Challenging bedroom tax decision

Yes, you can challenge the bedroom tax (officially known as the removal of the spare room subsidy or under-occupancy charge) if you believe it has been applied incorrectly to your housing benefit or the housing element of Universal Credit.

Legal background:

The bedroom tax reduces housing benefit or the housing element of Universal Credit by 14 per cent for one spare bedroom and 25 per cent for two or more spare bedrooms. It applies to working-age social housing tenants. The rules on who counts as an occupier, which rooms count as bedrooms, and which exemptions apply are set out in the Housing Benefit Regulations 2006 (as amended) and the Universal Credit Regulations 2013.

Common grounds for challenge:

1. A room has been wrongly classified as a bedroom. There is no statutory definition of "bedroom" in the regulations. Case law, particularly the Court of Appeal decision in Burnip v Birmingham City Council and related cases, and later the Supreme Court in R (Carmichael and Rourke) v Secretary of State for Work and Pensions [2016] UKSC 58, has confirmed that the size, nature, and use of the room can be relevant. Very small rooms, rooms that cannot practically be used as bedrooms, or rooms needed for other purposes may not count.

2. A disability-related need for an extra room. If you or a household member needs an overnight carer, or a room is needed for medical equipment, or there are other disability-related reasons why the extra room is necessary, you may have grounds to argue the deduction should not apply or that a Discretionary Housing Payment should cover the shortfall.

3. The number of permitted occupiers has been calculated incorrectly. The rules set out who can share a room and who counts as a separate occupier. Children under 10 of any sex are expected to share. Children aged 10 to 15 of the same sex are expected to share. If the council or DWP has miscounted, you have grounds for challenge.

4. You are exempt but the exemption has not been applied. Certain categories are exempt, for example if you have reached state pension credit qualifying age, or you are in specified supported or temporary accommodation.

5. Human rights or discrimination arguments. The Supreme Court in Carmichael confirmed that the bedroom tax can breach Article 14 of the European Convention on Human Rights (read with Article 8 or Article 1 of Protocol 1) in specific cases, particularly involving disability, where no justification exists for the discriminatory impact.

How to challenge:

If you are on housing benefit:

1. Ask your local authority for a written explanation of how the decision was reached and which rooms were counted.
2. Request a revision (reconsideration) of the decision within one month of the date on the decision letter.
3. If the revision is refused or you remain dissatisfied, appeal to the First-tier Tribunal (Social Entitlements Chamber) within one month of the revised decision. The tribunal is independent and free to use.

If you are on Universal Credit:

1. Ask for a mandatory reconsideration from the DWP within one month of the decision.
2. If that is unsuccessful, appeal to the First-tier Tribunal (Social Entitlements Chamber) within one month of the mandatory reconsideration notice.

Practical steps:

1. Gather evidence about the rooms in question, including measurements, photographs, and any evidence of their actual use.
2. If the challenge is disability-related, obtain medical evidence or a letter from a healthcare professional explaining why the room is needed.
3. In the meantime, apply for a Discretionary Housing Payment from your local authority to cover the shortfall while the challenge proceeds. This does not affect your right to challenge the underlying decision.
4. Consider contacting a local welfare rights adviser or Citizens Advice for help with the appeal. Many areas have specialist housing benefit advisers who handle these cases regularly.

Important timing point:

You must act within the time limits. For housing benefit, request a revision within one month. For Universal Credit, request mandatory reconsideration within one month. Late applications can sometimes be accepted up to 13 months in exceptional circumstances, but this is not guaranteed.

If you can tell me more about your specific situation, such as why you think the deduction has been wrongly applied, I can give you more targeted guidance on the strength of your position and the best route forward.