If it’s not 70 sq ft, it’s not a bedroom

Special note, 12th December, 2014.  The argument I made here in the last paragraph has been considered by the Upper Tribunal and rejected.  See this link for an explanation.  However, the decision of the Upper Tribunal also says two other things:  that it is not up to the landlord to decide and there must be an inspection of the room, without which no imposition of the bedroom tax is lawful.

Further note, 3rd April 2016:  The Upper Tribunal has now decided that to be a bedroom, a room “…should be capable of accommodating a single adult bed, a bedside table and somewhere to store clothes … , as well as providing space for dressing and undressing.”  Joe Haldeman has calculated this to imply an absolute minimum of 65.81 sq ft, and more depending on the layout of the room.

The new under-occupancy rules will mean that people will have their benefits cut when they are deemed to be occupying property that is too large for their family size. This will affect benefits for hundreds of thousands of people – the estimates for Scotland alone run between 80,000 and 105,000 tenants of social housing.

The standard that is being applied is the 1960 bedroom standard, introduced in 1960 for the Social Survey (the first use was in P Gray, R Russell, 1960, The housing situation in 1960, Central Office of Information.) This was intended. more than fifty years ago, to be used in place of the restrictive standard in the Public Health Acts (1936 and 1957).

It’s been reported that Knowsley Housing Trust are in the process of reclassifying the size and type of their bedrooms. This is not as radical as it sounds; they are only reclassifying 566 properties in a stock of 14,000. When I was letting council housing in the 1970s, I had to reclassify properties to help house larger families. Most local authorities had only two- and three-bedroomed properties; very few properties had four bedrooms or more. So where a three bedroom property had a dining room or a ‘front kitchen’ area, reclassifying a downstairs room as a bedroom made sense. Later, a housing association committee I was on routinely arranged for permitted storage space with walk-in cupboards to be pooled, to make something that could be used as a boxroom or small bedroom. If revisiting those classifications means that people can afford the rent, it’s worth doing.

Beyond that, there’s another standard to take into account. For the purposes of the 1936 Public Health Act, there was a minimum size of bedroom. No room less than 50 sq ft (4.65 sq metres) was allowable as a bedroom; any room between 50 and 70 sq ft was classified as a half-person bedroom (only suitable for one child under 10); any part of a room less than 5 feet in height should be disregarded. The 1936 space standard is now contained in England in the Housing Act 1985, s.326 and in Scotland in the Housing (Scotland) Act 1987, s 137. This is still the law. It can’t be claimed that a standard designed for one purpose is conclusive in a different context, but there is at least a reasonable case to make that we know what should be counted as a bedroom, and what should not. If a room is not at least 110 sq ft (10.2 square metres), it’s not big enough for two people over ten, and if it’s not at least 70 sq ft (6.5 square metres), it should not be counted as a bedroom at all.

Additional note, 10th September:  A recent tribunal case in Fife permitted a challenge to the definition of a bedroom, discounting a room that was 67 sq ft with a combed ceiling.   This is not authoritative but does indicate that the definition of a room is open to challenge.

44 comments

  1. richard clavering

    hi paul, my 3rd bedroom is 66.24 sq metres, would it be classed as ( not a bedroom ) thanks richard

    • Paul Spicker

      There isn’t an undisputed classification that you can use to prove the point. I’d argue, as I’ve argued here, that a bedroom of 66 square feet (I’ve made the same typo before) is half a bedroom – suitable for one child under 10, and no more. If the property was being occupied, for example, by parents with one child over 10, I think the case can at least be made that there is no underoccupation. If there is only one child under 10, there would be a spare bedroom – the middle bedroom. But if the second bedroom is less than 110 square feet, and the family includes two children over 10, I think there’d be a reasonable case to make that the property would actually fall below the bedroom standard – there’d be no bedroom that could be occupied by two people over 10. This is a case that can be made, not a definitive answer; the landlord has to make a reasonable return, and the local authority has to accept it. In the cases I’ve mentioned here, I think the simplest and fairness way to do the calculation would be not to count the room under 70 sq ft.

