Challenging Bedroom Tax Decisions Tool Kit February 2015 Version 11
Contents Page No. Introduction 3 Time limits 4 How to appeal 5 What happens when someone appeals 5 Which Bedroom Tax decisions should be appealed 6 Likely to win 7 List of challenges that are likely to win 7 Been on HB at same address continuously since before 1 st January 1996 9 A bit of a grey area, worth trying, good chance of winning 13 Student son / daughter 13 Severely disabled child needs own bedroom 14 A big grey area/ First Tier Tribunal decisions, outcome unknown, so worth trying 14 Size of room 14 Room being used for some other purpose 15 Couples who have to sleep in separate bedrooms 16 Occupation of the property access / joint custody of child 17 Non-household carer looking after household member other than HB claimant or partner 17 Judicial Review cases 18 Some relevant regulations / Definition of linked person 19 / 21 Standard Letters 22 IMPORTANT: the outcome of First Tier & Upper Tribunals are emerging every week so please do keep downloading newer versions of this Tool Kit from the website: www.housingsystems.co.uk 2
Introduction The social sector size criteria or Bedroom Tax rules were introduced in April 2013 and affect social tenants of working age who are deemed by the Housing Benefit Office to be living in a property larger than they need. These tenants see a reduction in their Housing Benefit entitlement to the value of 14% or 25% of their rent. This removal of the spare room subsidy as the Government calls it, is an extremely controversial measure introduced with the aims of making better use of social housing and reducing the Housing Benefit bill. It has, however, left many tenants having to pay a penalty for living in a property that although deemed too large for them has no useful spare rooms. Due to: the complexity of the rules, the fact that there is no definition given in these rules of what a bedroom is, conflicting commentary, and Judicial Reviews & emerging First Tier and Upper Tribunal decisions (that only appear to confuse some of the issues), it is increasingly difficult for landlords to offer appropriate and accurate advice about challenging a Bedroom Tax decision. This tool kit has been developed to help you to help your customers challenge a Bedroom Tax decision, giving informed and rational advice and commentary on its likely outcome. The tool kit assumes a good knowledge of the Bedroom Tax rules ie who is affected and who is not, who can be protected from it for set periods, how to work out how many bedrooms a tenant needs, who counts as a member of the tenant s household and who doesn t, and so on. Our members can read the extensive and up to date information we have about the Bedroom Tax on our website. If you are not a member and would like further information on the Bedroom Tax and other reforms please contact us for a free trial. Housing Systems provides the most comprehensive information specifically developed for social landlords to help them maximise their rental income and keep up to date with the reforms. We have produced this tool kit as an aid and it is not legal advice. Undoubtedly the information in this tool kit will go out of date quickly as new interpretations are made and new Tribunals are heard. We will endeavour to keep this tool kit up to date, however if you do spot something that you believe needs updating please do let us know. The latest version of the tool kit will always be available on the website. We ve separated the reasons why a tenant may challenge a Bedroom Tax decision into the following categories based on likely success and have provided additional information on each: 1. Likely to win as the Housing Benefit Office has not applied the rules correctly. 2. A bit of a grey area, worth trying, good chance of winning. 3. A big grey area, outcome unknown so worth trying. 4. Similar to one of the Judicial Review cases currently going forward to the Court of Appeal / High Court / Supreme Court. May only win if the Judicial Review case wins In other words, there are few guarantees of success, so customers who are thinking of challenging a Bedroom Tax decision need to be made aware of this. They should be advised to continue to pay the shortfall between their rent and Housing Benefit (plus any arrears) whilst their appeal is being considered in some cases this could take quite a while so it would be unfair to allow arrears to build as they might not win. 3
Time limits The time limit for challenging a Housing Benefit decision is one calendar month from the date the decision was posted, unless the Housing Benefit Office have made a mistake or not applied the law correctly in which case it is classed as an official error and as such there is no time limit within which their decision needs to be challenged. Therefore, unless your customer is challenging an official error, is a new tenant, or is making a new claim for Housing Benefit after a change in their circumstances*, the decision they are challenging was probably made in March / April 2013, so they are already outside this time limit. A further decision will have been made on their claim in April 2014 when the benefit rates changed, meaning there will be a new deadline for challenging this later decision - but again this is more than a month ago. However, the one month time limit can be extended in special circumstances to 13 months. The greatest chance of success in having the time limit extended is by requesting an APPEAL of the decision. This is because if the Housing Benefit Office do not believe the request for an extension of the one month time limit should be given, they then have to pass the late appeal request to HM Courts and Tribunals Service to make the ultimate decision on whether to allow it. Often HM Courts and Tribunals Service allow a late appeal where a Housing Benefit Office does not and have been known to allow an appeal outside of the 13 month limit. So we would suggest submitting an APPEAL against the March / April 2013 decision, and if this fails the HB Office may themselves treat it as a late appeal against the April 2014 decision and if not the tenant can ask that they do so. To be accepted as a late appeal there must be some reason why the tenant was unable to make the appeal within the month limit for example they, their partner or dependent has been seriously ill; or some other special circumstances exist. Ignorance of the law is not normally considered a good enough reason. We have included some standard text in our letters requesting a late appeal please remove this part if the challenge is being made within the one month time limit. *Note: check whether or not the 52 or 13 week protection should apply to your customer. 4
