A new Tribunal decision (Nuneaton and Bedworth BC v RH and Secretary of State for Work and Pensions ) was published in December 2017 that found that in applying the spare bedroom subsidy (“bedroom tax”) a local authority must assess whether a bedroom can actually physically fit in the number of expected children to sleep in it as a bedroom. The decision is expected to be appealed.

The above question has long been at the forefront of numerous challenges in the Upper Tier Tribunal. It has come to the fore following the introduction of the bedroom tax that affects the amount of housing benefit social sector benefit claimants receive to assist them with their rent payments.

If there is one spare bedroom in the property, the housing benefit reduces by 14%.  If there are two or more spare bedrooms, then the housing benefit reduces by 25%.

When calculating the claimants benefit, a local authority will determine how many bedrooms to allocate to the claimant based on members of the household.

Housing Benefit Regulations 2006

Regulation B13 paragraph 5 of the Housing Benefit Regulations 2006 outlines the categories of persons that are entitled to a bedroom:

(5) The claimant is entitled to one bedroom for each of the following categories of person whom the relevant authority is satisfied occupies the claimant's dwelling as their home (and each person shall come within the first category only which is applicable) -

(za) a member of a couple who cannot share a bedroom;

(zb) a member of a couple who can share a bedroom;

(a) a couple;

(b) a person who is not a child;

(ba) a child who cannot share a bedroom;

(c) two children of the same sex;

(d) two children who are less than 10 years old;

(e) a child.

Nuneaton and Bedworth Borough Council v RH and the Secretary of State for Work and Pensions CH/1987/2016 [2017] UKUT 471 AAC

The case before the Upper Tier Tribunal revolved around a family that included a married couple and their two children (two boys under 10 at the time of the appeal) living in a three bedroom property.  The couple occupied one room and the children each had their own room.

The family made a claim for housing benefit, and the local authority decided that albeit the property is a three bedroom property, based on the categories of person test in Regulation B13, they should only pay housing benefit for two bedrooms and apply the 14% deduction.

The local authority argued: the couple are entitled to one room as per paragraph 5 (a) and as the two children are the same sex and are less than 10 years old then they could fall under the category of paragraph 5 (c) or (d) meaning that for the purposes of the housing benefit calculation they would share a bedroom and this would then result in one (theoretical) spare bedroom.  On the face of it, the local authority was applying the correct legislative test.

The claimants challenged the local authority decision on the basis that neither of the two rooms used by the children could accommodate adequate sharing of a bedroom.  The introduction of a bunk bed would obscure the natural light in one of the rooms and in the second room it would put the child on the top bunk too close to the light fittings.  The local authority did not dispute this.

This decision states that when determining the number of bedrooms, consideration must be given to the suitability of the allocated bedrooms for use by the category of persons referenced by the local authority.  On the interpretation of Regulation 13B, the Upper Tribunal panel decided that a claimant is entitled not just to a room that could be used as a bedroom, but to a room for a person with the characteristics of the specific subsection in paragraph (5).

Impact

It has been indicated that this decision will be appealed, however, if the decision remains then the impact on local authorities is that when calculating the amount of benefit for a claimant if there is no spare room then the local authority should also consider if the bedroom is actually suitable for the intended category that the local authority is allocating a bedroom to.

As in this case, a bedroom may have theoretically been allocated to the category for ‘two children of the same sex’ however when actually considering if the bedroom is suitable for that category, it became apparent that neither bedroom could accommodate the two children so that category could not be applied.  As no such room could accommodate both children, the next category applicable had to be for an individual child, applied twice, one for each boy under paragraph 5 (e), which meant that there was no surplus bedroom.

This decision may require already stretched local authorities to spend more time calculating a housing benefit claim and could result in tenants making more challenges.

Further Information

If you have any queries regarding the above, please contact  Zishaan Saleem or call 0121 214 3616.

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