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Discretionary Housing Payments

By J

R (Gargett) v LB Lambeth [2008] EWCA Civ 1450; on appeal from [2008] EWHC 663 (Admin).

A Discretionary Housing Payment (DHP) is a discretionary payment made by a local housing authority to a person who is (a) in receipt of housing benefit or council tax benefit;  (b) considered by the authority to be in need of “further assistance” with “housing costs” and (c) who applies for a DHP.

There is a fixed limit which any local housing authority can spend on DHPs in any given year and that limit cannot be exceeded.  See s.69 Child Support, Pensions and Social Security Act 2000 and the Discretionary Financial Assistance Regulations 2001.

Ms Gargett is a 24 year old single mother and an assured tenant of the St Martin’s Community Partnership in Tulse Hill, London.

In 2004, when her tenancy started, her weekly rent was £82.57. It had increased over time and, at the date of the appeal, stood at £99.33. Her rent was paid largely – but not entirely – by housing benefit. In particular, the rental increases were not brought to the attention of the housing benefit authority. As a result, Ms Gargett fell into rent arrears of c.£3,800. By the time that the proceedings were issued, Ms Gargett had managed to regularise her housing benefit position and was in receipt of full housing benefit which covered the whole of the rent.

Ms Gargett applied for a DHP from the housing benefit authority to cover the arrears. The local housing authority (LB Lambeth) declined to make any payment. They contended that they had no power to make the payment because, as Ms Gargett was now in receipt of full housing benefit she could not need “futher assistance” with housing costs. In their view, the DHP regime worked to “top up” existing payments, not deal with historic problems. This argument was successful in the High Court.

Ms Gargett appealed – successfully – to the Court of Appeal. There was no such limit on the powers of the local housing authority. A DHP could lawfully be made in respect of previously accrued rent arrears and the council had erred in concluding that it had no power to make the payments requested. The decision was quashed and the matter remitted for reconsideration by the council.

The Court of Appeal plainly struggled with the substantive law in this case. The Regulations were confusing and far from easy to follow. Wall LJ was particularly unhappy with this. Whilst not wanting to pre-judge or influence the decision that Lambeth would now make in respect of the application, he made clear that:

… the appellant cannot be criticised for either ignorance or incomprehension of the statutory regime. In my view, it remains an aparently non-eradicable blemish on our operaton of the rule of law that the poorest and most disadvantaged in our society remain subject to regulations which are complex, obscure and, to many simply incomprehensible.

And so say all of us.

For those with a particular interest in housing law reform, see also the comments of Andrew Arden QC and Jan Luba QC here.

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.


  1. Michael, Islington

    Jesus. A non-lawyer speaks.

    Costs to the local authority – probably north of £10,000.

    Costs to the state (legal aid) – ditto

    Why the fuck didn’t Lambeth do the sensible thing?

    • NL

      Costs to the local authority – more than that. Almost certainly there would have been a costs order on the appeal (and probably retrospectively for the High Court proceedings) that the LA pay the appellant’s costs. This would have been at more than legal aid rates. So – guesstimate – c.£50,000 costs to the LA? And some for the initial stages to Legal Aid, maybe two or three grand. Still, it saves other people/LAs going through it and the costs of those disputes.

      But as J says below, it is actually a question of whether the LA could or couldn’t make the payments, not whether it wanted to or not. This might not be something a ‘non-lawyer’ would get, but whether an LA’s actions are within its powers or not is something one would hope a Council officer like yourself would understand to be important.

      • J

        Sorry – I’m still getting to grips with this ‘nested’ comments thing!

        • NL

          It’s still under test, but seems to be working…

  2. J

    Once Lambeth had formed the view that they had no power to make this payment, they could not properly make the payment. They would – on their own case – be acting in an ultra vires manner. I don’t see how they could settle the case in those circumstances.

    • William Flack

      Lambeth could easily have settled by reviewing the decision internally. It is likely that the initial decision was made by a fairly junior member of staff. Once the decision was challeged I would have hoped that a more senior/experienced officer might have looked at it again and withdrawn it. It is possible that this did happen but those who looked at it again including specialist counsel thought that the council had no discretion to make the payment. Afterall the High Court and the Court of Appeal at the paper stage of the permission seemed to have thought so too. Nevertheless it was always possible for Lambeth to withdraw the original decision.


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