Local welfare: tips and tactics

Issue 248 (October 2015)

Robbie Spence sets outs some general tips and tactics for reading between the lines of council guidance about local welfare assistance schemes, in order to give advisers the best chance of getting help for their clients.

CPAG’s local welfare assistance scheme (LWAS) search tool will point you to important details about how local welfare assistance schemes vary from country to country, county to county and district to district. (Help us to keep the details up to date by emailing us at lwas@cpag.org.uk if you spot any errors.)

Some schemes have closed, including: London Borough of Bexley, London Borough of Hillingdon, Nottinghamshire, North Lincolnshire, North East Lincolnshire, Northamptonshire and Oxfordshire. A few others have effectively stopped providing cash or grants or loans but do not say so explicitly on their websites – eg, Cumbria and Hampshire.1

The tips and tactics in this article centre on the fact that the schemes are discretionary. For example, councils must not apply any rule, policy or process that fetters (unreasonably restricts) their discretion. This is part of their duty to act according to administrative law principles. Breaches of these rules can be challenged, mainly by way of judicial review: see How to challenge LWAS decisions (below)

Does the claimant need to be resident in the council area?

Normally yes, but not necessarily. The schemes are by definition local schemes, so it is reasonable for councils to give support only to local people. But there are exceptions. The claimant might be homeless and have just arrived from another part of the country. S/he might be fleeing domestic violence and want to be far away from her/his local area for personal safety. S/he shouldn’t necessarily be refused local welfare assistance in either of these cases. The claimant will need to explain why s/he is applying in the area s/he is now living in, rather than the previous one. If s/he has a local connection, such as a family member who lives in the area, that would be a good explanation.

CPAG believes that it is unlawful for councils to require claimants to have been resident in their area for a period of time before they can apply. This is based on the 2014 High Court decision in Winder v Sandwell, which found it unlawful for councils to make rules about periods of required residence in respect of council tax reduction.2

Does the claimant need to be over 18 years old?

Not necessarily. While it is common for councils to specify a minimum age limit, this cannot be a rule (as it can, of course, for benefits). CPAG knows of one council that gave a payment for essential household expenses to a 16-year-old. (This was because the person who would normally have applied, his single-parent mother, was in prison at the time.)

Does the claimant need to be on a specific benefit?

Normally yes, but not necessarily. There are often two related questions here: do they need to be on a specific benefit and, if so, for how long?

Many councils specify that the claimant must be on one of the means-tested benefits for daily living costs: income support, income-based jobseeker's allowance, income-related employment and support allowance, pension credit guarantee credit or universal credit.

These guidelines are based on the rules for budgeting loans and community care grants (CCGs) under the previous nationwide social fund scheme. LWAS guidance has, as it were, been handed down in two parts: guidance for CCG-type payments and guidance for pay-ments that would have been made as crisis loans in an emergency or disaster, like a fire or flood that forced you out of your home. So if the claimant is asking for a LWAS payment that is akin to an emergency/disaster crisis loan, s/he should argue that s/he does not need to be on a specific benefit to apply.

If council guidance says the claimant should be on a specific benefit for a specific period, this is likely to be a similar carry-over from social fund rules – eg, the six-month rule for budgeting loans.3 Again, s/he should argue that s/he does not need to be on benefit for a specific period before s/he can apply.

As always, the overriding question should be, is the claimant in need?

Often housing benefit (HB) and council tax reduction are included in the list of qualifying benefits for LWAS. This can be relevant if the claimant is in work – see the next question below.

Does the claimant need to be out of work?

Not necessarily. The reason why many councils include housing benefit in the list of LWAS qualifying benefits is to make it clear that people who are in work can apply. However, claimants can onlybeon HBiftheyareatenant, sothispurported inclusivity leaves out people who are in work but not renting, such as people with mortgages, people living with their parents, or who are homeless and staying with friends (including so-called sofa surfing). The truly inclusive approach would be to include working tax credit in the list of LWAS qualifying benefits. But this is rare.

It’s clearly easier to apply if the claimant is on a benefit that is listed in council guidance, but claimants aren’t necessarily excluded if they are not, because exclusions amount to a fettering of discretion.

Does the claimant need to be a householder?

Not necessarily. The case study on p6 in answer to the question, Does the claimant need to be over 18 years old?, illustrates that s/he does not necessarily need to be a householder to get local welfare assistance.

Can claimants get a payment when their benefit has been sanctioned?

There was a view that claimants should not get LWAS payments if their benefit has been sanctioned, because this might make the sanction less effective as a punishment or deterrent. However, as reported by the Local Government Association,4 several councils that initially took this view have all since changed their policies to say that claimants can get a payment when their benefit has been sanctioned.

This is a good example of the public law principle that authorities must promote the aim of the law in question.5 The aim of LWAS payments is to provide for people in need, not punish people who have been sanctioned.

