The House of Lords proposed a number of changes to this but they were dismissed when the proposals came back to the House of Commons. A concession was made that people in supported "exempt" accommodation would not be adversely affected by this.
Clarification on this has not yet been given but at the Learning Disability Alliance Scotland we are worried that this concession is much less than it at first appears.
The Current Position
The only exemptions included in the legislation are
- Where a person requires a spare room for a non- resident carer to provide overnight care ( they receive the mid or high rate CARE component of Disability Living Allowance AND need overnight care AND a non-household member uses a bedroom to stay overnight to provide care)
- The recently bereaved (protection for 52 weeks)
- Adult children in the Armed Forces will be treated as continuing to live at home when deployed on operations
- In addition, local councils have been advised to allow an extra bedroom for children who are unable to share because of their severe disabilities
The reductions in housing benefit are
•For a single bedroom under occupation14%
•For two bedrooms under occupation25%
There will be some limited Discretionary Housing Payment (DHP) to help make up the gap but this is short term funding –
normally for a maximum of 6 months
The priorities for DHP payments will be
- Disabled people who houses have had significant physical adaptations
- Approved foster carers will be allowed an additional room so long as they have fostered a child, or become an approved foster carer in the last 12 months.
- Everybody else will be on a first come first served out a limited pot.
The suggestion from Lord Freud is that people who are affected manage this by
•Earning additional income through work (up to disregard)
•Taking in a lodger (first £20 is disregarded)
•Moving to private rented accommodation
•Moving to alternative social housing
This change comes in from April 2013 and tenants will be responsible for notifying their housing circumstances.
The new concession
In a response to Tom Clarke MP, Steve Webb said, “The housing benefit rules already recognise the extra costs of providing supported housing. As we said in the consultation paper, these reforms are not a cost cutting exercise but look to target help better at where it is needed most.”
However this is likely to be a much narrower definition than it seems. The Housing Benefit (Amendment) Regulations 2012 explanatory note states that
1.There are a number of social sector tenancies/licenses also exempt from application of size criteria:
•‘Exempt’ supported accommodation (s5(4)(d))
This is a technical type of tenancy where the landlord is a “not for profit” (which can include local authorities in England) and is “responsible” for the care of the “vulnerable” tenant. Normally the landlord would provide the care or some of the care directly but they can contract someone else to provide it as long as they remain in charge. It is a situation where the rents are normally higher than would be allowed but following a Rent Officer Determination the additional Housing Benefit is split between central government and the local authority.
Central Govt paid 60% of the additional rent meaning local authorities sometimes saw this as a way of increasing income if they were going to pay for the extra costs of supported accommodation anyway.
A third party let to a voluntary organisation by the landlord would exclude tenancies from this category. The Landlord must maintain some responsibility for the provision of support to their tenants.
As a result most of the people who live in “supported accommodation” are not covered by this exemption because
1.They have no support from their landlord – it comes from a distinct third party such as a voluntary organisation.
2.They have an Individual Budget and are personally responsible for their own support.
3.The RSL has never sought a Rent Officer Determination (ROD) so the property has never actually been entered into the Local Authority records as ‘Exempt’ supported accommodation.
A recent research report for the Department of Work and Pensions called ‘Exempt’ and supported accommodation by Michelle Boath, Eleanor Baker and Helen Wilkinson estimated that there were 170,000 people in in ‘Exempt’ supported accommodation.
Of that number 130,000 were tenants of Registered Social Landlords who could be treated as ‘exempt’ but were unlikely to be treated as such officially as they were not yet formally registered.
There are three other proposals for possible exemptions and we need to stress the word "possible" none of these have yet been fully accepted.
Size of Bedroom - There is a suggestion that bedrooms of less than 70 square feet will not count as a bedroom
Storage - Where a bedroom is used as storage for items such as wheelchairs, toileting and bathing equipment, local authorities may choose to classify it as storage.
Local Authority Discretion - The under occupancy criteria depends on what is said in a lease or letting contract. If there is agreement between the social landlord, the local authority and the tenant, the lease may be rewritten to reduce the number of rooms in the house, the remainder being classed as storage or boxrooms etc. This lease would then be accepted by the local authority for housing benefit purposes and the under occupancy conditions would have been reduced.
The Burnip Case
On the 15th of May 2012, the Court of Appeal ruled housing benefit rules for private rented tenants that discriminate against disabled people are unlawful.
Public law experts at Irwin Mitchell, representing the lead case, said DWP breached the British Human Rights law by not allowing their housing benefit claims to be treated differently to those of non-disabled people, which would have given them the extra provision needed.
The Court of Appeal today found that the Housing Benefit Regulations 2006, which restrict benefit according to property size, discriminate against disabled people because they do not allow an additional room to be paid for where two children cannot share because of disabilities.
The first result was anticipated by the Government during the course of the Appeal process, and the local housing allowance rules on extra bedrooms were changed in April 2011. Extra LHA is now given to disabled people who need a bedroom for an overnight care worker and this has been incorporated into the proposed new changes listed above.
The second result about room sharing for children will require further changes in the new legislation.
How many will be affected
Figures from the Tenants Services Authority show there are 423,000 supported housing units in the UK.
This implies that 297,000 (UK figures) will not be covered by this exemption. Of course, not all of these people will be in a position of under occupation but many will.
The government estimates the 670,000 people will be affected by the bedroom tax.
We think this will have a significant impact on people with learning disabilities. We know that the first round of supported accommodation developed saw people move into 2 person flats which over the years have become single tenancies. Much of the new housing offered by social landlords is 2 bedroom – simply because that is much of the current housing stock.