Local Government and Housing Act 1985 defines ‘overcrowding’

Over and under-occupation is a complex issue, it needs to be defined on grounds of health and personal space, for education or study, respite, quality of life and to avoid anti-social principles. Defining a standard for sleeping space should set parameters for personal space, respect and dignity of others and is therefore critical to the bedroom tax debate.

It is even more acute when people require reasonable space for peace and quite enjoyment of sleep. People live in complex situations. A young person who is disabled or has mental health disability for example can have a serious and damaging impact on someone else having to share sleeping space. Not to define ‘space’ and the ‘standard of a sleeping space’ is to deny rights to an individual which are critical to their physical and mental development.

This was recognised to some degree by the Judgement by of the Court of Appeal in the Burnip v Birmingham City Council and Anor [2012] EWCA Civ 629 (15 May 2012). That ruling stated there is a ‘prima facie’ case of discrimination for purposes of Article 14 of the European Convention on Human rights (which the Tory Government has argued we should withdraw from), and that the Secretary of State had failed to establish objective and reasonable justification for the discriminatory effect of the statutory criteria. While the government is seeking to challenge that decision, they have conceded that a children with severe disabilities should not be required to share a bedroom with non disabled child. This could have knock-on effects to people of all ages who are disabled and sharing a room.

Sleep disorders can range from, narcolepsy, sleep deprivation, restless legs syndrome, sleep walking, these conditions do not bind themselves to age or gender. Some sleep disorders are serious enough to interfere with normal physical, mental and emotional functioning that would have serious determent on the person sharing a sleeping space and indeed those caring or responsible for others in the family. There are also circumstances where sleeping accommodation would not be suitable, for example where there may be risks of carbon monoxide poisoning.

That is why Part 10 of the Local Government Act 1985, set out a definition of ‘overcrowding’ this is based on a specified ‘room standard’ and ‘space standard’ of that room. A bedroom is also defined as someone where someone ‘sleeps’ in ‘sleeping accommodation’, clearly having a bed and somewhere to store personal items and clothing. Nowadays, a bedroom is also a place to study and to reflect in quiet. Clearly a ‘kitchen’ is not sleeping accommodation neither is a ‘living room’ or a ‘dinning room’. Having a defined ‘measure’ is critical in making an assessment of a families accommodation needs and for allocation of properties in a fair and balanced manner.

The UK government has stated that ‘it is up to landlords to define the size of accommodation rented for under-occupation purposes’. The landlord must therefore have some ‘measure’ by which it applies ‘consistent policy’ when determining whether or not the property is over or under-occupied for the purpose of the under-occupation rules in the Welfare Reform Act 2012 and for tenants to receive subsidy to pay rent.

The bedroom tax is about ‘overcrowding’, landlords should therefore observe the overcrowding rules and have a robust policy that stipulates what is and is not overcrowding. Under the Housing Act 1985, if a landlord forces tenants to occupy bedrooms which do not meet the ‘standard’ they are forcing tenants to commit a ‘summary offence’.

If a landlord does not measure the bedrooms commonly used as sleeping accommodation and recommends that the property is under-occupied to the DWP, then it will surely receive a challenge from the tenant if housing benefit is lost as a consequence. The Welsh Tenants are calling on the social housing sector to observe and practice the definition.

The consumer protection issue – Clearly landlords and other service providers cannot state something is X when it in fact is Y. Thankfully consumer protection legislation does not allow service providers to state something which clearly it is not. If the tenancy agreement states that the rented accommodation is a 3 bedroom property and it subsequently emerges that the bedroom is in fact according to the ‘size’ criteria as outlined in the 1985 Act is in fact a 2.5 bedroom property, then surely the tenant will have recourse to the courts, as the property has been mis-sold under the consumer protection legislation.

There are probably many landlords who have, under ‘regulation’ determined that properties are 1,2,3 or 4 bedroom properties wit specified numbers of persons, and have set the rents according to the ‘benchmark rent’ criteria set out by the regulator, that is they have to charge a specific rent for a specific definition of size of property. Clearly they would not knowingly schedule a 2.5 bedroom as a 3 bedroom property thereby overcharging rent. 

Further the Welfare Reform suggest ‘whole’ definitions of rooms not ½’s, therefore if a bedroom is measured as ½ a bedroom then it cannot be considered as a whole room being under-occupied.

The relevant section is as follows.

Part 10 of the Housing Act 1985

324 Definition of overcrowding.

A dwelling is overcrowded for the purposes of this Part when the number of persons sleeping in the dwelling is such as to contravene—

(a) the standard specified in section 325 (the room standard), or

(b) the standard specified in section 326 (the space standard).


325 The room standard.

(1) The room standard is contravened when the number of persons sleeping in a dwelling and the number of rooms available as sleeping accommodation is such that two persons of opposite sexes who are not living together as husband and wife must sleep in the same room.

 (2) For this purpose—

(a) children under the age of ten shall be left out of account, and

(b) a room is available as sleeping accommodation if it is of a type normally used in the locality either as a bedroom or as a living room.

 326 The space standard.

(1) The space standard is contravened when the number of persons sleeping in a dwelling is in excess of the permitted number, having regard to the number and floor area of the rooms of the dwelling available as sleeping accommodation.

 (2) For this purpose—

(a)no account shall be taken of a child under the age of one and a child aged one or over but under ten shall be reckoned as one-half of a unit, and

(b)a room is available as sleeping accommodation if it is of a type normally used in the locality either as a living room or as a bedroom.

