Refusal of DHP

MAC in private rented receiving 1x PIP, 1 x State Pension, 1 x CA, and 1 x non-dep who also gets PIP. Their UC is £344 p/m. There are some arrears they are repaying that arose due to claimants (then on ESA/HB) not realising that they would have to claim UC when the older person reached SPA. Refusal of DHP states:

“A DHP can only be considered where a shortfall exists between the rent charged and the Housing Element allowed.

I note that the rental charge at your property is £400.00 pm and you would satisfy the conditions to receive housing Allowance at the two bedroom rate which at present in [LA] is £449.99.  The Housing Allowance payable cannot be paid at a figure more than your rental charge therefore you can expect to receive Housing Allowance of £400.00 pm with no rent shortfall to consider.  Therefore, there is no shortfall to consider.”

My thoughts were that this is just wrong but an esteemed colleague with more experience in this area thinks it is an understandable approach from the LA.

Any thoughts?

I think you are both right.  Legally, the amount of a DHP cannot exceed the amount of the UC housing element, but that is not the same thing as saying there can only be a DHP if the housing element is less than the full rent.  A shortfall between the housing element and the rent (due to eg bedroom tax or LHA rate not covering full amount) is certainly one of the more common reasons for awarding a DHP, but DHPs can be awarded for other reasons such as exceptionally high living costs that make it difficult to afford housing costs out of standard benefit rates.

On the other hand, I can also understand why the Council might think this is not an obvious candidate for a DHP at first sight.  There is no current income shortfall on the face of it.  Their pitch will need to be: paying off arrears for the period while we weren’t on any HB or UC is making it difficult for us to meet our current rent right now and our non-dep cannot afford to chip in either.  Could go either way and refusal is probably not irrational to JR standards.

Many thanks HB Anorak, helpful as ever