Roberts v Secretary of State for Work and Pensions (2025) EWHC 51 (Admin)

A quick note on this judicial review of DWP policies on implementing ‘diversionary’ payments (direct payments of rent element of Universal Credit to landlords) and ‘recoupment’ payments (deductions from Universal Credit for arrears, paid to landlords).

DWP policy had been as follows:

For ‘diversionary payments’, for social landlords only, not private landlords, the DWP would implement the payment to landlord, notify the tenant claimant and offer them a chance too request a reconsideration (which could take about 50 days or more).

For ‘recoupment payments’, for both social and private landlords, the DWP would implement the deduction, notify the tenant claimant, and offer reconsideration.

The High Court found this to be unlawful. While the principle of the deductions was ‘in the tenant’s best interests’, as likely to preserve the tenancy, the tenant claimant had to be notified of the landlord’s request for deductions and given the opportunity to raise whether there was a dispute as to the amount of arrears, payability of rent amount, or some other dispute with the landlord underlying the arrears. (eg, an example given in the judgment is

Indeed, in the context of a disrepair dispute, where withholding rent may be the only leverage which a tenant has, SSWP may very well be unwittingly and unknowingly cutting across a protection.

(I’ll come back to this below).

Not to give the tenant claimant the opportunity to make representations before imposing the deduction (and then only offering reconsideration of the decision) was procedurally unfair.

The Court made a declaration in the following terms

The Defendant’s policy of directing her decision makers that it is unnecessary to give Universal Credit claimants an opportunity to make representations before making payments to landlords under reg.58 and/or Sch.6 Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 is unlawful, because it is procedurally unfair.

Comment

While the judgment certainly makes sense, and it is hard to see why the policy had differed between social and private landlords on implementing direct payment of the rent element of UC to the landlord, from a housing lawyer’s point of view, it is interesting to see both the Court and indeed the DWP accepting that withholding rent in a housing conditions dispute is a valid course of action by the tenant.

As well as the Court’s mention of this, above, the DWP’s supposed ‘new’ policy, mentioned in the judgment, said

“We have agreed to a request from your landlord to pay your rent to them directly. You can only challenge this decision if one of the following applies to you: (i) your rent payments are up to date; (ii) you are in a disrepair dispute with your landlord. To challenge our decision, contact us using your journal or call us on xxx. You will be asked to provide evidence of either your dispute or your rent payments. If you do not contact us, we will pay your rent to your landlord.”

This was criticised by the Court as overly restrictive – no arrears or a disrepair dispute were not the only possible reasons for the tenant to dispute arrears or the amount of arrears, but again, the withholding of rent in a disrepair/conditions dispute is officially acknowledged.

This, of course, sounds odd to housing lawyers. The usual (indeed universal) advice is that the breach of an obligation by the landlord does not permit the breach of the rent obligation by the tenant, such that the tenant could easily face a rent arrears possession claim which a housing conditions counterclaim may well not extinguish.

We also know, in practice and from experience, that the rent is rarely ‘withheld’ in the sense that it is saved away, ready to be paid when the landlord complies with its obligations.

But there we are, everyone, even the DWP, needs a housing lawyer with them at all times.