How to appeal An appeal must be made in writing and be from the person affected by the decision in Bedroom Tax decisions this will be considered to be the Housing Benefit claimant only not the landlord. However, where the decision being appealed is an official error, anyone (including the landlord) can point out this error to the Housing Benefit Office. Some Local Authorities have a special form for an appeal use this if you can and if they have one, otherwise use one of our standard letters (page 22) or write your own. The letter should contain: the HB claimant s name and address; the HB claimant s HB reference number and / or National Insurance number; the decision they are appealing against with the date of the letter where known and the reason why they disagree with this decision. And if they are outside the one month calendar limit for requesting an appeal, the special reasons why the appeal is being made late. Feel free to use the standard letters contained in this Tool Kit see page 22 or use parts of them to create your own. All these letters (and more) are available on our website for you to download. We have given suggested text throughout this Tool Kit and included some additional information, such as relevant regulations at the end. So please copy in to your letter any of this that you believe is relevant. What happens when someone appeals? When the Housing Benefit Office receives an appeal letter they will first look to see if they can revise their initial Bedroom Tax decision - ie change it - or, if they don t revise it they will pass the case onto HM Courts and Tribunals Service. If the case is passed onto HM Courts and Tribunals Service we would recommend that the tenant outlines their argument in greater detail in a submission and forwards this to them as soon as possible. If the case is passed onto HM Courts and Appeals Service please contact us we have some sample submissions that you can use. It is advisable that the tenant has a representative someone who can ring up HM Courts and Tribunal Service on their behalf, who will receive a copy of the Housing Benefit Office s submission, and who can accompany the tenant to the Tribunal. This could be you, a colleague, or a benefits adviser from a local advice centre. If a representative has been found before the tenant submits their letter of appeal then they should add their representative s name, job title and contact details onto the bottom of the letter: Please note John Smith, Benefits Adviser, Somewhere Advice Agency, Somewhere Street, Somewhere Town will be representing me. I request that all further correspondence regarding this appeal is copied to them. There is more information about the appeals process on our website. 5
Which Bedroom Tax decisions should be appealed? We have outlined in this Tool Kit the Bedroom Tax decisions that we feel the tenant may wish to appeal against and we have provided some standard letters (page 22) and background information to help them do so. There are no guarantees and different Housing Benefit Offices / different Tribunal judges do appear to be interpreting the Bedroom Tax rules differently. 1. Likely to win: 1.1. HB Office saying that to be allocated a bedroom for a carer the tenant / partner has to be on mid or high rate care DLA or a daily living component of PIP. (This is incorrect because this criterion is not stipulated in the Regulations). (page 7) 1.2. HB Office asking for unreasonable information to prove care need. (page 7) 1.3. HB Office deciding that an overnight carer does not need a bedroom as although there is a spare room in the property they are sleeping in another room instead. (page 7) 1.4. HB Office not applying the 52 week protection on death rules correctly. (page 7) 1.5. HB Office not applying the 13 week protection correctly. (page 8) 1.6. HB Office not allocating a bedroom to a person who normally resides in the property but is currently on remand / in hospital etc. (page 8) 1.7. HB Office applying the Bedroom Tax from April 2013 to 2nd March 2014 to tenants who met the 1996 rules. (page 9) 2. A bit of a grey area, worth trying, good chance of winning: 2.1. Student son / daughter studying away from home and HB Office has not allocated them a bedroom. (page 13) 2.2. HB Office not allocating a bedroom to a severely disabled child on mid or high rate care DLA who needs their own bedroom as they would disturb another child in the same bedroom at night time. (page 14) 3. A big grey area considered by a First Tier Tribunal already with mixed results, outcome unknown so worth trying 3.1. Room classed as a spare bedroom by the HB Office although it s too small / wrong shape / lack of usable floor space / too hot / no privacy, or another physical reason to be classed as such for Bedroom Tax purposes. (page 14) 3.2. Spare room being used for some other purpose an exceptional use such as storing medical equipment, but the HB Office are classing it as a spare bedroom when working out how many bedrooms the tenant has. (page 15) 3.3. Couples who have to sleep in separate rooms due to disability but the HB Office are only allocating them one bedroom when working out what size property they need. (page 16) 3.4. Occupation of the property eg where parent with access would lose this if did not have bedroom for child / young person (page 17). 3.5. Non-household carer staying regularly in the household to care for a household member who is not the tenant or their partner (page 17). 4. Judicial Review decisions (page 18) 6
