dHP, arrears and entitlement to HB/UC

I have a client who is exceptionally vulnerable. He lived off of PIP solely for around 9 months after he failed to attend an ESA assessment. We have got UC in place and I made a claim for dHP to cover the rent arrears for the period he was on PIP. This has been turned down on the basis that he was not entitled to HB/UC at the time. I know rent arrears can be paid by dHP even if the current HB/UC is covering the rent in full (http://www.bailii.org/cgi-bin/markup.cgi doc=/ew/cases/EWCA/Civ/2008/1450.html&query=title++Gargett+). This case states that:
In relation to preventing duplication of provision, part of the decision states “housing benefits already paid for past housing costs must also be deducted. This is implicit in the purpose for which DHPs may be made. Otherwise the
applicant would be receiving DHPs for housing costs that have already been met by past payment of housing benefits. It would not be a case for a need for “further” financial assistance to meet “housing costs””.

In principle yes this is possible, but the DHP needs to be based on a shortfall between HB/UC during the period when the claimant was entitled to it. The period when no housing costs benefit was paid cannot be looked at.  That was the point made in the Gargett case.

DHP can only be paid for periods where there is an entitlement to HB or UC and there is a rent shortfall, so your client cannot receive DHP for the period between the HB and UC claims.

If your client is within 13 months of his prior HB claim ending, a request for late revision could be made as well as challenging the failure to attend WCA decision?

HB Anorak - 09 April 2019 08:50 AM

In principle yes this is possible, but the DHP needs to be based on a shortfall between HB/UC during the period when the claimant was entitled to it. The period when no housing costs benefit was paid cannot be looked at.  That was the point made in the Gargett case.

I’m not sure that’s entirely correct. That point wasn’t taken in Gargett - and doesn’t seem to have been at issue because Ms Gargett did have an old claim with a shortfall. Rather, Gargett decided that a DHP could cover a previous periodic shortfall regardless of whether there was an ongoing shortfall at the time of the decision.

I would agree though, that a DHP for rent arrears can’t cover a period when there’s no HB or UC, because it will be a payment to cover a periodic liability, even though it looks like a lump sum payment. This point; about rent arrears being a periodic payment because it’s how the liability arose, rather than how it is dealt with that matters, was conceded and agreed in Gargett (at 17).

It’s interesting to see what the DHP guidance published by the DWP says about using DHP for rent in advance. It states that a lump sum payment for rent in advance is okay. It’s hard to square this with the idea that a DHP for a periodic payment cannot result in the aggregate HB/UC and DHP exceeding the eligible rent - clearly you are being paid double rent in that case. This is explained away by suggesting that rent in advance is a one off lump sum payment. Conceptually it’s hard to see how a one off rent payment in advance to secure a tenancy is any different from a one off rent payment in arrears to save a tenancy. Ultra vires or pragmatic?

I know I don’t need to suggest this to Justin, but a homelessness application can often help to sharpen a local authority’s focus when applying DHPs.