      • Paul Spicker

        I’d take the view, fairly strongly, that it cannot be. This is a box room, well below the minimum size of bedroom permitted in public health legislation and way below the size of the rooms being disputed in the tribunal cases. But if you have problems, the tribunal cases should in any case be decisive. As before, my best advice is to go to a Law Centre, Welfare Rights Centre or Citizens Advice Bureau to get support with this.

        • Jo

          Hi I could with a bit of advice if possible. I successfully appealed the bedroom tax because the room is so small a single MATTRESS does not fit in there, the LA sent someone out to measure etc and agreed with me, they reclassified it as a 2 bedroom house and adjusted housing benefit. I should point out that I originally appealed back in 2013 but was fobbed off. Anyway, the HA advised me to ask for a full refund of bedroom tax we’ve paid since 2013 so I wrote a letter to LA asking for this. Weeks later, just before xmas, i have received a letter saying they have now revised their decision and because the HA will not reclassify as 2 bed property they have reclassified it back to a 2 bed and referring it to tribunal!!! All this because I asked for the money back that I believe I was wrongly paying for a room that never has or never will be used as a bedroom! I’m so angry with them! HA are shocked at this and are supportive but adamant it’s LA ‘s place and LA being a-holes! I asked for a copy of my 2013 appeal letter and it’s such a bad copy that you can barely read it, I can just about because it’s my own writing. I’m prepared to go to tribunal but I’m shocked they would want to because I think I have a good case. I can’t believe their doing this to us, what should I do!?

    • Paul Spicker

      This is more than 72 square feet, and according to the law it’s likely to be considered suitable for one person over the age of ten. I should perhaps explain however that I’m not claiming to be an authority on what is, and what is not, a bedroom; I’ve identified an argument that people can reasonably raise with their landlord or local authority.

  2. BEV BARRATT

    HI
    MY SMALLEST BEDROOM IS 49.76 square feet. my housing association are addiment its a bedroom how can i prove them wrong and get the bedroom reclassified please help thank you

    • Paul Spicker

      As I’ve explained more than once, I cannot offer an authoritative judgement. I would though suggest that you appeal the classification first to the Housing Association’s committee, then to the local authority that determines the rates.

  3. Ian Mills

    Could create issues for estate agents My parents 3 bedroom property has now all of a sudden become a two bedroom property if sticking to the 70 Square feet rule.

    • Paul Spicker

      Estate agents aren’t affected by the bedroom tax, but there is a general point here. Some of the properties being advertised and sold on the market – such as converted cupboards – have been marketed in open defiance of laws relating to public health. Alright, some people are desperate to find anything they can afford – but unbelievably, it’s also recorded in the report that people want to buy these places for their domestic staff. Councils are supposed to order their closure; it’s disturbing that so many authorities are abdicating their responsibilities.

  4. Michelle Gledhill

    One of my bedrooms measures 8ft by 8ft 7 1/2 inches. Does this classify as a bedroom. The bedroom contains 1 single bed, 1 wardrobe, 1 bedside draws. The rest of the room is unusable space because of a window & radiator. The bedroom door cannot open to it’s full potential because, the foot of the bed, is stopping the door from opening. Can you help.

    • Paul Spicker

      My argument was that a room of this size (69 square foot) was legally considered to be suitable only for a ‘half person’ (a child under the age of 10), and that an adult or older child in it would have to be considered overcrowded. However, it’s a long time since I put up this blog entry, and things have moved on; there have been several legal cases. Probably the most important is a simple rule – if it has a bed in it, the landlord is probably going to classify it as a bedroom. The best you could hope for is that a social landlord might reasonably state that this is not a bedroom, and if they do, the DWP would not be in a position to challenge it. It is, however, in the discretion of the landlord.

      • Marcine

        My son is 12 in a room 30.28 square ft. My housing officer from barking and dagenham council today told me is doesn’t matter anymore and still classed as a bedroom due to the amendments legislation bill.
        Is this correct?