1. Likely to Win If the Housing Benefit Office has not applied the Bedroom Tax rules correctly, or has asked for information that isn t needed (ie it was unreasonable to ask for it) then the tenant should appeal against the decision outlining why they feel the decision is wrong. It is difficult to produce standard letters for every possible scenario here so we have given as much detail as possible on the arguments so that you can write your own letter or amend a template. All our standard letters our shown on page 22 and available on the website. If you have a specific case and would like us to write a letter for you please just ask. Examples: 1.1 HB Office saying that to be allocated a bedroom for a carer, the tenant / partner has to be on mid or high rate care DLA or a daily living component of PIP. This is incorrect: HB Regulation B13 says that an extra bedroom can be allocated to a person who requires overnight care and HB Regulation 2 (see page 19) states that where the tenant / partner is not on either of these benefits they still meet this definition where they have: provided the relevant authority with such certificates, documents, information or evidence as are sufficient to satisfy the authority that P requires overnight care. Note 1: they must meet the other conditions too. See Standard Letter BT1, page 23. Note 2: the rules under Universal Credit are different. 1.2 HB Office asking for unreasonable information to prove care need such as asking for proof from social services when they are not involved in the case and the customer has already provided a letter from their GP confirming the need for regular overnight care. HB Regulation 86 says: a person who makes a claim, or a person to whom housing benefit has been awarded, shall furnish such certificates, documents, information and evidence in connection with the claim or the award, or any question arising out of the claim or the award, as may reasonably be required by the relevant authority in order to determine that person s entitlement to, or continuing entitlement to, housing benefit. 1.3 HB Office deciding that an overnight carer does not need a bedroom as although there is a spare room in the property they are sleeping in another room instead. The Judge in CH/0140/2013 (a LHA case) decided that a living room could be a bedroom if a carer was sleeping in it in this case it was a two bedroom house, the tenant and his wife were sleeping separately and so the carer (his daughter) had to sleep on a put up bed in the living room. 1.4 HB Office not applying the 52 week protection on death rules correctly ie in line with HB Regulation 12BA (see page 9) this could be where they are: Refusing to apply protection in this scenario: A family member s death made no difference to the number of bedrooms required at the time of their death (eg one of a couple), but within 52 weeks someone leaves the property meaning it is now under-occupied. Under the Regulations the protection should nonetheless be applied for the remainder of the 52 weeks. Saying that the protection on death does not apply to successions. However, HB Regulation 12BA allows this protection where the death is of a linked person (please see page 20 for 7
more information) as long as the new HB claimant was living in the property at the time of death para 3 states Where the claimant occupies a dwelling which is the same as that occupied by the claimant at the date of death of a linked person. Not applying the protection on death where the death occurred before April 2013 and the customer was already under-occupying their property before the death. The protection should still be applied. Not applying the protection where a couple in a two bedroom property were excluded from the Bedroom Tax due to one of them being Pension Credit age and this person has died. Protection should be applied. Members can find out more about the protection on death rules on our website. See Standard Letters BT15 & BT16, pages 37 & 38. 1.5 HB Office not applying the 13 week protection in line with HB Regulation 12BA because, for instance: Although the customer (or their partner) has not applied for Housing Benefit in the 52 weeks preceding their new HB claim, and has paid their own rent for the first few weeks / months of taking on the tenancy (however long ago that was)- they made a claim for HB when their tenancy started even though no award was ever made. HB Regulation 12BA (see page 19) says that someone has to have been able to meet the financial commitments for the dwelling when they were entered into. Whether they claimed HB or not at that time is irrelevant - ie claiming Housing Benefit does not exclude them from this Regulation indeed the fact that they were not awarded any Housing Benefit due to excess income actually demonstrates that they could meet the financial commitments at that time. The person now claiming Housing Benefit was not the original tenant - ie someone succeeded to their tenancy. HB Regulation 12BA allows the 13 week protection to apply to cases where a linked person (please see page 20 for more information) was able to meet the financial commitments for the dwelling when they were entered into. See Standard Letter BT17, page 38 1.6 HB Office not allocating a bedroom to a person who normally resides in the property but is currently on remand / in hospital etc and they intend to return to the property within the time limits set by Regulations. When considering who lives in the property and therefore who should be allocated a bedroom under the Bedroom Tax rules, the HB Office need to consider HB Regulation 7- Circumstances in which a person is or is not to be treated as occupying a dwelling as his home. This applies not just to the tenant and their partner but also to any non-dependants living in the property. HB Regulation 7 allows for temporary absences of up to 52 weeks where the tenant, partner or non-dependant is: on remand; in hospital; in respite care; a student studying away who is not claiming HB in their own right; on a training course; receiving medically approved care; or fleeing violence; - as long as they intend to return to the property within 52 weeks. Where the tenant, partner or non-dependent is away for any other reason eg: on holiday; custodial sentence; working away (apart from members of the armed forces); - then they must be intending to return to the property within 13 weeks to be considered living there and allocated a bedroom. NOTE: it is their total absence that counts. 8
