme Court decision on MA & Others. It’s possible this will also address the Government’s appeal against today’s Court of Appeal judgement – we’ll find out soon if this is the case.

If you are subject to a reduction in your Housing Benefit award, please see your local council about a Discretionary Housing Payment if you haven’t done so already.