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.