1.7 HB Office applying the Bedroom Tax to tenants who have been continuously getting HB at the same address since before 1 st January 1996. Before Christmas 2013 we were made aware of a group of tenants who should not have been affected by the Bedroom Tax. On 9th January 2014 the DWP issued an Urgent Bulletin U1/2014 confirming this exclusion. However the protection was short lived - legislation was quickly put in place to 'remedy' the situation with effect from 3rd March 2014. This was confirmed in HB Circular A1/2014. See Standard Letters BT10 & BT11, pages 31 & 32. This exclusion applied to both Housing Association and Council tenants. In very basic terms, where a tenant had been in receipt of HB continuously for the same address since 1 st January 1996, they were excluded from the Bedroom Tax for the period 1st April 2013 to 2nd March 2014 (or an earlier date if they moved or stopped being entitled to HB before 2nd March 2014). But the rules are more complex than this, with a gap in entitlement of up to 4 weeks and some successions allowed (see no. Q6 below), and a change of address permitted in very limited circumstances (see no. Q2 below). Where a tenant has moved or abandoned a property at some point after 1 st April 2013, but before the landlord is able to get them to request this exclusion we believe that the landlord can write in to request a review of the HB awarded from 1 st April 2013 to the date of the move / abandonment use the standard letter BT10, page 31 just insert the date they moved / abandoned: I would be grateful if you could reassess the above tenant s entitlement to Housing Benefit from 4 th April 2013 to xx/xx/xxxx to remove the reduction.. For those tenants who fit this rule, their eligible rent has to be assessed using a different Regulation for the period before 3rd March 2014 - Reg 5 of the HB Consequential Provisions Regulations 2006, which does not include the Bedroom Tax rules. The rules are complex so if you have any questions or need help please email us on. Note that: 1. Occupation of the home must be continuous (with the limited exceptions listed in Q2 below) - temporary absences are allowed ie where HB entitlement has continued because the tenant has been treated as occupying the property as their home during their absence under HB Reg 7 ie absences of less than 13 or 52 weeks. 2. The HB claim must be continuous, although allowing for one gap in entitlement of up to 4 weeks. The claim also counts as continuous for some welfare to work beneficiaries who ve tried work, come off HB, then due to ill health left work and reclaimed HB within 52 weeks. These rules about continuity are ambiguously worded so there may be some margin for interpretation. 9
3. It must be the same HB claimant throughout the period - with some exceptions for successions where the former tenant died, or left the property due to separation or imprisonment (see below). What if a couple, who have been living together in the property, had swapped between them which one is the HB claimant? For example, Sean and Jill are married. Sean was the initial claimant from 1995. But when in 1997 they received a HB review form, Jill completed it because Sean was out at work she filled in her name as claimant and Sean as partner. So although their claim has been continuous for the same address all this time they swapped HB claimant. They still come under the 1996 rules see HB Circular A1/2014 available on our website. 1996 rules: Can a new tenant 'inherit' this protection from the previous one? Yes, in certain situations. The inherited protection rules say that the exclusion can be passed from one HB claimant to another where: Death If the beneficiary (ie the person entitled to the protection) dies then the protection can be passed onto: their partner, dependent child, son, daughter, parent, son-in-law, daughter-in-law, parentin-law, step-son, step-daughter, step-parent, brother, sister, grandparent, grandchild, uncle, aunt, nephew or niece, as long as this person was living in the property on the date the beneficiary died. This exclusion will apply where, between the beneficiary and the new claimant they have had a continuous claim for HB since 1 st January 1996 (gap of 4 weeks allowed) in respect of the same property. Separation If the beneficiary (ie the person entitled to the protection) leaves the property then the protection can be passed onto their partner as long as the partner was living in the property on the date the beneficiary left; and between them they have a continuous claim for HB since 1 st January 1996 (gap of 4 weeks allowed) in respect of the same property. Imprisonment If the beneficiary (ie the person entitled to the protection) leaves the property due to imprisonment (remand or sentence), then the protection can be passed onto their partner as long as the partner was living in the property on the date the beneficiary left; and between them they have a continuous claim for HB since 1 st January 1996 (gap of 4 weeks allowed) in respect of the same property. 10
1996 rules: Frequently Asked Questions 1. Does the tenant have to have been getting full HB since 1 st January 1996? No. Partial HB is OK. 2. Does this exclusion apply where someone has moved house? No. Not unless it is due to a fire, flood, explosion or natural catastrophe that meant their previous property was uninhabitable. NOTE: Where the move is after 1 st April 2013, this exclusion can apply up to the date of move. 3. We have a tenant who fits the criteria, but was decanted for a few weeks to allow improvements to his home will these rules apply to him? Usually any HB is awarded in respect of the property the tenant has been decanted to and so the tenant would fall outside this exclusion, unless the gap in HB entitlement was less than 4 weeks. Where the HB was paid in respect of his usual home during his absence, then he would be treated as living in the property whilst decanted and therefore as long as he has been entitled to HB continuously (gap of 4 weeks allowed) at this address since 1 st January 1996, will be excluded under these rules. 4. Did the tenant need to request this exclusion before the rules were changed? No. The reason for this exclusion was a drafting error by the DWP that failed to 'catch' a particular group of tenants. So, as the HB Office were not applying the rules correctly, this means that they had made an 'official error'. An official error can be pointed out to the HB Office at any time and if it is found to be an error must be corrected by them - so this means that there is no time limit within which the tenant has to ask the HB Office to review their claim. So even now the rules have changed and these tenants are no longer excluded from the Bedroom Tax, a tenant could still request a review of their HB for the period between 1 st April 2013 and 3rd March 2014 - they are not outside the time limit for doing so, as there is no time limit. And this will be true whenever the tenant discovers that they should have been excluded from the Bedroom Tax between 1st April 2013 and 3rd March 2014 because of these rules. 5. What if the tenant got a DHP during this period? Where a tenant was getting a DHP during the period 1st April 2013 and 3rd March 2014 and has now been excluded from the Bedroom Tax due to the 1996 rules, the HB Office will have reviewed the HB awarded to remove the Bedroom Tax reduction and will have paid any extra HB that is due as a result. Any DHP awarded during this period will not be a DHP overpayment and so does not need to be recovered. DHP overpayments can only occur where the claimant has misrepresented, or failed to disclose, a material fact, or where a mistake was made when the HB Office made a decision on the DHP application. As the 'error' was made on the HB claim and not the DHP claim, 11
