New Housing Benefit Regulations

28 March 2013

Read the draft regulations which govern how the size criteria, also known as the bedroom tax, will be applied.

The draft regulations have been laid before Parliament. They cover the introduction of the size criteria in the social rented sector and linking the uprating of Local Housing Allowance with CPI.

• Read the explanatory cover note by the Department of Work and Pensions (Word, opens in a new window)
• Read the draft regulations
• Read the guidance on the size criteria regulations

The Federation is seeking clarification on the definition of a bedroom and the exemption of supported and sheltered accommodation.

• Read our comments on the regulations (PDF, opens in a new window)

Clarification on pre-1989 social housing tenancies

Our interpretation of the draft regulations is that there will be no distinction between pre- and post-1989 social housing tenancies and that they will all, in principle, be subject to the size criteria. This will apply whether the landlord is a local authority or a registered provider of social housing, and whether or not the tenancy is subject to the 1977 Rent Act.

Given that these are tenancies of such long standing, it is likely that a high proportion of the tenants will be over women’s retirement age and thus not subject to the size criteria.

The complex wording of the draft regulation has led to considerable debate about its correct interpretation, and our initial reading was that some categories of pre-1989 tenancies would be excluded. We are sorry that this misreading may have added to confusion on the subject, and we are keen to put the record straight.

On the basis of our understanding of the regulation, there is no pre-1989 loophole here that needs to be closed.

‘Housing association tenancy’ is an expression that is given a specialised meaning by the Rent Act 1977. It covers tenancies granted by housing associations that are entitled to a fair rent but are not subject to the security of tenure granted to private sector tenants by the 1977 Act. However, a ‘housing association tenancy’ (in this specific sense) will normally also be a secure tenancy (and hence will enjoy statutory security). Since 15 January 1989 it has not normally been possible to create a new ‘housing association tenancy’ in the Rent Act sense.

However, this is not a material point in relation to the draft HB regulations, which require the size criteria to be applied in respect of a claim (or a renewal of a claim) for HB (that is not an LHA case or a maximum rent case in the old Rent Officer sense) unless it falls within a number of exceptions of which the one that has caused the confusion is (a). This excludes a rent allowance case (so it does not exclude rent rebate (i.e. local authority) claimants) that fall within a range of (mostly) pre-1989 categories, but not if the landlord is a ‘registered housing association’. This is where the problem arose with interpretation. The expression ‘registered housing association’ normally no longer has a meaning in England but it is still current in Wales and Scotland so we originally read the reference as having no significance in England. However, the HB regs have previously been amended to define the term ‘registered housing association’ in such a way as to include private registered providers of social housing in England. Consequently sub-para 2(a) does not exclude HAs in England as we originally believed.