        • Paul Spicker

          Have you got that measurement right? 30.28 is very small indeed – the surface area of a single bed is 19.5 square feet, so if you get a single bed in you’d be taking up more nearly two-thirds of the floor space. If you are right, I think this is what we might have called, in the old days, a cupboard. It may be up to your landord to define a bedroom as far as the DWP goes, but there are other legal restraints on what landlords are allowed to do. The minimum size of any room for any landlord under public health legislation is 50 sq ft, and if your landlord is trying to let anything less than that as a bedroom (and charging you for it) they’re open to a legal challenge, not about the bedroom tax but about over-charging and breach of public health legislation. Take this to a local law centre or CAB; your council’s own public health officers may have something to say about it too.

      • Michelle Gledhill

        I contacted you regarding bedroom tax 27th Nov 2014. I wrote a letter to my local council regarding bedroom tax. This is a reply they sent me.
        Be able to fit a single bed in 1900mm x 915mm & have space to walk down most or all of one long side of it. Have an opening window.
        Be able to srand upright in part of the room.
        Have an ele tric switch from in the room.
        Have at least one electrical socket.
        If i appeal against their decision. Do we have a case ?

        • Paul Spicker

          Your previous note said that the room was 8 x 8.5, or 69 square foot. I explained then that there had been further cases; the most important issue in the cases is whether the room is actually used as a bedroom. Your case isn’t certain, but it’s arguable. There have been a shedload of legal cases, which you’ll find referred to here. The Liverpool case here supports the interpretation I put on the rules in my blog – that a ‘bedroom’ has to be big enough for one adult or two children – As things stand, I believe that all legal cases on room size have been stayed pending an Upper Tribunal decision: see here.

          I need to repeat that the rules in this case are about what the landlord refers back to the DWP. This is about your landlord being unreasonable, not about the bedroom tax rules. By its own account, your landlord is letting out a room which is not big enough to be a bedroom according to the Housing Act and charging you for it. Go to Public Health. I used to work with public health officers; they would have wrapped this one up within a couple of hours.

    • Paul Spicker

      You’ll have seen that I’ve added a special extra note on 12th December; a new legal case has thrown all of this up in the air. The new rules are (a) that it is not up to the landlord to decide and (b) there must be an inspection of the room, without which no imposition of the bedroom tax is lawful. Follow the link, look at the new rules, and make a decision following from that.

      Apart from that, everyone should know about public health rules – this is a long standing, activist branch of local government, with a tradition stretching back a good 150 years, and the rules about overcrowding date from the 1930s. I work in Scotland, but in England the responsibility has been transferred back to local councils – see e.g. http://www.londoncouncils.gov.uk/policylobbying/healthadultservices/publichealth/ .

  5. amybentley

    If I buy my home with 2 rooms upstairs measuring 5.8 sq ft and 5.9 sq ft as a 3 bedroomed property what position would I be in from a trading standards position? What would be a legal definition regarding these rooms from the selling or buying prospective?

    • Paul Spicker

      Your measurements must be mis-typed, but if you meant to write 58 and 59 square foot then all I can say is that this property is not suitable for three adults. There have been problems in the advertising of certain properties, because some properties have been advertised that are unfit for human habitation, but my main concern is with the violation of public health standards, and that wouldn’t apply in this case.

  6. amybentley

    Apologies the rooms are 58.4 and 59.8.Plus a double room.enviromental health said 3.05 persons could occupy my home.

  7. kirsty

    Just after some quick advice really if possible? our 3 bed LA house bedrooms measuring 8.2ft x 10.4ft and this is the middle size bedroom that i currently have my tw0 youngest in there but am having lots of trouble getting a definitive legal room size from my LA. We have been assessed as overcrowded but allocations say we are not our lg is 51/2 and sleeps in a toddler bed as we cant fit a bed in for her. Is this room size acceptable for 2 children (other room is smaller and mine and hubbys room is 2ft bigger) Thank you

    • Paul Spicker

      There are three different standards here. The first is for the bedroom tax, but it doesn’t sound as if that’s your issue. The second is for public health rules, and a single room does pass for two young children under those rules. It’s unlikely that the whole house would be considered overcrowded even if a bedroom is. The third test is for allocations policy. Most local authorities have far more two and three bedroom properties than anything else, and while they’d like to have four bedroom houses to allocate to people with larger families there just aren’t enough socially rented properties to do it. You can ask about a transfer but the properties that come up most often are the ones in the poorer areas – that’s because people will carry on living in larger houses in good areas after their first child moves on. If you like where you are, you may need to make do with bunk beds, moving family members about or even using a downstairs room to sleep. You might have a long wait – and no council can tell you how long, because that always depends on what other people do.

