Bedroom tax where a room is too small to share

Last updated: September 25, 2017

Nuneaton and Bedworth Borough Council v Hockley & SSWP CH/1987/2016.

This case concerns the removal of the spare room subsidy, widely referred to as the ‘bedroom tax’, in cases where a bedroom is too small for two children to share. The bedroom tax came into force on 1 April 2013 and made amendments to the Housing Benefit Regulations 2006 placing restrictions on the amount of housing benefit that can be claimed by tenants in the social sector. Where the number of bedrooms in the household exceeds the number of bedrooms the claimant is entitled to in accordance with the regulations, the housing benefit is reduced by 14% for one ‘spare’ bedroom or 25% for two or more ‘spare’ bedrooms. Regulation B13(5) prescribes who is entitled to a bedroom in a household. It prescribes that two children, regardless of their sex, who are less than 10 years old and two children, regardless of their age, of the same sex are able to share a bedroom.

Rachel Hockley and her husband live in a three-bedroom housing association property with their two sons, aged 9 and 11. The two bedrooms occupied by the sons are very small with limited space and contain minimal furniture. In April 2013, Nuneaton and Bedworth Borough Council applied the bedroom tax and a 14% reduction to their housing benefit for a room, deemed to be a ‘spare bedroom’, occupied by one of their two sons. The Council submits that the two boys should share one of the rooms.

Mrs Hockley appealed the Council’s decision arguing that neither of the boys’ rooms were big enough to accommodate both children. In the first instance, the FtT rejected Mrs Hockley’s appeal in favour of the local authority. Mrs Hockley appealed to the Upper Tribunal, via a paper hearing, and the UT remitted it back to the First-tier Tribunal (FtT) to be reheard. The local authority conceded that bedroom 1 could not be used by both boys as bunk beds – the only way two beds could fit in the room - would block light into the room. However, the local authority submits that bedroom 2 is suitable for both of the boys with the use of under the bed storage, wall organisers and other niche furniture items. At the second hearing, the FtT allowed the appeal and held that bedroom 2 is too small and that neither bedroom constitutes a bedroom for two children.

Nuneaton & Bedworth Borough Council have appealed the FtT’s decision to the Upper Tribunal and the Secretary of State for Work and Pensions has joined as second Respondent in support of the local authority’s appeal. The Tribunal will consider what constitutes a bedroom and who it can accommodate, with reference to the issues raised in the case of SSWP v Nelson [2014] UKUT 525 (AAC), along with the other alleged errors of law the Appellant states the FtT made in its decision.

Following a hearing on 14 July 2017, a Three-judge Panel has requested further submissions from the parties to the appeal.