the HB Office can ask the tenant to return the DHP award, but the tenant is under no obligation to do so. 6. We have a situation where a son took over his mother s tenancy between them they have been on HB continuously since 1 st Jan 1996 would the exclusion apply to him? If he took over following her death then yes the exclusion will apply as long as, between them, they have been on HB continuously (gap of 4 weeks ignored) for the same address since 1 st January 1996. 7. For the succession rules to apply does the current tenant have to have lived in the property since 1 st January 1996? No, but they must have been living in the property on the date the previous tenant died / left, and between them they and the previous tenant have been continuously entitled (gap of 4 weeks ignored) to HB at the same address. 8. What if the original tenant left the property, leaving their partner in residence who took over the property, and the partner has subsequently died, and the current tenant is their son? It would appear that there is no limit to the amount of times this protection can be passed on. So as long as between them all these tenants have been continuously in receipt of HB since 1 st January 1996 (gap of 4 weeks allowed) in respect of the same property, this exclusion would apply to the existing tenant. 9. Our HB Office are saying their records do not go back to 1996 what can we do? The tenant needs to write in to the HB Office explaining that they believe they are excluded from the Bedroom Tax as they have been in receipt of HB at the same address since 1 st January 1996, giving a brief outline of what their financial situation has been since then. Where no evidence is available the HB Office will have to make a reasonable decision on 'the balance of probabilities'. If you are a Housing Association, and you are receiving the HB on behalf of the tenant, check to see if the payments you are getting are being paid 4 weekly in arrears, or 2 weeks in advance/2 weeks in arrears. If it is the latter then this would be evidence that the tenant has been in receipt of HB continuously at the same address since October 1996, as this is when these payment rules changed. Only tenants who have made a new claim since then or moved should have their HB paid to their landlord on a 4 weeks in arrears basis. If they are not on a 2 weeks in advance/2 weeks in arrears payment cycle, then this may indicate that there has been a break in the claim but under these newly discovered rules a gap of 4 weeks is allowed, so it does not necessarily mean the tenant won't be exempt from the Bedroom Tax. 12
2. A bit of a grey area, worth trying, good chance of winning There are some grey areas in the Bedroom Tax rules where the Housing Benefit Office may have not had enough information to allocate bedrooms appropriately. In such cases the tenant can request an appeal of the decision outlining why they feel the decision is wrong / providing more information. 2.1 Student son / daughter studying away from home For a student studying away from home to be classed as living in their parent s home: 1. Their parents home must be their normal home, and 2. They must not be claiming Housing Benefit in their own right on their student accommodation (some lone parents / disabled students are able to do so), and 3. They must have an intention to return home within 52 weeks. This is covered by HB Regulation 7 para 16 (viii). Conditions 2 and 3 are based on fact. It is condition 1 which makes this a grey area. However, as long as the student son / daughter: has a bedroom in their parent s house which is not being used for any other purpose; has many of their belongings at their parent s house; uses their parent s house as a correspondence address for some (or all) of their mail; is on the electoral register at their parent s house etc etc then it would be difficult for a Housing Benefit Office to argue that it is not their normal home. So where the HB Office has refused to allocate a bedroom to a grown up son / daughter studying away at University under the Bedroom Tax rules the tenant needs to write in confirming conditions 1, 2 & 3 above, explaining (and providing proof where necessary) why it is their son s / daughter s normal home. We are aware that some Housing Benefit Offices feel that when a student studying away has a tenancy on a privately rented property ie not University halls (or similar), that this becomes their normal home. This decision can be challenged explaining why the son / daughter does not view it as such and why they still see their parent s home as their normal home. See Standard Letter BT6, page 28. If, even after these arguments, the Housing Benefit Office are refusing to allocate a bedroom to a grown up son /daughter studying away please contact us and we will see if we can offer any further advice. NOTE: There is one situation where the tenant could actually be better off if their student son / daughter was classed as living elsewhere. This is where the tenant would be entitled to the severe disability premium this increase in their benefits could be more than the loss to their HB due to the Bedroom Tax. This is most likely to occur when the tenant has no other adults living with them (ie no partner, no non-dependants, no lodgers) and they are entitled to the mid or high rate care component of Disability Living Allowance, or a daily living component of Personal Independence Payment or the Armed Forces Independence Payment. 13
