Gargett, R (on the application of) v London Borough of Lambeth

Discretionary housing payments require both entitlement to housing benefit or council tax benefit and an apparent need for further assistance with housing costs. The statutory discretion is subject to the limit imposed by regulation 4 of the Discretionary Financial Assistance Regulations 2001. That limit is a method of calculating the payment, not a separate entitlement condition, but it applies to every discretionary housing payment. A payment must be tied to a relevant periodical housing-cost shortfall and cannot be used to fund an unrelated lump sum or historic arrears without reference to the present shortfall. The judicial review claim was dismissed because the local authority had no power to make the payment sought.

The claimant sought judicial review after the London Borough of Lambeth refused an application for a discretionary housing payment intended to meet all or a substantial part of rent arrears and prevent loss of her home. The Council treated her receipt of maximum housing benefit and council tax benefit as preventing an award. The claimant argued that the Regulations permitted a lump-sum payment despite receipt of full benefit and that the Council had failed to consider her circumstances and its homelessness-prevention strategy.

The central issue was whether the statutory scheme permitted the requested payment and, in particular, how regulation 4 limited the amount of a discretionary housing payment.

1. The application was dismissed. The Council’s decision was not unlawful on the pleaded grounds because it had no power to make the payment sought.
2. Section 69(1) of the Child Support, Pensions and Social Security Act 2000 and regulation 2(1) of the Discretionary Financial Assistance Regulations 2001 require entitlement to housing benefit or council tax benefit, together with an apparent requirement for further financial assistance to meet housing costs. A discretionary housing payment is freestanding and discretionary, but remains tied to the underlying benefit entitlement and housing costs.
3. Regulation 4 imposes a limit on the amount of every discretionary housing payment. The words referring to a payment calculated as a weekly sum prescribe the method of calculation; they do not create a separate entitlement to an unrestricted lump sum. The discretion under regulation 2 is therefore constrained by regulation 4.
4. The relevant calculation is directed to the present shortfall in eligible rent or council tax liability during the relevant period. Although back payments may be within the authority’s discretion, they must be analysed by reference to the weekly housing-cost shortfall. A DHP cannot be awarded as a general lump sum for a one-off housing cost, such as home adaptation, or simply to clear historic rent arrears without the required connection to the present shortfall.
5. Since the Council lacked power to make the payment, the further grounds alleging failure to consider the claimant’s circumstances and the Council’s homelessness-prevention strategy did not arise for determination.