Can a DHP be paid?

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  • #19631
    Anonymous
    Guest

    Claimant is renting a fully furnished 2nd floor property. She needs to move to a ground floor for medical reasons.

    A HA offers her a property but insists that she sign a tenancy agreement when she views it. The tenancy there starts from 5/1/09. She gives in her notice to her old LL which expires 5/2/09.

    However this new property is unfurnished and she needs to get a social fund loan to buy furniture. The DWP (as usual) are taking their time making a decision. In the meantime claimant stays at the old property.

    A request for 2 homes is made by her via her social worker. I tell the social worker that she can’t get HB on 2 homes until she actually moves to the new place. I also point out that we can pay HB for the new place after she moves in because of waiting for the loan but, crucially, she can’t get HB for the old place for the same period.

    My question is can a DHP for the old rent be paid? I don’t think so because the rent on the old place is surely not “eligible housing costs” as they cannot be met by HB. I desperately would like to pay this claimant but can’t see how.

    Any ideas anyone?

    #421
    jmembery
    Participant

    Following the recent Comms decision, the amount of and DHP payment can only be the liability on the property [b:dd874210ac]occupied as the home [/b:dd874210ac]less any HB paid. So you are effectivly prevented from paying on the “old” home.

    Jeff

    #422
    Anonymous
    Guest

    Damn, that’s what I thought šŸ˜„

    #423
    Anonymous
    Guest

    Not sure what decision Jeff is referring to, and I dont think a Commissioner would have any jusrisdiction over DHP’s, but Sir Geroge Newman’s judgement in R (on the Application of Gargett) v Lambeth was overturned by the Court of Appeal on 18 Dec 08

    The Court held that the maximum DHP is the aggregate of the maximum amounts eligible under Regulation 12. Any housing benefit entitlement paid does not have to be deducted from that maximum amount

    I agree with Jeff though that a DHP can only be paid in respect of payments for the dwelling occupied as a home, but if she is still occupying the old property and paying use and occupation chages or whatever, they are eligible costs and a DHP and HB can be paid simultaneously up to the maximum allowed under Reg 12

    #424
    jmembery
    Participant

    Stainsby is of course right that it was not a Comms Decision but a decision in the court of appeal. However Stainsby and I do appear to differ on the effect of the decision on the effect of HB paid in determining the maximum level of DHP. How I read Lord Justice Mummery’s comments in the paragraph below (Para 25 of the judgement) is that it [b:9c1ce3d8b1]does [/b:9c1ce3d8b1]require the amount of HB to be deducted;

    I know that will no doubt attract the counter that “it is only Obiter”
    but I think it is quite strong nonetheless.

    Make your own minds up.

    Jeff

    25. I should explain that, although the amount of housing benefits already received for the relevant period is not expressly specified as a deduction in 12 (3) (b) (i) to (iii), it is accepted by Mr Knafler that, by virtue of the provisions in Regulation 2 of the 2001 Regulations that DHPs that are ā€œfurther financial assistanceā€ with ā€œhousing costsā€, housing benefits already paid for past housing costs must also be deducted. That 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 of a need for ā€œfurtherā€ financial assistance to meet ā€œhousing costs.ā€

    #425
    Anonymous
    Guest

    Looking more closely at Gargett and Reg 4 of the DFA Regs., Mummery LJ said at para 32

    “32. For the reasons given above in the analysis of the 2001 Regulations the limit placed on DHPs by Regulation 4 does not prevent the Council from exercising its discretion to make DHPs for past housing costs (arrears of rent) on the ground that the applicant is currently receiving full housing benefit. The Council misconstrued the 2001 Regulations by giving the fact that she was already in receipt of full housing benefit as the reason why it had no discretion to grant Ms Gargettā€™s application for DHPs. ”

    Reg 4 refers to “periodical payments in respect of a dwelling which a person occupies as his home….”(present tense)

    It is arguable that if the person is currentlly entitled to HB for the dwelling he currently occupies, a DHP can be awarded in respect of housing costs in respect of that dwelling for any past period where “further assistance is required” subject to the limit confirmed in Gargett.

    It the person remained at the old property for a period after termination of the tenancy, HB could be paid in respect of that period for mesne profits or use and occupation.

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