2.2 Severely disabled child who needs their own bedroom as they would disturb another child during the night if they were to share the same bedroom. You may have heard of the Gorry case where the Judge decided that a severely disabled child who would disturb another child at night were they to share a bedroom should be allocated their own bedroom under Human Rights. The DWP eventually agreed to amend the Housing Benefit Regulations to allow an extra bedroom for a severely disabled child eligible for the middle or highest rates of Disability Living Allowance care component who would be expected to share a room under the size criteria rules but who is not reasonably able to do so due to severe disability. Although this firms up the previous guidance ie we now know the definition of a severely disabled child, there is still some discretion on the Local Authority s part to decide whether or not it is reasonable for them to share a bedroom, and these new rules only took effect from 4 th December 2013. Where the HB Office decide not to award the severely disabled child their own bedroom the claimant can appeal giving details as to why the separate bedroom is needed it would be worth taking a look at HB Circular A21/2013 for the type of issues the DWP has told the HB Office to take account of (available on the housing systems website). See Standard Letter BT2 & BT3, page 24 & 25. 3. A big grey area / First Tier Tribunal mixed results, outcome unknown so worth trying Another area where a tenant may wish to challenge the Housing Benefit Office is where they appear to have applied the Bedroom Tax rules too strictly in following the DWP s advice that it is up to a landlord to describe how many bedrooms a property has - without taking into account whether or not the bedroom can actually be used as a bedroom. (Although this is DWP guidance, it doesn t say in the regulations that the landlord s definition is the only factor to consider and the Judge in the Upper Tribunal decision below said that the landlord s definition is only a starting point.) 3.1 Size of room - too small to be a bedroom We now have an Upper Tribunal decision on this which is binding on Scottish HB Offices and highly persuasive on English and Welsh ones. SSWP v David Nelson and Fife Council, SSWP v James Nelson and Fife Council [2014] UKUT 0525 (AAC). The findings / implications in summary are: Size of room in itself is irrelevant so the majority of appeals based solely on size will now fail. The room does not have to be large enough for an adult to use full-time, but a room that just fits a single adult bed (ie with walls touching the bed on three sides) is not a bedroom. Where the tenant has disputed that a room is a bedroom, the HB Office need to outline why they feel it is- if they disagree with the tenant. To make this decision they will need 14
further information about the room this could involve photos or even inspecting the room. The factors to take into account when considering whether a room is a bedroom include: size, height, storage space/access to storage, privacy, natural light ie a window, ventilation, heating. What the landlord calls a bedroom is just a starting point. The current use of the room is irrelevant unless there has been some physical alteration. We are aware of one First Tier tribunal that followed the decision in the case and allowed the claimant s appeal ie that their 'spare' bedroom was not a bedroom for bedroom tax purposes because of its size, shape and other drawbacks including that it was always hot as it housed the boiler and immersion heater tank. Any tenant who has a bedroom that they feel- due to factors such as those considered abovecannot be used as a bedroom they can use our Standard Letter BT8, page 30 to challenge their Bedroom Tax decision. 3.2 Room being used for some other purpose There may be other reasons why a room cannot be used as a bedroom. For example the room could be used for an exceptional use, such as being full of medical equipment for a family member that cannot be stored elsewhere in the property. Where the reasons why the room cannot be used as a bedroom are linked to disability eg because it is being used to store medical treatment then it will be difficult for the tenant to challenge that decision unless they have applied for and been refused a DHP. This is because a High Court and a number of Upper Tribunals have found that whilst the Bedroom Tax does contravene Article 14 of the Human Rights Act- ie does discriminate against people with disabilities that it is the whole package that the government is providing ie including Discretionary Housing Payments matters. And that as the discrimination can be remedied by an award of a DHP, they found that the whole package does not contravene Human Rights and therefore the Bedroom Tax rules are not unlawful. Where the room is being used for some other purpose then again it will be difficult for the tenant to challenge that it is not a bedroom. This is because in the size Upper Tribunal ie Nelson v Fife, the Judge decided that unless the room had been altered in some way it is the room s potential use that is important that whether it is a bedroom or not should be considered when viewing the property as empty, and when compared to other similar properties in the area. There may however be some situations when a bedroom has been altered eg to include a stair lift which means that it is not suitable as a bedroom and in such cases the customer can request an appeal of the Bedroom Tax decision giving full details (and evidence / photos where available) of why they feel the room cannot be used as a bedroom. And as we have not yet had an Upper Tribunal looking solely at the use of a room we would not want to put tenants off appealing a Bedroom Tax decision if they believe its current use prevents it from being a bedroom. 15
3.3 Couples who have to sleep in separate bedrooms due to disability The High Court and a number of Upper Tribunals have found that whilst the Bedroom Tax does contravene Article 14 of the Human Rights Act- ie does discriminate against people with disabilities that it is the whole package that the government is providing ie including Discretionary Housing Payments that matters. And that as the discrimination can be remedied by an award of a DHP, they found that the whole package does not contravene Human Rights and therefore the Bedroom Tax rules are not unlawful. Therefore the only time a couple who need to sleep in separate bedrooms can argue that they should be allocated a bedroom each, ie that the rules are discriminatory, is where a DHP has been applied for but not been awarded. But even then there are no guarantees, as it was the availability of DHPs that meant the Bedroom Tax was not discriminatory, so even where a DHP has not been awarded, eg because the tenant has enough excess income to afford to pay the shortfall, the appeal may fail. They can use