refusal of DHP

Has anybody ever come across a refusal to pay a DHP on the ground that the claimant had a HB overpayment?

Our client is under-occupying her council house and has applied for a DHP to cover the shortfall.  When she applied for the DHP the LA discovered that the client was no longer in receipt of DLA and that she was not entitled to a waiver of non-dependant deduction she had previously been receiving.  She has now incurred an alleged HB overpayment which she has appealed, and she denies failure to disclose a change in circumstances.

Guidance states that a DHP should not be used to cover HB overpayments, however no repayments are currently being made, and the financial constraints are caused by the under-occupancy charge and not repayments.

The LA appears to have a blanket policy to refuse DHPs when there is an HB o/p, and we are considering arguing “fettered discretion”.    Does anyone have any comments on this scenario?

Does the Council have a review process for DHPs or are you talking about judicial review?

I missed the previous thread, so thanks for alerting me to it.

I take on board that where the Council owes the applicant something and the applicant owes the Council something they can be offset.  However, there is a dispute that the applicant DOES owe anything to the LA.  She has submitted a formal appeal against the decision alleging overpayment of HB.  She could win her appeal, but in this area it is taking about 18 months from decision to hearing.  She might easily lose her tenancy well before then as she cannot afford the rent shortfall.

We have already requested an internal review of the decision refusing a DHP.  The client has said that “she will take this as far as possible” so we don’t rule out JR.

The fettered discretion argument might have legs at JR but you will face two major problems.

Firstly you will have to prove that the Council has applied a blanket policy which, unless the Council comes out and admits it, will be very difficult to do. In your post you only say that they “appear” to have a blanket policy.

Secondly even if you win at JR, unless the Council has already said something along the lines of “yes we would give you a DHP if you didn’t have an overpayment of HB” then the Council can still just refuse your client’s request for a different reason.

Grateful thanks to all contributors.

It looks as though we will have to find an alternative strategy.