Scottish Discretionary Housing Payment: guidance manual

Section 13: Legal considerations

33. The cases mentioned below (R v LB Lambeth, ex parte Gargett and R v. Sandwell MBC, ex parte Hardy) both concern the application of the previous DWP DHP legislation and guidance. This means that Scottish LAs who are operating under the new devolved Scottish DHP legislation and guidance are not legally bound by those judgments. However, the rules which are discussed in the Lambeth and Sandwell judgments are substantively very similar to the new rules in the Scottish DHP scheme. Therefore, LAs should consider those judgments to be highly persuasive aids when applying the new Scottish rules. It is likely that the Scottish Courts would reach similar conclusions if the same issues were raised before them.

34. R v. LB Lambeth, ex parte Gargett

34.1 The Court of Appeal’s decision in ‘R v. LB Lambeth, ex parte Gargett’ sets out that any HB already paid towards ‘housing costs’ must be deducted when calculating the amount of a DHP to avoid duplicate provision.

34.2 This case relates to rent arrears and specifically whether a DHP could be used to pay a lump sum towards rent arrears (the Court of Appeal found that a DHP could be used for this purpose). However, the case also discusses the issue of duplication of DHPs and HB. In relation to preventing duplication of provision, part of the decision states ‘housing benefits already paid for past housing costs must also be deducted. This is implicit in the purpose for which DHPs may be made. Otherwise, the applicant would be receiving DHPs for housing costs that have already been met by past payment of housing benefits.’

34.3 The case does not prevent the use of a DHP for rent in advance but indicates that when making such a decision on whether a DHP can be used, you may consider whether there is likely to be a duplication of payments for the initial part of the tenancy if the DHP is made and if so, is there any means to avoid this.

34.4 If an LA decided that there is no way to avoid a duplication of the payment and the individual is entitled to a DHP in respect of housing costs (specifically a rent in advance payment), then the LA may still award a DHP.

34.5 The DFA regulations that were applicable at the time required that a DHP can only be considered for a period where the linked HB or relevant award of UC is payable. This is of particular relevance to requests for a period of backdated DHP, since backdating cannot cover arrears accrued while not in receipt of these benefits. The case relates to rent arrears and specifically whether a DHP could be used to pay a lump sum towards past rent arrears.

34.6 The Court of Appeal found that there was no restriction within the DFA regulations to prevent an LA from exercising its discretion to make DHP payments for past housing costs (including arrears of rent) on the basis that the individual was in receipt of full HB at the time.

35. R v. Sandwell MBC, ex parte Hardy

35.1 When deciding how to treat income from disability-related benefits such as Disability Living Allowance or the Personal Independence Payment, LAs must have regard to the decision of the ‘High Court in R v. Sandwell MBC, ex parte Hardy’.

35.2 This decision places an obligation on LAs to consider each DHP application on a case-by-case basis having regard to each component of the benefit, the purpose of those disability related benefits and whether the money from those benefits has been committed to other liabilities associated with disability, even where they might not be obviously associated with disability e.g. higher heating or food bills.