A short note on Gargett, R (on the application of) v London Borough of Lambeth [2008] EWHC 663 (Admin) which was an application for Judicial Review on Discretionary Housing Payments.

The applicant had applied for a DHP to cover rent arrears, being at risk of losing her home. She was refused as

i) she was in receipt of full housing benefit.

ii) the arrears built up during a period when she was not in receipt of HB and that “therefore Housing Benefit may not be awarded as in accordance with the Discretionary Financial Assistance Regulations 2001: 2(1) and (3)”.

The applicant contended that:

(1) The Council fettered its discretion and misapplied the Regulations in excluding lump sum DHPs from those in receipt of full housing benefit.

(2) The Council failed to have regard to the claimant’s circumstances.

(3) The Council failed to consider its own prevention of homelessness strategy.

Regulation 4 of Discretionary Financial Assistance Regulations 2001 sets the limit on the amount of the DHP. It provides

    4. The amount of a discretionary housing payment (if calculated as a weekly sum) shall not exceed, in a case where the need for further financial assistance arises as a consequence of the liability to make—

        [(a) periodical payments in respect of the dwelling which a person occupies as his home, other than payments in respect of council tax, an amount equal to the amount of the aggregate of the payments specified in –

            (i) regulation 12(1) of the Housing Benefit Regulations less the aggregate of the amounts referred to in regulation 12(3)(b)(i) to (iii) of those Regulations, calculated on a weekly basis in accordance with regulation 80 and 81 of those Regulations; or.

[…]

Thus a DHP shall not exceed the maximum eligible rent for HB purposes, so that where maximum HB is in payment and satisfying the relevant housing costs, there can be no DHP award.

The applicant contended that the phrase ‘if calculated as a weekly sum’ meant that a lump sum could be paid where full HB was in payment.

The applicant also contended that the calculation should be made for the period when the arrears arose, when HB was not in payment.

The Court didn’t agree. The regulation gives a means of calculation, not a circumstance of entitlement.

The point where the calculation was to be made was the present shortfall (if any), not a past moment of shortfall, even if there was a discretion to make back payments. The applicant was not presently eligible for a DHP, so the option of a discretionary back-payment did not arise.

Grounds 2 and 3 not considered as not arising.