Are cash payments available?

The stated answer is often no, but the answer is often yes, if there are exceptional circumstances. This is illustrated by the Local Support Payments scheme that is run in partnership by the three London Boroughs of Hammersmith and Fulham, Kensington and Chelsea and Westminster.

On its website front page, the Westminster scheme states that it is a ‘non-cash scheme’ and the Kensington and Chelsea page states that ‘payments are not given to you as cash’. Yet the Kensington and Chelsea Guidance states: ‘In exceptional circumstances, post office vouchers can be awarded which can be exchanged for cash.

Can the claimant have savings?

It is common for LWAS guidance to specify that claimants must have no savings, or less than a specified level of savings. For example, the Scottish Welfare Fund says that, for a crisis-type payment, you must have no savings and, for a CCG-type of payment, you must have no savings above £700 if you are under pension age, or £1,200 if you are over pension age.6

This type of guidance relates back to DWP social fund rules but, as always, it is not law and the only ‘rule’ is that you must be without enough money to meet your needs.

What does it mean to ‘have recourse to public funds’?

Several councils state that applicants ‘must have recourse to public funds’ – ie, not be prevented from having such recourse. This is a red herring. It is a reference to the rule that people who are subject to immigration control are generally not allowed to ‘have recourse to public funds’, which includes certain DWP benefits, along with help for homeless people. But LWAS schemes are not currently listed as public funds.7 Also, the vast majority of the UK pop- ulation who are not subject to immigration control are, of course, allowed to have recourse to public funds as long as they meet the other rules of entitlement.

How to challenge LWAS decisions

Unfortunately, the ways to bring a challenge are limited. The main legal route is judicial review. This is the process by which the High Court reviews the lawfulness of a decision or action made by a public body. It is a potentially expensive procedure for which you need a solicitor.

CPAG has a contract with the Legal Aid Agency to advise a certain number of clients each year in relation to actual or potential judicial review proceedings. If your client has a problem that may be resolved through judicial review or the threat of judicial review, contact testcases@cpag.org.uk. We are particularly keen to focus on the following LWAS issues:

  • unreasonable decisions or policies;
  • direct or indirect discrimination;
  • minimum local residency rules;
  • restrictions on methods of claiming;
  • overly strict application of eligibility criteria/ failure to properly exercise discretion.

Summary

Many council LWAS pages stipulate ‘eligibility criteria’. However, they are not rules, only guidance. Whether the claimant is applying to a scheme in England, the Scottish Welfare Fund or the Welsh Discretionary Assistance Fund, the guidance should be approached with caution: use it if your client fits into the criteria but, if they don’t, argue for the general principle that each case must be decided according to need. The fundamental points are that LWAS, are discretionary and councils must decide each case according to need and in accordance with administrative law principles. These include that the council must:

  • follow the law and not do things it has not been given legal authority to do;
  • act reasonably and follow fair procedures;
  • not fetter its discretion by having an overly rigid set of rules;7
  • take all relevant considerations into account and ignore irrelevant considerations;
  • comply with the Human Rights Act 1998;
  • comply with European Union law (this is especially important with regard to the rights of European Economic Area migrants);
  • comply with the Equality Act 2010 (including the public sector equality duty).

Further information

 


Please be aware that welfare rights law and guidance change frequently. Older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.

  • 1. Hampshire County Council as at July 2015states that it cannot provide cash, goods or services
  • 2. Winder v Sandwell [2014] EWHC 2617 (Admin)
  • 3. www.gov.uk/budgeting-loans and see also CPAG in Scotland’s factsheet on the Scottish Welfare Fund, p6 http://www.cpag.org.uk/content/scottish-welfare-fund-and-changes-discret...
  • 4. Local Government Association, Delivering Local Welfare: how councils are meeting local crisis and community care needs, September 2014, p8
  • 5. A policy or guidance which frustrates the aim of the law in question will be deemed unlawful: R v Minister of Agriculture and Fisheries ex p. Padfield [1968] UKHL 1
  • 6. CPAG in Scotland factsheet on Scottish Welfare Fund, p3 7 Immigration Rules, para 6. CPAG in Scotland factsheet on Scottish Welfare Fund, p3 7 Immigration Rules, para 6. See also ‘Scottish Welfare Fund entitlement for migrants’ in the February 2015 edition of CPAG in Scotland's Advising black and minority ethnic (BME) communities project e-bulletin, at www.cpag.org.uk/scotland/advising-bme-communities project See also ‘Scottish Welfare Fund entitlement for migrants’ in the February 2015 edition of CPAG in Scotland's Advising black and minority ethnic (BME) communities project e-bulletin, at www.cpag.org.uk/scotland/advising-bme-communities-project
  • 7. R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, at [143]