My Service User is in private rented, needs a second bedroom for a carer to stay over 2-3 nights pw (not the carers main residence)-physical and mental health. She moved to be near her family who provide all care. Under LHA she's only entitled to one bedroom rate. Her DHP for balanace of rent has been refused, I'm helping her with a review.

LHA regs dont appear to allow any discretion. We think regs may be in breach of Art 8 and 14 HR. Also potential Disab Discrim. Potential case for JR as even discretionary DHPs may not be adequate remedy.

Does anyone know of any challenges to these regs? Need info please . . .
Ferhana (tel: 225 2452, Mon, Tues Weds til 2.30)

Playing Devil's Advocate, it could be argued that the above argument would result in disabled people being treated beneficially compared with non-disabled people. As such, there is no breach of the HRA.

By way of analogy, student loans must (normally) be taken into account as a claimant's income, even if the loan is not actually applied for. In CH/4429/2006 was argued this discriminated against Islamic students because applying for a loan would potentially conflict with their religion. The Cmmr found that to accept such an argument would itself discriminate against non-Islamic students. Accordingly, there was no breach under the HRA.

I understand the view that LHA ought to take account of the need for additional rooms, but it doesn't.

I can only second guess but I think DWP's view is that LA's could meet any identified need from the DHP fund but of course that will only be where the person demonstrates that they don't have enough income to meet the shortfall.

There is also the issue of any fairer charging assessment where the burden of the additional room should be taken into account in that needs assessment.

The HB element only forms part of the overall financial assessment and I'm sure thsat any challenge would have to recognise all of the avenues of potential additional support.

I think you're wrong Kevin - under the Disability Equality Duty, all public authorities must take steps to meet disabled people’s needs, even if this requires more favourable treatment.

When I was at DA, we couldn't find a way around any of the regulations or caselaw and this does need some kind of test case to push the government on this issue - they publish an Independent Living Strategy that is supposed to promote independence and choice whilst similtaneously implementing a policy without carrying out a disability equality assessment and a policy that clearly and systematically discriminates against disabled people who require stay-over carers.

CH/4018/2007

Sun 23-Aug-09 08:11 AM by Kevin D

I'd be cautious about relying on CH/4018/2007. Based on the legislation referred to, it appears to be pre-LHA (reference is made the the 1987 regulations, so it seems reasonable to conclude it referred to a decision made before 6th March 2006 - i.e. before LHA came into being).

Further, if it was "exempt accommodation", the "room" arguments are potentially irrelevant.

In my view, CH/4018/2007 only has relevance if it was decided under the "Maximum rent" legislation in place immediately prior to LHA.

we have just succeeded in an appeal on this issue on behalf of a 'severely disabled person in need of continuous care and supervision', made on human rights grounds.
the housing benefit regs restricting to size criteria were disapplied by the tribunal on discrimination grounds contrary to Art. 14, with Art. 8 and Art.1 of first protocol also invilved.

the class of persons discriminated against was narrowed down by the tribunal to the above. we're delighted by the tribunal's decision, and waiting now to see whether there will be an appeal. the decision was carefully worded and makes clear that it is based on the circumstances of the particular case, so i think there may not be a challenge.

Excellant news jj, well done. Would be good if you could share the submission maybe (anonymised of course).

In some ways, it would be useful for DWP to appeal your decision so that some definitive caselaw comes along but I can understand why you would not want that to happen

I congratulate you on getting a favourable decision for your customer. However I am having great difficulty in establishing how the decision could have been made. I have looked at the articles said to support the decision along with some caselaw but I really can't see how they relate to the provision in question. I would be really interested in seeing the statement of reasons.

thanks paul : ) it was the case you referred to us, which was particularly strong in terms of need.

we just got the decision yesterday and i'm still taking it in. i'll gladly share and can probably do better than my submission when i know what worked and what didn't. we were very fortunate to have a very good tribunal judge. : )

to be honest, i felt very unclear technically about how the tribunal could remedy the matter, assuming the HR arguments were accepted, and had been expecting this to be resolved in the Upper Tribunal anyway. the wording of the decision throws a new light on the practical application of HR law, for me, anyway - quite a learning curve, and whilst i had thought the LA/DWP would be bound to appeal, now see that it ain't necessarily so.

i know there's a lot of interest in this problem, so i'll fill in the gaps when the appeal period clears...

phew!

Could you please advise which Housing Benefit regs were "disapplied"?

Was this case subject to Lha? if not which regs were used by the La to decide Hb?

thanks in advance

it was an LHA case and reg 13D para 3 was disapplied because it is not possible to read and give effect to the provision in a way which is compatible with the Appellant's Convention Rights. The tribunal decided that the maximum rent in the Appellant's case is to be determined on the basis that she is entitled to accomodation with 2 bedrooms.

Apologies for coming late to this string. Would you please let us all know where we can find a copy of this decision? Thanking you in advance