 (3) The permitted number of persons in relation to a dwelling is whichever is the less of—

(a)the number specified in Table I in relation to the number of rooms in the dwelling available as sleeping accommodation, and

(b) the aggregate for all such rooms in the dwelling of the numbers specified in column 2 of Table II in relation to each room of the floor area specified in column 1

 No account shall be taken for the purposes of either Table of a room having a floor area of less than 50 square feet. [Welsh Tenants] i.e. not a bedroom but a box room/cot room if less than 50sqft.

Table I

Number of rooms

Number of persons








7 ½

5 or more

2 for each room


Table II

Floor area of room

Number of persons

110 sq.ft or more


90 sq.ft. or more but less than 110 sq.ft.

1 ½

70 sq.ft. or more but less than 90 sq.ft.


50 sq.ft. or more but less than 70 sq.ft.


 (4) The Secretary of State may by regulations prescribe the manner in which the floor area of a room is to be ascertained for the purposes of this section; and the regulations may provide for the exclusion from computation, or the bringing into computation at a reduced figure, of floor space in a part of the room which is of less than a specified height not exceeding eight feet.

Section four above provides for the secretary of state (or in Wales’ case, the Housing minister as these powers are devolved to welsh Ministers.

(5) Regulations under subsection (4) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(6) A certificate of the local housing authority stating the number and floor areas of the rooms in a dwelling, and that the floor areas have been ascertained in the prescribed manner, is prima facie evidence for the purposes of legal proceedings of the facts stated in it.

Responsibility of occupier

327 Penalty for occupier causing or permitting overcrowding.

(1) The occupier of a dwelling who causes or permits it to be overcrowded commits a summary offence, subject to subsection (2).

 (2) The occupier is not guilty of an offence—

(a) if the overcrowding is within the exceptions specified in section 328 or 329 (children attaining age of 10 or visiting relatives), or

(b) by reason of anything done under the authority of, and in accordance with any conditions specified in, a licence granted by the local housing authority under section 330.

(3) A person committing an offence under this section is liable on conviction to a fine not exceeding [F1 level 2] on the standard scale and to a further fine not exceeding [F2 one-tenth of the amount corresponding to that level] in respect of every day subsequent to the date on which he is convicted on which the offence continues.

Debates on the Welfare Reform Up-Rating Bill

The coalition government in Westminster successfully defeated amendments to the Welfare Reform Up-Rating Bill this evening, despite the passionate debates by all sections who oppose it. The bill now proceeds to the House of Lords committee stages, after being rushed through parliament in quick time against criticism that this was done to avoid public scrutiny.

The Up-Rating Bill basically caps any welfare payment rises households in most benefits to 1% for 2014-15 and 2015-16. With a 1% cap increase already planned for in 2013-14, it commits the UK government to a 3 year cap on welfare, breaking a tradition to ensure that welfare benefits keep pace with the real costs of living for the most vulnerable in society including children. And no doubt! teasing the Labour party into debates about repealing the measure, during the election of 2016.

The main amendments were registered by the Labour Party who sought to have the 1% increase withdrawn, the Green Party, Caroline Lucas who made an impassioned plea for reinstating the link to the retail prices index (RPI), and of course a handful of Liberal Democrat MPs who suggested that any increases be linked to earnings, while raising concerns about the uncertainty of the effective future forecasting for the three years.

The bill impacts on both working and non-working people struggling on benefits and low wages. The effective cut in real terms estimated to be around 4% p.a. is a blow for common decency and compassion for people struggling in a very harsh economic climate and a punch in the belly of the poorest in our society at a time when the essentials of maintaining a roof over one’s head, keeping warm, clothed and fed, are rising dramatically. The measure plans to take another £3.5 billion out of the pockets of struggling people whom spend the majority of their income in local communities with the inevitable corresponding effect on local business and the very entrepreneurs that need support.

Much was made of Child Poverty Action who cite that more than 200,000 children will be forced into poverty by this single measure alone, with the accumulated impacts of wider Welfare Reform effecting 1million children by 2016, breaking a coalition commitment to end child poverty. However many commentators believe the figure could be even higher and rather than ending child poverty, its policies are increasing it.

MPs opposing the bill made much of the government’s fur coat handout in the summer (my analogy) to the richest 8,000 who received a £2,000 per week tax break, comparing the harsh cost the poorest are paying to the richest that again succeeded in making a mockery of the Prime Minster’s specific stance that “we are in this together”.

In the oppinion of tenants rents in Wales have risen quicker than their incomes, with a 45% increase for local authorities between 2003-4 and 2010-11, while housing association rents have increased by 40% between the same period. The welfare cap will of course impact on housing benefit and the future ‘housing credit’ awarded under Universal Credit. With rents being set for 2013-14 at 4.6% to support rent convergence and 3.6% for HA’s in Wales, the shortfall will be of concern for tenants and indeed landlords in Wales.

If you think the Labour Party (UK) would do better, think again! as any future respite appeared to have been quickly pounced on by Labour head office when shadow welfare minister Stephen Timms seemed to suggest that “we [Labour] would increase future welfare in line with inflation, as it always was in the past…” but the labour party has responded stating he was referring to what the policy was, not what the policy is. This seems to indicate they would not commit to a return to RPI if they were successful in the 2015 general election. Either way, it would appear that at least today! we cannot rely on the current mainstream party’s to redress the situation. Let’s hope that there is more opposition in the House of Lords as it proceeds to committee stage there.

On a date that is commonly referred as ‘Blue Monday’ due to the depression that many people feel as they receive their credit card bills following Christmas, for welfare claimants, it will be remembered as ‘Grey Monday’ where any faint light of compassion was finally snuffed out in parliament by the coalition government.

Liam Byrne, shadow secretary for works and pensions summed up the mood of MPs opposing the bill, and the manner in which it has been rushed through, when he stated “Never has so much been taken, from so many, so fast”.