Ask CPAG Online - How should the council decide if you can get a DHP?
There is no legal entitlement to a discretionary housing payment (DHP). All awards are made at the discretion of the local authority (LA). The LA must decide whether you need ‘further financial assistance’, in addition to your benefits, to meet your ‘housing costs’. There is no legal definition of ‘further financial assistance’ or ‘housing costs’ and LAs have broad discretion on how to interpret these terms.
LAs are free to decide:
- how to administer DHPs (including via contractors) ;
- how an application for a DHP can be made;
- what information they need to make a decision;
- how much to pay (subject to the legal maximums (see ‘How much can you get?’), for what period, and for how long;
- how and who to pay;
- how to notify and review decisions.
What guidance is there for LAs?
The Government has issued guidance to LAs about DHPs in a Discretionary Housing Payments Guidance Manual and Good Practice Guide. The guidance is not legally binding but contains useful information on how LAs should exercise their discretion. Referring to relevant sections when you apply for a DHP, or want to dispute a decision, may help to make your case. Where, in particular, any of the guidance supports your case, or any of the case examples in the guidance match your circumstances, it can be helpful to point this out.
The guidance focusses heavily on the role of DHPs in mitigating the effects of the Government’s welfare reform programme, which includes reductions in help with housing costs through HB and UC. The law, however, enables LAs to award DHPs in a wide variety of circumstances and you should not be put off making an application (or challenging a decision) if your circumstances are not covered by the guidance.
LAs should not use the Guidance Manual as a rule book and would be acting unlawfully if they refused a DHP solely on the basis that the relevant circumstances are not referred to in the guidance.
How should the LA exercise discretion?
Although the law gives LAs wide discretion on when to award a DHP, they must exercise that discretion lawfully, in accordance with public law principles. This involves:
- acting reasonably and operating fair procedures;
- deciding each case on its merits, taking account of all the relevant circumstances and disregarding irrelevant considerations;
- not ‘fettering’ discretion by making decisions solely based on a set of rigid rules, eligible groups and circumstances or policy, rather than on the individual circumstances of each case;
- acting consistently and rationally (e.g. not making different decisions in respect of two claimants whose circumstances are the same or in respect of a claimant whose circumstances have not changed since a previous decision);
- promoting the object of the legislation (i.e. providing financial assistance to claimants who need help to meet their housing costs – policy or guidance which frustrates that object would be unlawful);
- acting in accordance with legislation, including the DHP rules, the Human Rights Act 1998 and the Equality Act 2010 (i.e. without discrimination).
The Guidance Manual reminds LAs about their duties in several places.
Paragraph 1.9 states:
'You should be aware that although the regulations give you a very broad discretion, decisions must be made in accordance with ordinary principles of good decision making, i.e. administrative law. In particular, LAs have a duty to act fairly, reasonably and consistently. Each case must be decided on its own merits, and your decision making should be consistent throughout the year'.
Paragraphs 4.0 to 4.2 state:
‘….you should consider each case on its merits rather than on a set of rigid pre-defined criteria. A policy that is too rigid will effectively prevent you from exercising your discretion properly in individual cases. This could make some of your decisions vulnerable to challenge by judicial review. However, this does not mean that you must not develop a policy at all; it simply means that your policy must be flexible and allow for deviation for unusual cases, however rare.’
Failure to adopt these principles of discretionary decision making may be grounds for challenging the refusal of a DHP (see ‘How can you dispute a DHP decision?).
Are you in a priority group?
The LA may have a list of priority groups or criteria for awarding a DHP (see ‘How can you find out about your local scheme?’). They are likely to be based on the DHP Guidance Manual, which focusses on claimants affected by the benefit cap, the bedroom tax and the local housing allowance restrictions. If you need help because you are affected by these rules, see ‘What can you claim for?’
Paragraph 6.15 of the Good Practice Guide gives examples of groups LAs may want to assist to remain in their home. They include families with children at a critical point in their education, people with medical problems or disabilities, and people who need to live near their work.
Paragraph 4.4 gives examples of ‘objectives’ which LAs may want to achieve via DHPs. These include alleviating poverty, encouraging employment, preventing homelessness, keeping families together, supporting vulnerable groups, young people and children in education, and supporting disabled claimants in adapted properties.
If your circumstances fall within a priority group or objective referred to in your local scheme or the Guidance Manual, it may be helpful to point this out or base your application on it. You should not be put off from applying for a DHP, however, if you are not in a priority group.
Do your circumstances merit a DHP?
Your LA scheme may give examples of circumstances which may merit a DHP. The DHP Guidance Manual includes lists of circumstances which LAs may wish to take into account including:1
- health problems or support needs which would make it difficult for you to move (e.g. because of access to local health or hospital services or the suitability of your current accommodation);
- the availability of suitable alternative accommodation;
- the availability of local employment.
If your circumstances are referred to in your local scheme or the Guidance Manual, it may be helpful to point this out or base your application on it. You should not be put off from applying for a DHP, however, if your circumstances are not referred to.
How does the LA decide whether you need financial help?
The LA must take into account your individual circumstances when deciding whether you need a DHP. In most cases, you will need to demonstrate that you are unable to meet your housing costs from your available income, particularly where there is a shortfall due to the Government’s welfare reform programme.2
In practice, this means giving details of your income, outgoings and debts, including your housing costs, and the shortfall between your HB or UC housing costs element and your rental liability. If you are claiming for rent deposits, rent in advance, removal costs or rent arrears, you should give full details and explain why you need help to pay them.
When assessing your financial circumstances, LAs are advised that they can:3
- decide how to assess income and expenditure, but in all cases only ‘consider what is reasonable and not create a process that is too onerous for the claimant’;
- offset income against expenditure it is used to meet;
- take account of unavoidable costs, such as fares to work;
- use details about your income and rent they hold in relation to your HB, UC or council tax support awards;
- take account of your debts;
- take account of your capital;
- consider whether there is scope to negotiate a rent reduction and whether you could afford your rent when you started your tenancy.
Are you getting DLA or PIP?
If you are getting the mobility component of disability living allowance (DLA), this should be disregarded when the LA assess your income.4 Following a recent court case, it is strongly arguable that this also applies to the care component of DLA and the daily living and mobility components of personal independence payment (PIP).5
Although there is no statutory ban on LAs taking account of these benefits when assessing your income for DHP purposes, the Court held a ‘blanket policy’ of always taking the DLA care component into account was an unlawful ‘fettering’ of a LA’s discretion and could constitute unlawful discrimination against disabled people contrary to the Human Rights Act 1998 and the Equality Act 2010.
At the very least, LAs should consider whether to disregard some or all of your disability benefits on the basis that they are used to meet your disability related needs.6
- 1. Paragraphs 5.4 and 5.5 of the ‘Good Practice Guide’
- 2. Paragraph 1.15 of the DHP Guidance Manual
- 3. Ibid paragraphs 3.8 to 3.13 and paragraphs 5.2 and 5.3 of the ‘Good Practice Guide’
- 4. Section 73(14) Social Security Contributions and Benefits Act 1992
- 5. R v Sandwell MBC ex parte Hardy  EWHC 890
- 6. Paragraph 3.9 DHP Guidance Manual