I feel forced, thanks to the bedroom tax, to let my anonymity slip slightly and disclose the fact that by day I work as a policy specialist in the UK housing sector. This post is in response to wild myths circulating Twitter and Facebook around the relationship between the bedroom tax and the 1985 Housing Act.
For the avoidance of doubt I shall be clear: I am 100% opposed to the government’s social sector size criteria or ‘bedroom tax’. It is a deeply flawed, unfair policy which targets the poor and disabled and will cost the taxpayer more rather than save any money. I welcome the public outcry about this, although from own personal perspective I feel Labour Left and others are rather late to the ‘party’. Many of us in the sector have been warning about the bedroom tax and contesting it for some time now.
The first point I wish to make is that social landlords and councils are diverse and some are much better than others. I think, in the late rush of protest, this diversity has been lost in the debate. Many social landlords are bitterly opposed to welfare reforms and have been fighting tenants’ corner on this long before many tenants and, certainly the mainstream media, knew the bedroom tax existed, let alone comprehended its full implications. Some social landlords however are deserving of tenants’ wrath; but I will not name names here (la la la la la la) in case my Marxist Nutter persona is ever traced back to me and my job becomes at risk.
My second point is regarding the following statement which has spread all over numerous social media and has cropped up in a number of social landlords’ in trays.
If your small room is 70 sq.ft ( 63 sq.ft is 9ft x 7ft) or under it is classed as a BOXROOM. Therefore it cannot be charged bedroom tax, this is listed under the Housing Act 1985 section 326.
Please use this, do not take any excuses from the council as the Housing Act 1985 cannot be changed by law.
Although I very much approve of the sentiment, this statement is wrong on a number of levels and does tenants no favours at all. The law here is very very complicated and there are still a lot of unknowns. My feeling is that this statement has its origins in the superb SPEye Blog written by Joe Halewood; but this blog has been misunderstood. The issue is further complicated by the National Housing Federation’s (NHF) response to it. An issue shared by both the statement above and NHF’s response is they both claim to be unequivocal fact when the truth is far more muddy and anyone who claims to know the definitive answer should be considered very suspect. Let me take each position in turn.
Starting with the quote above, the first thing to note is that the concept of a ‘boxroom’ does not exist in law, so no room can legally be classed as a boxroom. As the NHF correctly point out, S 326 of the Housing Act 1985 refers to guidance designed to assess statutory overcrowding and uses criteria that (as only real housing geeks will know) date back to the 1930s and are not very generous. In fact, if S 326 of the 1985 Housing Act is used to define a bedroom, then living rooms dining rooms and even parts of kitchens can be classed as bedrooms! Thus, it follows (and this is just a thought experiment, I should point out) that if you followed the statement quoted above to its logical conclusion, then tenants affected by the bedroom tax would be classed as under-occupying by even more bedrooms and would receive a greater reduction in housing benefit. Worse still, social landlords would be forced to reclassify all their stock and count living rooms, conservatories, dining rooms etc (providing they are over 70Sq. ft or 50 Sq. ft. for young children) as bedrooms and this would increase rents dramatically for ALL social tenants (social tenants only as this would create a discrepancy with the private sector, which would certainly be subject to legal challenge; but here we are heading down a path of multiple hypotheticals so we’d best stop – although Joe Halewood is happy to lead you further down this rabbit hole if you wish) ! In addition, the 1985 Housing Act can be(and has been) changed (amended) many times and so the last sentence is demonstrably incorrect. Thus it is easy to see the quoted statement is errant and actually potentially dangerous/ self defeating nonsense!
NHF’s response on the other hand is more difficult to dismiss; but is also, in my opinion, not entirely accurate. In an attempt to circumvent a long argument, I will simply state what the NHF states is (more or less) a re-iteration of the government’s official opinion with respect to how a bedroom is defined for the purposes of the bedroom tax. Now, government opinion is a powerful thing and social landlords would be mad to dismiss it; but equally their opinion is not the law. I am both saddened and slightly perplexed that the NHF should choose to be a mouthpiece for government opinion on this, especially since their CEO has (only today) stated that the bedroom tax policy ‘does not add up‘.
The government’s view on what defines a bedroom oscillates between the related but separate positions that:
- It is up to landlords to define a bedroom for housing benefit purposes; and
- The number of bedrooms a property has is determined by the tenancy agreement
(For a more detailed discussion of the implications of these positions see here)
This government view is, in my opinion, open to legal challenge. It does not help the government’s case that they have two subtlety different views on this and thus hold an inconsistent opinion. This is where things can get very complicated; but I will try to keep it simple. There is certainly a strong case that, if the government imposes a penalty based on the number of bedrooms a property has, then they should be required to define a bedroom. Technically speaking this is unrelated to the 1985 Act and overcrowding, not least as there are other potential definitions of a bedroom in law, which could be applicable. The reason, I think, Joe Halewood and others picked up on s. 326 of the 1985 Act is because it is likely that the legal challenge (that the government must define a bedroom for the purposes of the bedroom tax) will manifest itself on the basis of a case where the 1985 Act MAY be deemed to apply. For example I can see a case being brought where 2 siblings (over 10 of the same sex) sleep in separate rooms; but under the bedroom tax rules are expected to share a room which is considered too small for them under s.326 of the 1985 Act. Now, as the NHF correctly say, it is nigh on impossible for this household to be deemed statutorily over-crowded; however this is not the point. The court will be asked whether it is fair that the tenant is given a financial penalty on the basis that they refuse to expect their children to sleep in conditions which may be considered over-crowded under the 1985 Act. Here the issue of whether or not it is reasonable to expect them to sleep in the living room etc will be debated and to further complicate matters, I suspect the Overcrowding and Space Standard of the Housing Health and Safety Rating System may come into play here (which, to simplify, is yet another way of measuring overcrowding; but is slightly different to the 1985 Act). Here the court will essentially be asked to determine if the 1985 Act applies to the bedroom tax.
In sum, there are two outstanding legal issues to which nobody (not the government, not Labour Left, not the NHF, not Joe Halewood and not me) know the answer to.
- Does the government have to define a bedroom for housing benefit purposes in light of the bedroom tax; and
- Is the 1985 Act applicable in certain bedroom tax cases
Only a court can decide these things. The government, NHF and many others seem to pretend like they already know. They don’t. Until a case is brought nobody knows what the answers to the above questions will be.