Ask CPAG Online - How should you dispute a decision?
The local authority (LA) must notify a discretionary housing payment (DHP) decision in writing with an explanation for the decision, and the notice should include details of how you can dispute the decision. Each LA can decide how to operate a review procedure, so if you are unhappy with a DHP decision, you should find out how you can dispute it by checking your local scheme (see ‘How can you find out about your local DHP scheme?’).
There may be a form you can use to ask for a review, or you may be able to request a review by writing a letter, or even emailing or telephoning the LA. You may also be called for interview by the LA. If there are no set procedures it is probably best to write a letter, making it clear that you are requesting a review. There are no time limits for requesting a review, but it is clearly best to apply as soon as possible.
However you ask for a review, you need to explain your grounds,1 giving details of why you believe the decision you are disputing was wrong (see ‘What are the grounds for disputing a decision’). If you have any further evidence which could help your case, you should submit this with your application (e.g. more information or documentary evidence about your financial situation or rent arrears).
The LA must notify you of its review decision in writing with an explanation for the decision. If there are long delays in getting a decision, or the review procedure is badly administered, you could make a complaint using the LA’s complaint procedures. You could also ask your local ward councillor to intervene.
If your complaint is not properly dealt with, you could make a complaint about maladministration to the Local Government Ombudsman (see www.lgo.org.uk), although this is unlikely to result in a quick resolution.
What can you do if a decision is not reviewed in your favour?
You should find out from your LA about how you can pursue your dispute. Some LAs may have a two (or more) stage review process, so that if you are not happy with a review decision, you can ask for a further review by a different LA officer or a panel of officers. If you have to attend an interview, or a hearing before a panel, you have the right to be accompanied by another person (e.g. a representative, or a family member or friend).
Once you reach the end of the review process, or where the LA refuses to carry out a review, your only legal recourse is Judicial Review. Judicial Review is a form of legal proceedings in which a court reviews the legality of a decision made by a public body like a LA. The courts have developed a number of principles relating to the lawfulness of discretionary decisions which are likely to be relevant in the case of DHP decisions.
In particular, a DHP decision may be unlawful if:
- it does not comply with the legislation on DHPs (e.g. where the LA says it cannot pay a DHP for past rent arrears, or refuses to issue a written decision with reasons on your application for a payment or a review);
- it is based on a set of rigid criteria (which may be set out in the LA’s DHP scheme or policies) rather than the particular circumstances of your case;
- it fails to take into account all relevant circumstances and/or took account of irrelevant considerations (e.g. that the LA’s DHP funding is running low towards the end of the financial year, or that a claimant affected by the benefit cap or ‘bedroom tax’ is not making enough effort to find work or move);
- it is irrational (e.g. a refusal to make an indefinite award where your circumstances are unlikely to change, or a refusal to renew an award where your circumstances have not changed since the previous decision);
- it is discriminatory (e.g. because it constitutes unfavourable treatment of a disabled claimant, contrary to Article 14 of the European Convention on Human Rights(ECHR) and / or the Equality Act 2010).
A good example of a successful Judicial Review can be found in http://www.bailii.org/ew/cases/EWHC/Admin/2015/890.html. The case concerned the refusal of a LA to award DHPs to a disabled couple to make up the full shortfall between their housing benefit and rent caused by the imposition of the ‘bedroom tax’, because of their receipt of the care component of disability living allowance (DLA).
The Court held that the decision was unlawful because:
- it was based on a council policy of always taking into account income from the DLA care component, rather than an individual assessment of the claimants’ income and expenditure;
- it constituted unjustified indirect discrimination under Article 14 of the ECHR (when considered together with Article 1 of protocol 1 under which a DHP was a ‘possession’ and Article 8, which was engaged because of the threat of the claimants losing their home);
- it constituted unlawful discrimination under section 29(6) of the Equality Act 2010 and reflected a failure by the LA to comply with its Public Sector Equality Duty, or make reasonable adjustments for disabled claimants contrary to section 20(3) of the Act.
To pursue a Judicial Review, you need to seek legal advice from a solicitor and apply for legal aid. Sometimes a letter before action to the council’s solicitors threatening Judicial Review results in the LA changing its decision.