Devolving DHP decisions

Inside Housing reports that Islington Council are devolving decisions about who gets discretionary housing payments - and emergency loans - to three housing associations. The article says that the housing associations ‘process referrals. The council rubber-stamps the decisions and processes payments’.
http://www.insidehousing.co.uk/regulation/islington-devolves-dhp-decisions-to-landlords/6528178.article

Apart from the obvious conflicts of interest, isn’t this unlawful?  One wonders also what liabilities the housing associations are creating for themselves?

s 69 Child Support Pensions & Social Security Act 2000 states that the power to pay DHPS lies with LAs.  s69(1) (b) refers to people who “appear to such an authority to require some further assistance.  These are reproduced in reg 2 The Discretionary Financial Assistance Regs 2001.  Reg 6 refers to claims being made to the local authority.  Reg 7 states that claimants can be required to provide information to the local authority (no one else) and so on.

The responsibility for deciding who gets a DHP, how much and for how long lies fairly and squarely with the LA and the local authority alone.

The legal principle of “delegatus non potest delegare” means that statutory functions of a local authority cannot be delegated to another corporate body.  Any expenditure and decisions made by the housing associations are therefore ultra vires.  Potentially there are big problems with the money paid out having to be made up from the council’s own resources rather than reclaimed from government as DHPs.

I do hope that someone from Islington Council’s legal department reads this.  Sounds like it’s one of those cases where “partnership” work has gone ahead without any proper regard to the rule of law.  It also disempowers people who wish to challenge refusal of a DHP, which is a really serious issue.

As far as legality goes, at first glance it’s covered by Article 3 of this:

http://www.dwp.gov.uk/docs/a8-2449.pdf

But then when you look at the limitations in Article 5 you see that the Order is quite deliberately drafted to prohibit landlords from exercising any function that falls within the meaning of “decisions on claims” - as to which, see Article 2 and in particular limb (d) of the definition - it covers DHPs.

It comes down to what exactly the Council’s “rubber stamping” entails.  If the HA makes a recommendation which the Council may accept or reject, this is really no different from how things used to be before the 1994 Act under which the Order referred to above was made - the early adopters of outsourced HB services allowed the contractors (in those days either Capita, CSL or ITNet) to do everthing bar the actual signing off of the decision.

I suspect Islington, of all Councils, is acutely aware of this because they were one of those early adopters - they are basically doing with DHPs what they did pre-D&CO; Act 1994 with the whole Benefits service.  As long as the Council has the final say over the decision I think it’s legal.  Whether or not it’s a good idea I do not feel qualified to comment at this stage - can see arguments for and against.

The arrangement between Islington and the housing associations is described as being on a non-contractual basis, so it appears that the safeguards in the Contracting Out (Functions of Local Authorities: Income Related Benefits) Order 2002 don’t apply.

As Pete also rightly points out Article 5 would be a problem anyway if there was a contracted out function.

No one has any problem with housing associations making representations on behalf of tenants to try and get DHPs and indeed, this is to be applauded as best practice.  The issue is when they get engaged and appear to be engaged in the actual application, processing and decision making functions as is stated to be the case here.

I wonder what the VTE will make of it !!