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.

Count-down to the social housing bedroom tax

The Department of Works and Pensions (DWP) housing benefit under-occupation rule will commence from Monday 1st April 2013. The change means that if there are social housing tenants under pension credit age currently 61 and 6 months and rising roughly 1 month every 3 months thereafter) that are under-occupying their homes, they will see a reduction in housing benefit entitlement by 14% for one bedroom and 25% for two bedrooms or more. The housing benefit change is predicted to impact on more than 40,000 social tenants here in Wales.

There are currently 75,000 tenants in arrears with some 5,400 more than 13 weeks, meaning their security of tenure is under significant risk. Undoubtedly more of the 75,000 will move into the high risk zone as a consequence. The measure is set to save the DWP and treasury 27 million. In the context of 80 billion tax fraud each year, the figure is almost insignificant. Many feel that it’s not about saving money, the measure was introduced to force the working classes out of affluent areas of London and the south east and back into the suburbs.

In England, coupled with the localism bill and changes to homelessness legislation, local authorities will be able to divest their responsibility of keeping people in temporary accommodation (if qualified), and ‘post them’ to private rented sector outside their borough or county boundaries. No doubt many council and housing association properties will become available for the more deserving, as social landlords will take advantage of the newly acquired ability to charge up to 80% market rents. Thankfully, we will not see this here in Wales?

While some will be able to fund the extra cost of meeting the reduction in contribution towards their rents via taking in lodgers, charging their siblings more, trying to find overtime or extra fixed hours, the reality is, that more will find it an increasing burden that they cannot cope with. The single change on under-occupation that tenants refer to as the ‘bedroom tax’ may not in itself have had such a profound impact, but coupled with job losses or restricted hours, and a plethora of other welfare reforms, not to mention the increasing cost of living at the sharp end of localised economies, for many, the burden may be too great.

We will undoubtedly see a decline in security of tenure, as more seeking possession notices will be served upon families, as landlords seek to respond to their escalating rent arrears with no doubt significant pressures from lenders. Once any transitional support ends, Wales will see more people become homeless.

Tenants in Wales have worked tirelessly to raise the profile of the debate seeking answers to how we can best help to mitigate the impending disaster that will befall many working and non working families. The Welsh Tenants have worked with a range of partners and tenant representative groups to ensure that landlords, tenants and stakeholders are informed of the need to be proactive and find a range of solutions. Debt management support alone will not suffice, if you have limited and finite resources, they simply mean making tougher choices about ‘what you need’ and ‘what you need’.

Many can find more lasting solutions by downsizing, but there are a range of barriers in place that we need to overcome:
• changing the mindset of landlords in relation to allocations, a ‘voluntary priority move-on’ to lower cost accommodation for those impacted by the changes. Compensating tenants for downsizing is something we can positively do, to make better use of the existing stock, after all, many loyal tenants have lived for decades in social housing as good tenants, they are prepared to free up their family home if there is an incentive for doing so.
• wider collaboration with other housing associations to offer a range of services to those impacted.

• Landlords are actively considering ending the moratorium on the use of ground 8 mandatory eviction, a power landlords can use if you have a consistent pattern of rent arrears and are more than 8 weeks in arrears at the time the notice was served. The non use of ground 8 is a long-standing moral commitment social landlords pontificate on, this differentiated themselves from private rented sector. Will the housing association movement continue to honour this when their tenants are facing financially crippling times?
• Tenants should consider legal action against landlords that fail to provide social tenants with their ‘right to exchange’, if they have rent arrears (75,000). We should contest that. If a tenancy exists, then the landlord has a statutory duty to honour the rights and obligations of that tenancy, just as the tenant has a continuing ‘right to repair’, they have a continuing ‘right to exchange’. Too many tenants have been denied this right at the convenience of the landlord.
• Tenants should consider contesting any DWP or landlord definition of what is indeed a ‘bedroom’. Properties have been let on a definition of bed space. A 3 bedroom 4 or 5 person dwelling let under a tenancy agreement cannot suddenly become a 3 bedroom 5 or 6 person dwelling. Particularly if the bedrooms do not meet the statutory defined space for a single bedroom as 110 Sqft as in House’s of Multiple Occupation regulations under the Local Government and Housing Act 2004. Many non-double bedrooms built under Tai Cymru’s pattern book are just 48 sq ft. It would be inhumane to put two 15 year olds studying in such a space. Yet the DWP guidance expects tenants to do just that. Many tenants in this situation are in fact barred from taking up the ‘lodging’ option as the room would not meet this size criteria, thereby denying those impacted to fair and equal consideration under the law to properties older and larger. The fire risk associated with such a decision would be of considerable concern to lenders. Insurance premiums are sure to rise considerably both for the landlord and the tenant. The Council of Mortgage Lenders doesn’t like the concept of re-designation (redefining the bedroom size of accommodation and thereby taking the hit themselves) because this would impact on the loan value, however they appear to be content that landlords considering changing properties termed ‘parlour properties’ (where they have two downstairs rooms) into four bedroom properties, by virtue that the room can now be let as a fourth bedroom or lodging.
• If 40,000 tenants decided to downsize to the private rented sector, then it would cost the DWP considerably more, as the rents chargeable for even one bedroom less are likely to be twice the housing benefit of a social housing property.
• Many tenants who have been accepted on the waiting list for a larger property are now having to be told they are suitably housed. Under what criteria? The regulations on size relate to the amount of housing benefit assistance one can claim, which has nothing whatsoever to do with the allocation of accommodation when let. Yet another opportunity for landlord litigation.
• Many landlords have failed to consult properly ‘as is their legal requirement’ when a change of housing management occurs. Particularly where there is a change to a tenancy agreement. Would every tenancy agreement have to be changed if suddenly the property is now defined as a different size than that originally allocated under the tenancy agreement?
• Many tenants may have been offered accommodation unsuitable for their needs (in terms of size) because hey are hard to let. Any tenant offered accommodation after the legislation was introduced would have a strong case against the landlord for being culpable in the accumulation of arrears as they have not advised the tenant appropriately. Could we see a raft of litigation on that basis post the introduction of the bedroom tax?
• What would happen if the Welsh government decided to take a tough stance on its lifetime home standards, and a raft of other legislation and define in statute (possibly building regulations) what is a suitably sized bedroom for a property, how would the DWP react then? Perhaps we need to think out of the box more and defeat this cruel and degrading measure.
• There are so many other potential challenges under the welfare reform act, that it could keep landlords and the DWP in the law courts for decades… we haven’t begun to tackle the vexed question of the restrictions on service charges and estate management and the impacts on the sustainability of social housing.

The sad point, is that the bedroom tax will hurt children more than adults, adults have the resilience to battle on in their childs interest. It is legislation against the child, not for the health and well-being of the child, which is a first in Britain’s long and proud democracy, the long-term impacts of which, are set to bare their scars for decades to come.