Discretionary Housing Payments and long term awards

R (on the application of Halvai) v Hammersmith and Fulham LBC (2017) QBD (Admin) (Sara Cockerill QC) 09/03/2017

(Only on lawtel as an extempore judgment, as far as I can see)

This was a judicial review of H&F’s refusal of Discretionary Housing Payments to Ms H. Ms H has severe autism and learning and behavioural difficulties. She requires one-to-one care, suffered from extreme anxiety and so had vital and complex accommodation needs, including a very quiet environment.

The council could not find suitable social housing and while Ms H had grown up with her mother, the family home was not suitable. The mother had built a self contained extension to her home, in which Ms H lived with a carer staying. The extension was funded by a mortgage, and the mother charged Ms H rent to cover the mortgage, paid for by housing benefit (an FTT had determined that HB was payble as Ms H’s mother (and Ms H) were at risk of eviction by repossession otherwise).

Ms H applied for DHP of £150 pw to cover the shortfall between HB and the rent/mortgage payments.

H&F refused DHP on the basis this amount was very high, awards of £150 pw would only be made on a short term basis, for example to prevent homelessness, and there was no risk of Ms H becoming homeless.

Ms H brought a judicial review, arguing:

  1. H&F had failed to apply its own policy, and failed to have regard to the DWP Guidance.
  2. H&F had failed to exercise its remaining discretion.
  3. H&F had made an irrational decision in finding that there was no risk of homelessness.

The Court held:

The DWP guidance stated it might be appropriate to award DHP for an indefinite period where an individual needed further assistance with housing costs and their circumstances were unlikely to change. The Guidance also stated that a council should consider making the award on a long-term basis where a person was disabled and required specially adapted accommodation. H&F’s policy was broadly in line with the Guidance, stating that there should be an annual review where the award was £150 pw or over as that was “normally too large for a long term solution”. But this suggested that a smaller award could be made long term. The DWP Guidance stated clearly that awards of over a year should be considered in appropriate circumstances. In the present decision H&F had misapplied both the DWP and its own policy in finding that the award could not be made long term. The decision also misapplied H&F’s policy in failing to address the impossibility of finding Ms H suitable accommodation elsewhere and in supporting those in need of specially adapted accommodation. There had been no wider consideration of relevant issues beyond the amount and the duration.

The council had not applied its discretion. There had been no consideration of whether the present case was unusual, or any address to Ms H’s individual circumstances.

While more could have been done to consider the eviction issue, it was not irrational to not start from the FTT decision, which was before any award of HB. Ms H’s application had not focussed on the risk of eviction and there was no evidence of the position post-dating the FTT.

The claim succeeded on grounds 1 and 2. The decision was quashed and remitted to the council to remake, as it was still possible, though ‘not highly likely’, that the council could have reached the same decision without the errors of law being committed.

Comment

Mechanistic application of DHP ‘rules’ was always going to be open to challenge, particularly where no regard was apparently had to DWP Guidance or specific circumstances. As we’ve noted before, long term DHP is supposed to be a thing, and this is not going away.

Well done, whoever ran this claim. Do make yourselves known!

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Benefits, Housing law - All and tagged , .

5 Comments

  1. Can you tell me what FTT is please. One way of doing this would be forcthe family member to lease the self contained annexe to an RSL or not for profit housing provider and claim via specialised and or exempt status
    The family would need to cite several reasons for doing this not just benefits do that the question of contrivance doesn’t come up but this is easily addressed

    • Oh I thought HB in payment but refused a discretionary payment to top up citing it was too long term
      I’ve read it wrong
      My thoughts were if it was exempt HB then a discretionary payment wouldn’t have been required
      I did get the arguments about the guidance and the discretionary payment I thought thanks

    • Oh I see! I suspect a lease would have been impossible with the mortgage. And even then, exempt status would have been hard to come by – not supported accommodation.

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