Bedroom tax where a room is too small to share

Nuneaton and Bedworth Borough Council v Hockley & SSWP 2017 [UKUT] 471 (AAC)

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 case was heard by the Court of Appeal on 21/05/19 and judgment was handed down on 24/06/19. The Court of appeal held that "bedroom" as it is used in Regulation B13(5) of the Housing Benefit Regulations 2006, should be interpreted as meaning a room capable of being used as a bedroom by any of the categories listed in Regulation 13(5), and not by the particular claimant. The Court found that there is no subjective element in the assessment and that a bedroom suitable for a baby would also be suitable for a 15 year old, as the Regulations do not make a distinction. Both rooms being considered in this case could therefore be classed as bedrooms, meaning that the family did have a “spare” room.

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Background

This case concerned 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.

RH 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.

RH 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 RH’s appeal in favour of the local authority. RH 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 appealed the FtT’s decision to the Upper Tribunal and the Secretary of State for Work and Pensions joined as second Respondent in support of the local authority’s appeal. A three-judge panel heard the appeal on 14 July 2017 and gave their judgment on 1 December 2017.

The UT framed the issue raised by the case as 'the connection issue': is a room in a dwelling classified without reference to the particular individual or class of individual who may occupy it or must the room in question be one that can be used as a bedroom by the actual occupants or class of occupants? The UT answered the first half of this question negatively and the second half positively i.e. Reg B13(5) of the Housing Benefit Regulations entitles a claimant to a bedroom for each category of person occupying the dwelling and 'the natural expectation of that language is that the room would be a bedroom for the persons bearing the characteristics of that category, not a room that ignored those characteristics'. Accordingly, a bedroom for two children of the same sex must be a room which is physically capable of accommodating two children, otherwise it is to ignore the characteristics of the particular category. If the bedroom is too small to accommodate this category, it becomes necessary to move down the Reg B13(5) list and identify the next category the children fall into which the bedroom is capable of accommodating.

Despite the clear legal analysis, the UT considered that the FtT had not made sufficient findings as to whether the second of the bedrooms could be reasonably furnished with a bunk bed and remitted the matter back to the FtT for hearing. In the meantime, the SSWP appealed the legal issue and this was heard in the Court of Appeal on 21st May 2019. The Court of Appeal found that the regulations' reference to a "bedroom" meant a room capable of being used as a bedroom and it was not possible to read anything further into this. Therefore, a room was a bedroom if it could be used as a bedroom by any one of the categories of persons. In RH's case, the fact that either of the rooms could have been used as a bedroom for one person meant that both were bedrooms under the regulations, so the two boys would be expected to share one of them, meaning that there was a spare room.