our Standard Letter BT4, page 26 to challenge their Bedroom Tax decision. Note: where a DHP has been refused due to excess income where this is because the LA took account of DLA or PIP as income, the tenant should be advised to challenge the DHP decision on the grounds that DLA / PIP are not meant to be used to pay for housing costs. You can use the following to back up this argument. In the Burnip case the Judges decided the following (please see paragraph 45 of their decision) and this is, I believe, a clear statement that DLA / PIP should not be classed as an income available to pay a Housing Benefit shortfall and therefore should not be included as income when a claim for DHP is assessed: First, I think it is necessary to draw a clear distinction between the benefits which Mr Burnip was entitled to claim for his subsistence, and those which he was entitled to claim in respect of his housing needs. His incapacity benefit and disability living allowance were intended to meet (or help to meet) his ordinary living expenses as a severely disabled person. They were not intended to help with his housing needs. This is demonstrated, in my view, not only by the availability of HB and discretionary housing payments as separate benefits with separate rules applicable to them, but also by the way in which HB is structured. As I have explained, the amount of HB is fixed by reference to an applicable amount which represents what the claimant is taken to need to live on, and if a claimant's reckonable income exceeds his applicable amount, the amount of HB is reduced by 65% of the excess. Furthermore, Mr Burnip's applicable amount included the three disability premiums which I have mentioned, while the whole of his disabled living allowance was disregarded in the calculation of his reckonable income. Thus it was only if (in broad terms) his incapacity benefit and student loan together exceeded his applicable amount that any reduction would fall to be made in the amount of his HB; and to the extent that there was such an excess, the HB rules themselves prescribed how it was to be taken into account. It would therefore be wrong in principle, in my judgment, to regard Mr Burnip's subsistence benefits as being notionally available to him to go towards meeting the shortfall between his housing- related benefits and the rent he had to pay. 16
3.4 Occupation of the property To be allocated a bedroom someone has to be occupying the claimant s dwelling as his home. Access to a child/children An Upper Tribunal has considered the issue of whether not allowing a bedroom for a child to whom a parent has access contravenes Humans Rights and decided it does not unless access would have to stop if the parent moved to smaller accommodation. So there are limited circumstances when a parent with access to a child/dren can challenge a bedroom tax decision on these grounds they will have to demonstrate that access would stop if they moved to smaller accommodation. Another argument that was being put forward, was that a child could be considered to be living in two properties. However a recent Upper Tribunal MR v North Tyneside Council and Secretary of State for Work and Pensions has put an end to bedroom tax appeals on this basis. The Judge decided that under HB Regulations a child can ONLY be treated as occupying the home where Child Benefit was in payment for them. 3.5 Non-household carer staying regularly in the household to care for a household member who is not the HB claimant or their partner. For a non-household carer to be allocated a bedroom under the Bedroom Tax rules they have to be staying in the property on a regular basis in their own bedroom to care for the HB claimant or the HB claimant s partner. Under the Bedroom Tax rules, no extra bedroom can be allocated where the non-household carer is staying to care for another member of the household other than the claimant or claimant s partner. An Upper Tribunal has decided that it is unjustifiable discrimination under Article 14 to treat a member of the household s overnight care requirements differently to those of the tenant or tenant s partner. But that an award of a Discretionary Housing Payment can remedy this discrimination Therefore the only time a tenant can argue that they should be allocated an extra bedroom for a carer of a child / non-dependant ie that the rules are discriminatory, is where a DHP has not been awarded. See Standard Letter BT5, page 27. 17
4. Judicial Review cases Judicial Review is used where the law is being applied correctly but the claimant believes either that the law discriminates against them, or that the office following the law is taking too long, or where the law leaves the decision to the discretion of the benefit authority and the claimant believes that this discretion has not been applied correctly. A tenant who wishes to go through the Judicial Review process needs to get legal advice (and an organisation willing to finance the appeal!). There are a number of Bedroom Tax cases going through to Judicial Review process with one having reached Supreme Court stage after failing at the Court of Appeal and High Court. Should any of the Judicial Review cases win then they will set case law that the HB Office will need to follow - or may mean that the DWP need to amend the rules. However, the anti-test case rules mean that the Judgement will have no impact on a past period for any other cases, unless the claimant had already put in an appeal which had been suspended pending the outcome of the relevant Judicial Review. Please see the website for more information about the current cases going through the Judicial Review process. See Standard Letter BT14 page 35. 18
