LHA bedroom entitlement challenge - any caselaw

I am wondering if anyone has any caselaw that can help my client.

He is privately renting with his wife and non-dep daughter in a 3 bed property.  He is currently only getting the 2-bed rate as he and his wife share one of the bedrooms as the 3rd bedroom cannot be used.  He has been approved a DFG and is waiting for adaptations to have a bedroom and bathroom downstairs for his sole use.

We have requested that they apply the 3 bed rate asap but this has been refused as they are not currently sharing but we believe there is an argument that it should be possible now.

The added issue is he has a UC managed migration notice with a deadline date I hope to extend in a couple of weeks time but desperately searching for any help to argue the 3 bed rate applies now. 

Probably a long shot but wanted to see if anyone has had any similar cases.

It’s a tough one isn’t it: we cannot reasonably share a bedroom even though we do.

I think the case can be made: the Regulations refer to a person “whom the relevant authority is satisfied is, by virtue of his or her disability, not reasonably able to share a bedroom with the other member of the couple”.

Their argument would be that the current situation is unbearable and they are living in circumstances that really are unreasonable, which is why they need the adaptations.

The LHA rate is assessed based on the size of property that they are reckoned to need. A bedroom is added in for a member of a couple who cannot share a bedroom. This isn’t based on the actual logistics of what is happening in reality but what the claimant needs.

If you are stating that the DFG has been granted in order to adapt the third bedroom for his use, that seems to pretty obviously support the proposition that it is a transparent medical need.

It’s just going to be a case of appealing the decision and providing evidence of the need.

I’m not sure why managed migration automatically creates any major issues here. The LHA is functionally the same on HB and UC so the TE will be the same in either case. I suppose that if UC agree to pay three bedroom rate and includes this in the indicative UC figure, that could make a difference - but your client is not prevented from continuing with a challenge to the HB decision after they migrate.

Thank you both so much.  This was kind of my understanding and we had informally tried the argument but will formalise it in an appeal to see if this persuades them to read the regs again.  Thanks so much