  8. claire

    hi can you help I have a 3 bed h/a house the smallest bedroom is 8ft 11in x 6ft 7 in. I have a daughter of 15 and the other is 12 I have had a letter from council saying I have to pay for a room as I’m under occupied does this sound right please

    • Paul Spicker

      You have a strong case. No decision can be made without a visit, but the measurements you have given me work out to a floor area of 58.7 square foot. The most important part of the posts is in the second paragraph: a room “…should be capable of accommodating a single adult bed, a bedside table and somewhere to store clothes … , as well as providing space for dressing and undressing.” Your room is 90% of the minimum size.

      Unfortunately the Upper Tribunal’s judgment has not yet been published, and without the full text of the judgment this cannot be treated as certain – there may be further rules and qualifications that I don’t know about. You should go to a Law Centre, Welfare Rights Centre or Citizens Advice Bureau to get support with this.

  9. Alan Parker

    What about the updated Scotland housing act which also states for natural light purposes a room window must be at least 1 / 20th of the floor space ! Notwithstanding my own 19 year old daughters room is about 32 square feet with a window of about 4 square feet !

    Should landlords not be complying with the legislation when offering these homes as they are offered as two bedroom flats when in fact they are 1 bedroom flats ? Plus are they then not illegally collecting housing benefit on that flat ?

    The legislation speaks of assessments for social landlords technical advisers and local authorities, do they not have a duty of care to advise and offer homes in compliance with legislation ?

    This is worth a read

    http://www.gov.scot/Publications/2009/03/25154751/2

    • Paul Spicker

      Scotland does not have the bedroom tax, and besides the rent charged in social housing does not (unlike the rules in England) actually depend on the number of rooms being let.

      There’s an important point here, distinct from that rule, which concerns the enforcement of public health laws. Many older Scottish properties have box rooms and robing rooms, with no windows but with borrowed light. The properties are not unfit to be occupied, but there is a limit on how many people can live there.

      Fifteen years ago, the state of private renting in Scotland was a national scandal. There have been important advances since the registration of landlords, and the quality of private rented housing has greatly improved, but there’s more to be done. The standards of public health legislation are very dated, and it’s difficult to enforce the standards – rules for Houses in Multiple Occupation and bedsits are much more enforceable. There’s more to be done.

      • Alan Parker

        Thanks for the response . No doubt more to be done but should social landlords not be complying with legislation when offering new tenants homes ?

        As it stands my home fails various sections in the housing act and if they have assessors, they have obviously ignored the legislation and at the time I was not aware of the law , should they not be honest with prospective new tenants and told me that a tree blocking out light is against the new legislative law ?

        I won a case at the SPSO on section 6.5 of the housing act and was told ( minus any consultation by the SPSO ) as it was not the Housings fault I could do nothing , even though the housing could do upgrades to alleviate the problem !. What if an act of god fails a home , do I get god to to remove the cause ?

        As an example legally a room is not a room in Scotland for natural light purposes if the window is less than 1/20th of the floor space ! My window with frame is 1.3338 square metres and 0.8265 glass only as that is only part that allows light and the floor space is 9.9858 square metres , which although not a mathematician I feel falls way short ! I even have a letter from the Scottish ministers office proving this !

        The biggest problem in my mind especially in the social housing sector is that they are there own judge and jury ! Assessments should be done by a central government office and not the social landlords !

