DHP decisions and DLA

In view of the recent case decision, Hardy, R (on the application of) v Sandwell Metropolitan Borough Council [2015] EWHC 890 (Admin) (30 March 2015):  what are the implications now?  That is:

Can someone whose application for a DHP was refused because of DLA income being taken into account now appeal that decision or does it only apply for new applications going forwards? 

Also, does the ruling hold for every council in England and Wales or are there different criteria for each nation?

I think a decision of the High Court ought to be followed by all local authorities in England and Wales.  The High Court doesn’t have jurisdiction in Scotland but then it doesn’t really matter because people affected by the bedroom tax are more or less guaranteed a DHP already in Scotland.

Reg 8 of the DHP Regs gives the Council a general power to review DHPs and Reg 6 gives the claimant the right to ask for a review, so it is arguable that the mechanism exists for this to be done without the DHP applicant having to instigate JR proceedings.

What are the chances of decisions being reviewed in the applicant’s favour?  I have contradictory thoughts about that:

- there is no standardised DHP means test: it is a discretionary scheme and if the Council chooses its words carefully it ought to be able to give judge-proof reasons for declining an award on the facts of a particular case
- but as Giles Peaker has documented on his Nearly Legal blog, there is now quite a list of UT and court decisions where the bedroom tax has survived a Human Rights Act discrimination challenge on the basis that not only is there generally an enhanced DHP funding pot in existence but that the particular applicant was awarded a DHP.  Without the DHP in the individual case, the Regulations would have been unlawfully discriminating against the disabled HB claimant
- so what is the point of a money saving reform to HB that is only lawful if the claimant gets the money paid in any case through DHP?
- well the numbers don’t add up: the amount of DHP funding notionally targeted at the bedroom tax is only about a third of the estimated amount of HB lost by disabled tenants affected by the bedroom tax.  Even if the local authority chooses to match the DWP funds to the maximum 1.5x, in some areas they would not have enough to cover the bedroom tax for all the disabled applicants in their area

Obviously the sensible solution to this mess is to scrap the bedroom tax, but in the meantime the poor old councils stuck in the middle of this will just have to try to make sure they spread the DHPs in a lawful way.  If there is a surge of new applications and requests for reviews in the light of the Sandwell case I would expect councils to adopt a more rigorous approach to the question whether the individual claimant really does need an additional bedroom, and to make more individually tailored decisions about needs and resources.  I don’t think councils will get away with dishing out DHPs like smarties until August then saying “sorry we’ve run out of money”.

Thank you for your reply.  So what would you advise people to do?  To wait and see if their council looks at their claim again or to ask for a review? 

Because this is not a normal benefit but discretionary, what I’m not clear on is: 

If a person was told they were turned down because DLA was taken into account as income (and in one county I was working in that was their normal practice),

      a) there is no universal entitlement to DHP anyway, so can the applicant ask for a review and argue that the original decision was wrong and request ask for their DHP to be backdated?
or
      b) should the person just reapply now?

With the DHP pot reducing every year, what happens next?

The reduction of the DHP pot is down to the fact that some “parachute” money notionally targeted at the benefit cap and LHA caps is being phased out.  So I think there is an expectation that local authorities will continue to award DHPs to people affected by the bedroom tax at much the same rate as now.  So people turned down for that reason might as well ask for a review, but ultimately it is a limited budget so authorities will have to ration it somehow.  They will just have to be very careful about how they look at income and expenses where a claimant is on DLA.

The judgement of the high court applies to the whole of England and Wales.  Scotland and Northern Ireland have separate court systems.  However, it would be highly persuasive in those jurisdictions.  The judgement if it only found a fettering of discretion would not bind LA’s generally in all cases.  But, because the judgement finds unjustified discrimination then unless or until it is overturned by the higher courts it will operate to prevent a LA from taking the care component into account for the purpose of DHP’s unless it wishes to find itself in court.  Judges do not make law (although that’s far from clear in academic circles).  They state the law as it is (and was).  Thus the judgement can be used as a basis for review of past decisions.

here’s a link to the rightsnet summary of the High Court decision -

http://www.rightsnet.org.uk/welfare-rights/caselaw/item/high-court-rules-that-local-authoritys-decision-to-take-dla-into-account-wh

and the decision itself -

http://www.bailii.org/ew/cases/EWHC/Admin/2015/890.html

So Nevip, are you saying that clients should ask for a review on the basis of this judgment that the law was misinterpreted or even contravened?  That they may be able to have arrears paid to them?

Thanks Ros for the link.  It was the Rightsnet summary that drew my attention to this issue which affects a lot of people if it can be applied to past decisions. 

What do I advise people in this situation?  Ask for a review - and as judgments re under-occupancy have relied on DHP being available to people who need an extra room, does this mean the whole period will be repaid or just part? 

Or do they simply reapply?

In the exercise of its supervisory function the court of judicial review is not concerned with the merits of the decision itself (as such) but the process by which that decision was arrived at.  In other words, the court is saying to the authority ‘the way you’ve reached this decision is flawed so I’m quashing it. Go back and think again.  By all means you are free to reach the same decision again but get the process right’.  This, in effect, makes all similarly reached decisions flawed and so reviewable, whether by the authority on its own initiative or upon application.  In practice, reviews will probably have to be requested.