Some Relevant Regulations Person who requires overnight care HB Regulation 2: person who requires overnight care means a person ( P ) (a) who (i) is in receipt of attendance allowance; (ii) is in receipt of the care component of disability living allowance at the highest or middle rate prescribed in accordance with section 72(3) of the Act; or (iii) although not satisfying either paragraph (i) or (ii) above has provided the relevant authority with such certificates, documents, information or evidence as are sufficient to satisfy the authority that P requires overnight care; and (b) whom the relevant authority is satisfied reasonably requires, and has in fact arranged, that one or more people who do not occupy as their home the dwelling to which the claim or award for housing benefit relates should (i) be engaged in providing overnight care for P; (ii) regularly stay overnight at the dwelling for that purpose; and (iii) be provided with the use of a bedroom in that dwelling additional to those used by the persons who occupy the dwelling as their home, but, in a case where P is treated as occupying a dwelling which P does not actually occupy, paragraph (b)(ii) and (iii) are to be treated as satisfied where the relevant authority is satisfied that the dwelling contains such an additional bedroom and that P did or will reasonably so require and so arrange at such time as P actually occupied or occupies the dwelling; 52 week and 13 week protection HB Regulation 12BA: 12BA. (1) This regulation applies where a maximum rent (social sector) has been, or is to be, determined in accordance with regulation A13 (when a maximum rent (social sector) is to be determined). (2) Except where paragraph (3) or (6) applies, the amount of a person s eligible rent is the maximum rent (social sector). (3) Where the claimant occupies a dwelling which is the same as that occupied by the claimant at the date of death of a linked person, the eligible rent is (a) the eligible rent which applied on the day before the death occurred; or (b) in a case where no eligible rent applied on that day, an eligible rent determined in accordance with regulation 12B(2), where that eligible rent is more than the eligible rent determined in accordance with paragraph (2). (4) For the purpose of paragraph (3), a claimant is treated as occupying the dwelling if paragraph (13) of regulation 7 (circumstances in which a person is or is not to be treated as occupying a dwelling as his home) is satisfied and for that purpose paragraph (13) shall have effect as if subparagraph (b) of that paragraph were omitted. 19
(5) Where a person s eligible rent has been determined in accordance with paragraph (3) (protection on death), it shall apply until the first of the following events occurs (a) the period of 12 months from the date of death has expired; (b) the determination of an eligible rent in accordance with paragraph (3) (protection on death) in relation to a subsequent death; (c) there is a change of circumstances and the relevant authority determines a new eligible rent in accordance with paragraph (2) which is equal to or more than the eligible rent determined in accordance with paragraph (3); (d) there is a change of dwelling; or (e) the determination of an eligible rent under regulation 12B. (6) Where the relevant authority is satisfied that the claimant or a linked person was able to meet the financial commitments for the dwelling when they were entered into, the eligible rent is an eligible rent determined in accordance with regulation 12B(2) where that eligible rent is more than the eligible rent determined in accordance with paragraph (2). (7) Paragraph (6) shall not apply where the claimant or the claimant s partner was previously entitled to benefit in respect of an award of housing benefit which fell wholly or partly less than 52 weeks before the commencement of the claimant s current award of housing benefit. (8) Where a person s eligible rent has been determined in accordance with paragraph (6) (13 week protection), it shall apply until the first of the following events occurs (a) the first 13 weeks of the claimant s award of housing benefit have expired; (b) the determination of an eligible rent in accordance with paragraph (3) (protection on death); (c) there is a change of circumstances and the relevant authority determines a new eligible rent in accordance with paragraph (2) which is equal to or more than the eligible rent determined in accordance with paragraph (6); (d) there is a change of dwelling; or (e) the determination of an eligible rent under regulation 12B.. 20
Linked Person Housing Benefit Regulation 2 defines a linked person as: a) any member of the claimant's family; (this includes a partner, child or young person that the claimant or partner is responsible for) b) if the claimant is a member of a polygamous marriage, any partners of his and any child or young person for whom he or his partner is responsible and who is a member of the same household; or c) any relative of the claimant or his partner who occupies the same dwelling as the claimant, whether or not they reside with him, except for a relative who has a separate right of occupation of the dwelling which would enable them to continue to occupy it even if the claimant ceased his occupation of it; What about non-dependants who succeed a tenancy following a parent's death? This is a grey area and different Housing Benefit Offices are taking different approaches. 1. The non-dependant becomes the tenant and the Housing Benefit claimant. Housing Benefit Regulation 12BA states that the 12 month protection will apply 'Where the claimant occupies a dwelling which is the same as that occupied by the claimant at the date of death of a linked person,...' 2. The non-dependant, (now claimant) was living in the property when their parent died, so the issue is whether or not the parent was a 'linked person'. 3. Was the parent a 'member of the claimant's family' normally this would mean claiming family ie partner and dependent child / young person but the Regulation says (this includes a partner, child or young person that the claimant or partner is responsible for) so does that mean that it could include other family members too - some Housing Benefit Offices may accept that it does. 4. If not a 'member of the claimant's family' it is unlikely that they would come under the 'any relative of the claimant' as the parent no longer occupies the property and when they did they had a separate right of occupation ie the parent could continue to live there (as tenant) even if the nondependant left. So does this protection apply in joint tenancy cases? If the joint tenancy is between a couple then, yes. If it is between other relatives then hopefully, we think they can argue that the occupation rights of joint tenants are not separate from one another: there is just one tenancy, and if that tenancy ends all joint tenants simultaneously lose their right to occupy. So the surviving joint tenant would be protected on death as long as their relationship to the deceased person falls within the definition of 'linked' person. But if the joint tenancy is between two people who are not related then the person who died is not a 'linked person' and so the protection would not apply. 21