        Thanks in advance

  10. Samantha Williamson

    Hi I’m really looking for some help here I have a 3 bed council house in Hastings I have my 13ye old sharing with my 2year old both girls my 19 year old is in a single room that fits a single bed wedged in too the room ( there is a set of cupboards going through the room which on the other side is part of the slop going down the main stir case of the house ) I’ve had someone round they said the cupboards cannot be removed due too stair case other side she has enough room too get out of bed an stand too get dressed no draws fit in there literally an Otoman box at the end of her bed. What do I do too challenge them trying too charge my daughter 36 pounds a week for this room??? I don’t know where too start who I contact ?? I did go citizens advice they told me there is no law in place for apposiing bedroom tax ?? Really at a total loss what too do the room is ridiculously small.
    Many thanks Sam

    • Paul Spicker

      Even without the room sizes, what you’ve described doesn’t seem to imply liability for the bedroom tax – you have a three bedroom house and a family that needs three bedrooms. What I think has happened here is about another rule altogether: the bit about ‘charging your daughter’ suggests to me that it’s about a ‘non-dependent deduction’, not about the bedroom tax. When family members come of age, they have to claim benefits in their own right rather than living on yours, and part of your benefit will be docked. However, if your daughter is on a low income, even if she’s working, she might be entitled to Housing Benefit to cover her housing costs, too. You do need to get advice about that. I think the CAB volunteer might have been trying to tell you this isn’t about bedroom tax, not that there’s no law. Get to an advice centre with your daughter, and see what you can do about income. That won’t help with the room size, I fear.

      • Samantha Williamson

        Hi thank you for replying too that. She’s currently in full time college An I have now got the paper work for them so for now she is exempt but she’s moving off too uni next year so what do I do then as I will be paying the bedroom tax for that room ? Even tho my other daughters will be 3 an 14 at that point they are still expected too share untill she’s 16. Do I ask too get the floor measured by my housing association or do I go too housing benefit as that room will fit a toddler bed for my youngest it has mould on the walls where it is so small with a standard size bed in the room.
        Thank you for this advice

        • Paul Spicker

          That’s right. You can check the earlier postings for the rules about bedroom size, but it’s likely that the rules will be different again when you get that far. Good luck with it.

          • Samantha

            Hi just an update really I did challenge the council regarding that box room An my housing association An they both said as I signed a tenancy ( tho they told me on viewing the stairs going through the box room would be gone , An I didn’t see the house again untill I signed the tenancy An got the keys ) that basically I signed as a 3 bedroom “An shouldn’t go there “as won’t get me anywhere so I have just left it there now.

  11. Sarah Jac

    Hi Paul,
    Can you advise me. I live in a 2 bedroom flat with children aged 1 and 9 of opposite sex.
    The smallest room is 67sq foot and the larger room is 81 sq foot. Currently the children are in the lare room and im in the small room.
    Are we overcrowded, as I filled in a council application for future housing as my children grow, but im not even allowed to register onto them as im classed as adequately housed.
    So im assuming I can sleep in the ‘living room’.
    Im also assuming I will always be adequately housed in this small flat so deciding whether to argue this or just move somewhere else.

    • Paul Spicker

      This doesn’t have to do directly with the ‘bedroom tax’ or housing benefit – it’s mainly about whether you should be able to apply for social housing. You’re not likely to be ‘legally’ overcrowded, because the laws date back to the 1930s and they’re very restrictive. I’m surprised, however, that you’re not being allowed even to register – the registers are the main indicator that councils have of housing need and if they don’t allow an application they won’t have the information.

      Many councils and housing associations are now using common registers. This is different from area to area, but the history of social housing means that there are usually many more three-bedroom properties than two-bedroom. If a local authority sticks rigidly to the 1935 rules, your youngest child won’t have been counted until reaching the age of 1 and your older child won’t need to be separated until the age of 10; but most social landlords understand full well that any tenancy is going to last long enough to put you over the line, and in most of the country you’d now be registered without blinking as waiting for a three-bedroom property. If there’s a Common Housing Register, you should apply again. If there’s not, go to local housing associations and register with them.

