When can an extra bedroom be allowed for overnight care?

The latest in a long line of appeals against the bedroom tax has just been heard in the Upper Tribunal in England.

The case concerned a claimant (SD) who lived in a three-bedroom house. She previously had three daughters living with her, but two had since moved out. In accordance with the new rules for Universal Credit, the claimant was only entitled to a two bedroom rate of Housing Benefit (HB). HB for a three bed property would only be available if she was a 'person who requires overnight care'.

The claimant appealed to the First-tier Tribunal on the basis that she did require overnight care and should therefore be entitled to the three bedroom rate of HB.

The definition of a 'person who requires overnight care'

The definition of a ‘person who requires overnight care’ is currently set out in Regulation 2 of the Housing Benefit (NI) Regulations 2006 as a person who is:

• in receipt of Attendance Allowance;
• in receipt of the care component of Disability Living Allowance at the high or middle rate; or
• if not in receipt of either of the above, they can provide the Housing Executive with sufficient evidence to show that they require overnight care.

AND

The Housing Executive is satisfied that the claimant or their partner:

• reasonably requires, and has in fact arranged, that one or more people who do not occupy the dwelling as their home should:
• be engaged in providing overnight care for the claimant or their partner;
• regularly stay overnight at the dwelling for that purpose; and
• be provided with the use of a bedroom in that dwelling additional to those used by the persons occupying the dwelling as their home.

How often is ‘often’ for overnight care?

The outcome of this case hinged on the meaning of ‘regularly’. The Upper Tribunal allowed the claimant’s appeal stating that the First Tier Tribunal had not correctly understood the meaning of the word 'regularly'. Judge Rowland stated that the legislation is concerned with whether the need for care arises often and steadily enough to require a bedroom to be kept for the purpose - '...there is nothing in the word 'regularly' that requires that the carer must be required to stay overnight on the majority of nights for the claimant to meet the criterion. That may be why that word was chosen.  It does not mean the same as 'normally' or 'ordinarily'. A bedroom may be required even if the help is required only on a minority of nights.  Whether a carer must 'regularly' stay overnight must be considered in that context.' This essentially means that each case must be decided on its own facts.

The Judge went on to look at the question of DLA - '... whether or not a claimant who is entitled to the care component of disability living allowance qualifies for that component on the basis of the 'night' attendance conditions cannot be determinative of the question whether claimant is a 'person who requires overnight care'.

Although this case does not establish a precedent in Northern Ireland, it may still prove useful when advocating on behalf of a client whose overnight care needs may only be on a minority of nights per week or where it is erratic in nature.

Read the full decision of SD v Eastleigh Borough Council (HB) (Housing and council tax benefits : other) [2014] UKUT 325 (AAC)