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How Much: Size Criteria - Changes from April 2017

Following the Supreme Court's Judgement last year on a number of Bedroom Tax cases the Size Criteria Regulations have been amended, with effect from April 1st 2017, to take account of the Supreme Court's decision on the two claimants that were successful - the Rutherfords and the Carmichaels.
The Housing Benefit and Universal Credit (Miscellaneous Amendments) Regulations 2017: here  
The guidance can be found in the form of A3/2017.


So what's changed?


Bedroom for non-household carer who stays overnight to look after a child or other person in the household

The Rutherford case.

The Size Criteria rules changed on 1st April 2017 to allow a bedroom to be allocated to a carer where: 

  • A disabled dependent child or other disabled person living in the household requires, and receives, overnight care from a non-resident carer (or group of carers) on a regular basis, and
  • A spare bedroom is available for the carer (or team of carers) and an extra bedroom has not already been provided for a non-resident overnight carer (or team of carers) in the same household  - ie for another disabled person, and
  • The disabled child or other disabled person must* be in receipt of:

Middle or high rate care component of Disability Living Allowance, or

Daily living component Personal Independence Payment, or

Attendance Allowance, or

Armed Forces Independence Payment.

(For more information on these benefits click on DLA, PIP, AA, AFIP)

*Do they have to be on a disability benefit?
A3/2017 states that  “there may be a small number of claims where the disabled child or .......adult is not in receipt of one of these benefits but has overnight care. . .LA’s have discretion to decide what alternative evidence, if any, is needed to demonstrate that overnight care is required. . . .for example, a letter provided by the claimant from a GP or other medical professional”.

Is it just for dependent children and non-dependent adults?

Although the Guidance (A3/2017) talks about disabled children and non-dependant adults, the Regulations talk about dependent children and "a person (other than the tenant or the tenant's partner) who occupies the dwelling as their home". So this would be any non-dependant ie not just non-dependant children (ie would include parents, cousins, friends etc), but could also include lodgers, and perhaps even children of non-dependants.


Bedroom each for couples who cannot sleep in same room due to disability

- This was the Carmichael case. Mrs. Carmichael had to use a hospital bed and there was no room in the bedroom for Mr. Carmichael who slept in a separate bedroom.

The Size Criteria rules changed from 1st April 2017 to allow a couple a bedroom each where:  

  • The HB Office is happy that it is unreasonable for one member of a couple to share a bedroom with their partner because of either partner’s disabilities^ (this could be the claimant and their partner, or it could be a non-dependant couple etc living in the property), and
  • The disabled member of the couple is in receipt of 

Middle or high rate care component of Disability Living Allowance, or

Daily living component Personal Independence Payment, or

Attendance Allowance at the higher rate~, or

Armed Forces Independence Payment.

(For more information on these benefits click on PIPAAAFIP)

~The Regulations specifically state that for Attendance Allowance it must be the higher rate (even though they also state middle rate DLA care which is sometimes seen as the equivalent of low rate AA - both can be awarded where the claimant can show they have day or night time needs).

^This could be because they would be unreasonably disturbed if they had to sleep in the same bedroom or it could be if the disabled member has to sleep in a specific bed that they cannot share with their partner, and there is insufficient room for two single beds in the bedroom.

Is it just for physical health problems?

A3/2017 only mentioned physical health problems and did not specifically give any guidance around claimants with mental health problems.  This, however, was at odds with the regulations that did not restrict to just physical health problems and A3/2017 was revised by the DWP (with an apology) in early April 2017 to reflect this.

Please see below for examples of how the changes might affect tenants in certain situations:

Examples

Example 1:

Nigel and Steve live in a 3 bedroom housing association property with their 12 year old son. Steve is claiming the daily living component of PIP. They are unable to share a bedroom due to Nigel needing a hoist meaning there is no room for a double bed/two single beds; however a 14% under occupancy reduction is currently being applied to their Housing Benefit.
Applying the new size criteria rules from 1st April 2017 means that Nigel and Steve will be allocated a bedroom each and they will be entitled to 3 bedrooms - ie one for Nigel, one for Steve and one for their son - and will therefore no longer be classed as under occupying their property. The 14% under occupancy charge will no longer apply and their Housing Benefit will be based on their full eligible rent.
.

Example 2:

Mary and Antoine live in a 3 bedroom housing association property with their son aged 4. Antoine gets the high rate care component of DLA – he has severe mental health problems meaning that he struggles to sleep at night and is continually getting out of bed which disturbs Mary. So Mary sleeps in a different bedroom. Currently a 14% under occupancy reduction is being applied to their Housing Benefit.
If the HB Office accept that due to his disabilities* it is not reasonable for Mary and Antoine to share a bedroom then they can allocate them each a bedroom - meaning that they will be deemed to need three bedrooms ie one for Mary, one for Antoine and one for their son  – the 14% under occupancy charge will no longer apply from 1st April 2017 and their Housing Benefit will be based on their full eligible rent
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*Note - in the HB Circular issued by the DWP it suggests that the disability has to be a physical one but this is not written in the Regulations.

Example 3:

Deborah lives in a 3 bedroom housing association rented property with her 22 year old severely disabled son who is in receipt of standard rate daily living PIP. Deborah’s sister comes to stay over-night on a regular basis to provide overnight care to give Deborah a break. At the moment she is only deemed to need 2 bedrooms and so her HB is reduced by a 14% reduction.
Applying the new size criteria rules from 1st April 2017 means that Deborah will be deemed to need 3 bedrooms - ie one for her, one for her son and one for her sister, as the additional bedroom is allowed for the overnight carer and there is a bedroom available that her sister stays in.
.

Example 4:

Yordanka and Silas live in a 4 bedroom housing association property with their 3 daughters age 4, 8 and 15. Their 8 year old daughter is severely disabled and is claiming DLA middle rate care component. Yordanka and Silas take it in turns to provide overnight care. Their HB is currently reduced by a 14% Bedroom Tax reduction as they are deemed to need three bedrooms.
Although their daughter needs and receives overnight care, as this is not being provided by a non-household carer there will be no change to the number of bedrooms they are deemed to need from 1st April 2017 and the 14% reduction will continue.
.

Example 5:

Zain and Lalita live in a 5 bedroom housing association property with their 13 year old daughter. Lalita is in receipt of enhanced daily living PIP and requires regular assistance during the night from a team of care workers – so Zain sleeps in another room to avoid being continually disturbed. Their daughter is claiming DLA – high rate care - she also requires overnight care – and Zain's parents often stay over to help out. They are currently deemed to need 3 bedrooms – one for Zain and Lalita, one for their daughter and one for Lalita’s overnight carers – so their HB is reduced by a 25% Bedroom Tax reduction.
From 1st April 2017, applying the new rules, they will be deemed to need 4 bedrooms – one for Lalita, one for Zain, one for their daughter and one for non-household overnight carers. Although they have two sets of carers: one for Lalita and one for their daughter, the new rules only allow one bedroom per household for overnight carers.
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Example 6:

Ahmed lives in a 3 bedroom privately rented property with his two sons aged 2 and 8, and his 10 year old daughter who is on the high rate care component of DLA. Social Services have arranged for a carer to stay overnight two nights a week to provide overnight care and give Ahmed a break.
From 1st April 2017, Ahmed gets his own room, his two sons can share a room and his daughter is entitled to her own room plus a room for her overnight carer; however it is only a 3 bedroom property so as there is no bedroom available for the overnight carer, the 3 bedroom LHA rate still applies. 
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