      That’s not, unfortunately, any guarantee of rehousing. The main thing that determines whether anyone gets a house is whether there are any houses coming available. The next thing after that will be for the landlords to meet their legal duties, such as housing homeless families. That might mean you have a long wait, and it will depend on who else is waiting, where the housing is, and where you’re ready to go. Ask; the more information you have, the better your chances.

      As ever, I’d advise you to go to a local advice agency – they will know things about your locality I can’t possibly know.

      • amybentley

        So why are the council and housing association properties allowed, with the help of the housing benefit system charging thousands of tennants with rooms under 70sq ft bedroom tax? First tier and upper tribunals are confirming their legality to do this.I have two rooms under 60sq ft,if I tried to buy the property would my surveyer or trading standards opinions count?

        • Paul Spicker

          The level of rent depends on other things besides the number of bedrooms, such as the location, the neighbourhood, the facilities in the property and common areas. A box room clearly has a value to an occupant even if it’s not a bedroom.
          It would be perfectly legal to charge tenants for many other things – for example, many councils charge tenants for maintenance and street furniture in the surrounding area, which other landlords don’t.

          However, the main single determinant is the cost of other rented property. Social renting in England has had rents deliberately increased over a period of years in a futile attempt to catch up the price of private renting. Landlords in England (we have different rules in Scotland) are charging tenants because central government has made them do it. That’s the main reason why the public cost of housing benefit has soared.

  12. dave197t7

    Hi the 3rd bedroom in my rented property is only big enough for a single bed nothing else! you can walk along side it just & the door opens outwards (tv is on the wall) and the wardrobe for this room is a converted cupboard in the hallway .. Is this allowed?

    • Paul Spicker

      You could be asking two things. Are people allowed to charge rent for box rooms? Of course, if it’s part of a three bedroomed house rather than a separate let. Does it count for the bedroom tax? That depends on the size.

  13. Sarah jac

    Hi.
    I am back. I tried to register but they said I’m adequately housed and until my oldest child is 10 before I can be allowed on their list. And it’s up to 10 years wait they said.
    This is Poole council.
    So I’m really confused because if I wait till he is 10 then I will be in need of 1 extra bedroom. But by that I realistically won’t be housed by them. And as there is a housing crisis down here it now seems I cannot even private rent as landlords are not even accepting part housing benefits.
    So I think they want my one year old to have the 67sq foot room and my soon to be 10 year old the 81sq foot room and myself in the living room.
    The housing associations is aparntly all under the same scheme and they call it all Poole partnership. So anyone from all association/council can bid on the same list.

  14. Katie

    Hi hope you could help me to please? I’ve read through all everyone’s questions and I just wanted you’re opinion on where I would stand with this. I’ve just been given a direct offer from my local housing they are claiming it’s adequate for my family. I have a 11 year old and 2 year old both girls. The big bedroom is 6m long by 3.40m wide and small room is 2m by 3.66m long. I can barely get a single in there with not much else or just a double bed with nothing else, the door opens inwards. Is this classed as a adult bedroom or is it suitable for a adult? Could it be suitable for two children? I think it’s 72 square foot (my maths isn’t great sorry) which is just boredline what a bedroom is for a small child.
    I’m unsure if I apppeal I would have a chance of challenging it.
    thankyou for you time

    • Paul Spicker

      The second bedroom is a single room, nearly 79 sq ft by my reckoning. The assumption they’re making is that two girls can share. It is legal, and physically possible, for you to live with a double and a single room – possibly with you in the single (you don’t say whether you have a partner), or with the two girls in bunk beds – but either is very restrictive. There was a time when local authorities would have allocated a three-bedroomed property without question – that was most of the property they had to offer – but those days have gone. What I can’t really help you with is the decision whether or not to accept the offer now. Your decision has to depend on three other things: what other housing is available, whether you’re relying on Housing Benefit and if you are whether your ‘local housing’ is in England (the rules are different here in Scotland). All I can suggest is that you go to a local adviser, such as a CAB, or back to the local housing provider, and ask what’s possible in your area.

Leave a Reply