The ruling, the first by an upper tribunal to set a precedent, overturned a first-tier tribunal decision that had upheld a housing benefit cut by Eastleigh Borough Council.

The Hampshire local authority reduced the benefit of a woman who lives in a three-bedroom house with her daughter and was therefore deemed to have a spare room. The woman contended that she required a room for an overnight carer because she suffered from severe asthma and eczema.

The council said in a letter dated 18 October 2012 that because her disability living allowance was calculated on her day needs rather than night she did not have a regular need of carer. The housing benefit regulations allow a room for carers who ‘regularly’ stay overnight.

The unnamed claimant, however, contended that she does need a spare room, and produced a doctor’s letter saying the ‘unpredictability’ of her asthma means ‘she may well need and often does have someone staying over night to look after her’.

In the ruling dated 9 July, upper tribunal Judge Mark Rowland said: ‘A bedroom may be required even if the help is required only on a minority of nights.’

Giles Peaker, partner at Anthony Gold Solicitors, said he would not be surprised if ‘a fair number of councils’ had calculated who needs a spare room for overnight care in the same way as Eastleigh council.

He said: ‘Anybody who has been rejected on the basis of overnight care should have a look at this.’

Sam Lister, policy and practice officer at the Chartered Institute of Housing, said the numbers of people likely to benefit from the ruling are small.

A spokesperson for Eastleigh Council said: ‘The council is not going to appeal and will abide by the decision of the court.’

http://www.insidehousing.co.uk/legal/landmark-bedroom-tax-ruling-issued/7004990.article