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Housing benefit size restrictions in social housing if you were living in the same home since 1 January 1996

This advice applies to England

If you live in a council or housing association home and you are working age, your Housing Benefit may be reduced if your home is considered too large for you. This is sometimes known as the 'bedroom tax', the ‘under-occupancy charge’ the ‘social sector size criteria’ or the ‘removal of the spare room subsidy’.

However, if you were living in the same home since 1 January 1996 and you were getting Housing Benefit continuously, the size restrictions should not apply to you for the period from 1 April 2013 to 2 March 2014. If the rules have been wrongly applied, you could be entitled to a refund.

Who is affected?

If you rented your home from a social landlord, such as a council or housing association, the Housing Benefit size restrictions did not apply to you from 1 April 2013 to 2 March 2014 if:

  • you were living in the same home continuously since at least 1 January 1996, and
  • you were getting Housing Benefit continuously since 1 January 1996.

If you had to leave your home for some of that time only because of a fire, flood, explosion or natural catastrophe, you can still be treated as living there.

If you broke your claim for Housing Benefit for up to four weeks, this is ignored. A break of up to 52 weeks is ignored if you or your partner were a ‘welfare to work beneficiary’. This might apply if you or your partner were long-term sick and came off benefit to try out training or work.

In some circumstances, you can be treated as getting Housing Benefit continuously if you took over the claim from another member of your household who left the home or died. For example, this could apply if your partner was the person claiming Housing Benefit from 1 January 1996, but you started claiming at the same address when your partner left the home.

Who is entitled to a refund?

If you meet the conditions above, but your Housing Benefit was reduced due to the size restrictions, then you are entitled to a refund of the amount that has been wrongly taken off your benefit between 1 April 2013 and 2 March 2014.

You should write to the Housing Benefit department of your local council and ask them to revise their decision from 1 April 2013. Your letter could say something like:-

Please revise your decision about my housing benefit entitlement from 1 April 2013 to 2 March 2014. I believe that the under-occupancy rules did not apply to me because I was getting Housing Benefit continuously since 1 January 1996 and I was living at the same address throughout that time.

If the council agrees, they must reassess your Housing Benefit entitlement and pay you any arrears due to the reduction.

In some cases, the council will have all the evidence they need to make a refund. However, in other cases, they may have destroyed their earlier records. In this case, you will need to provide evidence of your address and your Housing Benefit entitlement from 1 January 1996.

Did you get a Discretionary Housing Payment?

If your council paid you any Discretionary Housing Payments to help with a Housing Benefit shortfall during the period when your benefit was wrongly reduced, they may ask you to pay this back. However, they are not allowed to take it off your Housing Benefit entitlement.

Have you moved home because of the reduction in your Housing Benefit?

If you moved or lost your home because your Housing Benefit was wrongly reduced, you are entitled to a refund of any benefit wrongly deducted while you were still living in the home.

If this applies to you, you may also want to make a complaint and claim compensation from the council for any loss, distress or inconvenience suffered as a result of their mistake. If you are not satisfied with the result of a complaint to the council, you can refer your complaint to the Ombudsman. The Ombudsman may recommend that the local authority pays compensation.

Closing the loophole

The rules for people living in the same home since 1 January 1996, and getting Housing Benefit continuously, were due to a loophole in the law. The government was not aware of this loophole when they introduced the size rules and nor were the local councils that administer Housing Benefit. This is why they got it wrong.

The government has now closed this loophole by changing the law. This means that the size restriction rules will apply to you again from 3 March 2014, unless you are now exempt for some other reason. For example, the size rules do not apply if you are over working age.

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