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.