Discretionary Housing Payments Richard Machin Staffordshire University Mark

Discretionary Housing Payments Richard Machin Staffordshire University Mark Perlic Welfare Rights Service City of Wolverhampton Council 2 nd December 2016 1

The History… § Exceptional Circumstances Payments: helping with gap between rent and Housing Benefit due to non-dependent deductions and excess income tapers § Discretionary Housing Payments: helping with gap between rent and Housing Benefit (and Universal Credit) due to nondependent deductions, excess income tapers, bedroom tax and benefit cap § Discretionary Housing Payments: formerly helping with council tax payments where entitlement to CTB 2

Staffordshire University - Research § Tenants perceived that Local Authorities and landlord did little to promote DHPs § DHPs play a crucial role in keeping tenants in their homes § ‘Postcode Lottery’: lack of consistent decision making between authorities, inconsistent review processes, claims affected by time of claim and local and political priorities’ “Pragmatic decision based on the circumstances of the applicant” (Stokeon-Trent City Council DHP guidance) 3

§ 352 Local Authorities in England 324 have responsibility for DHPs CPAG - Research § 26 no on-line claim facility - ask for telephone or written applications § 48 required on-line claims § 25 Local Authorities unable to find any policy or guidance § 252 Local Authority application forms reviewed: - 42% asked whether family or friends couple pay shortfall - 41% stated DHPs only provide for “short-term” - 28% stated award for limited period only e. g. 13 weeks/3 months 4

The Law and Guidance § The Law: Discretionary Financial Assistance Regulations 2001 - Statutory Instrument 2001 No. 1167 (as subsequently amended) § The Guidance: Discretionary Housing Payments Guidance Manual - Including Local Authority Good Practice Guide - May 2016 5

§ requirement for ‘financial assistance’ does not arise due to liability to meet ineligible service charges, liability to pay council tax, liability to pay water rates, JSA/UC sanction, reduction in benefit to recoverpayment Key Pointers Regulation 3 § amount of DHP - (HB) weekly rent less ineligible service charges / (UC) monthly amount of housing costs element Regulation 4 § no limit on lump sum amount e. g. rent in advance/deposit Regulation 4 § DHP only in respect of a period during which claimant is or was entitled to HB or ‘relevant award of UC’ Regulation 2 and 5 6

§ claimant must require ‘further financial assistance’ (in addition to HB/UC) in order to meet their ‘housing costs’ Key Pointers Regulation 2 § local authority has ‘discretion’ whether to award DHP and the amount of award and period of the award - ‘such period as it considers appropriate in the particular circumstances of a case’ Regulation 2 and 5 § irrelevant or immaterial conditionality unrelated to ‘needs additional help with housing costs’ could be ultra vires - open to judicial review (Legal Aid - public law challenges) 7

§ claims may be accepted ‘in such form or manner’ as local authority approves Key Pointers Regulation 6 § payment may be made to claimant or ‘such other person’ where reasonable and appropriate Regulation 6 § written decision notice and reasons - as soon as is reasonably practicable Regulation 6 § a decision may be reviewed on whatever grounds - as local authority sees fit Regulation 8 8

The Case Law § Gargett v Lambeth [2008] - Court of Appeal: Reversal of High Court decision on rent arrears. Reg 4 does not prevent a Local Authority from awarding a DHP for past housing costs even if applicant is currently in receipt of full Housing Benefit. § Burnip v Birmingham City Council [2012]: LHA case - discrimination against disabled children could not be justified by the existence of DHPs as housing is a long-term commitment and DHPs are unpredictable and short-term. § R(Hardy) v Sandwell MBC [2015] - High Court: Unlawful for a Local Authority to take the care component of DLA into account when making a DHP assessment. 9

§ Rutherford, Carmichael (formerly known as MA) and A: Supreme Court handed down its decision on the above cases on 09 th November 2016: The Case Law § Rutherford: Supreme Court dismissed the Government’s appeal against a Court of Appeal decision. Finding in favour of the claimants it was held that the ‘bedroom tax’ unlawfully discriminates against children with disabilities who need overnight care, and the award of a DHP does not justify the discrimination. § Carmichael (formerly known as MA): Mrs Carmichael lives in a two bed room property with her husband. They are unable to share a bedroom because of her disabilities. Supreme Court found in favour of the Carmichaels stating that existing provision of an extra room for disabled children who cannot share a bedrooms should extend to disabled adults who cannot share a bedroom. Again availability of DHPs was found not to justify different treatment (in this case between adults and children). § A: lives with her son in a three bed property specially adapted by the police to protect her from ongoing threats to her safety from ex-partner (Sanctuary Scheme). Not exempt from the ‘bedroom tax’. January 2016 Court of Appeal unanimously held that the application of the ‘bedroom tax’ amounted to unlawful gender discrimination. The majority of the Supreme Court declined to find that ‘bedroom tax’ unlawfully discriminates against women stating that DHPs are adequate for A and others in Sanctuary Homes. Two judges dissented including Lady Hale who found that DHPs (on which the DWP justifies its discrimination) are uncertain, insufficient and onerous. 10

Wolverhampton - The Numbers (2016/2017) § 25, 600 HB claimants - 17, 800 (69. 5%) working age and 7, 800 (30. 5%) QAPC § 12, 500 (48. 8%) passported benefits - (IB)JSA)/IS/(IR)ESA § £ 806, 000 - 2016/2017 DHP budget § 1, 432 DHP claims § 146 (10. 2%) refused 11

Wolverhampton - The Numbers (2016/2017) Bedroom Tax (Total 2, 750): § 2, 250 (14%) and 500 (25%) § 14% average loss £ 12. 51/£ 14. 14 § 25% average loss £ 23. 79/£ 25. 84 Benefit Cap (Total 731): § 360 (49. 2%) WHH § 76 (10. 4%) housing association § 295 (40. 4%) private landlord § average reduction - £ 56. 95 (WHH), £ 38. 99 (HA) and £ 62. 74 (PL) 12

Good Practice - Wolverhampton § do not need to complete claim form (or complete it in full) § do not need to provide details of income § do not need to provide details of expenditure § provide details of additional expenditure - above rent and dayto-day living - disability-related expenditure § why seeking DHP e. g. bedroom tax, benefit cap or other § what would be consequences if no assistance given/what would be advantages 13

§ Total DHP allocation: England, Scotland Wales for 2016/17 is £ 150 million (an increase of 20% on the previous year) The Future… § Current Model: Four areas of funding: core funding, LHA, Bedroom Tax and Benefit Cap. Distribution is based on effect of each element in a Local Authority area. § The Scottish Model: In 2016/17 the Scottish Government has supplemented the allocation of £ 15. 2 million DHP funding from UK Government with an additional £ 35 million to allow the 32 Scottish Local Authorities to fully mitigate the impact of the ‘bedroom tax’. 14

§ Availability and award of DHPs are likely to continue to be significant factors in social security appeal cases heard in the Upper Courts The Future… § Government likely to continue to use DHPs to mitigate against the most severe effects of welfare reform - rather than review direction of current policy § Most vulnerable claimants likely to have permanent needs - how does this fit with a discretionary fund (administered locally) intended to provide short-term financial assistance? § The provision of DHPs moves us away from a ‘safety net’ model of social security provision to a system which creates ‘winners and ‘losers’ based on a postcode lottery and shifts in government policy § Need for advisers to monitor the impact of DHP scheme and initiate campaign action 15

THANK YOU Richard Machin Staffordshire University Mark Perlic Welfare Rights Service City of Wolverhampton Council 16