Where do I start?

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    We had a case where a customer went directly to her MP regarding whether or not she would qualify for an additional bedroom for her disabled son before the ink was dry on U2/2013 and we'd had a chance to decipher what little information there was.

    We resolved the issue without any problem but in my response the MP I referenced that the correspondence and guidance regarding this matter was woefully inadequate and was causing significant work  / confusion etc etc.

    The MP wrote to the DWP for comment; lord Freud wrote back saying we issued a communication, LA's had all the information they need to deal with these disabled child cases what is their problem.

    The MP has come back to me asking for further detail of where I feel the communication from the DWP falls short of the requirements we would have liked.

    As the heading says…..where do I start?!


    Julian Hobson

    Is any of this useful ?

    Burnip Trengove And Gorry – It is our understanding that the legislation used to determine the number of bedrooms for LHA were changed with effect 1st April 2011 such that account would be taken of the need for an additional bedroom when a non resident carer stayed over (Burnip and Trengove). The legislation was not changed so that the needs of disabled children (Gorry) could be taken into account. The Secretary of State appealed to the Supreme Court in relation to the Gorry judgement.
    The Secretary of State then issued A6/2012 dated 01/08/2012 which stated –
    6. While there has been no change to the HB legislation, the Court of Appeal judgment is relevant case law and as such LAs are legally bound to apply the judgment when determining applications for HB under the LHA size criteria:

    • those who need an extra room for a non-resident carer are already able to get HB for that due to amendments made in April 2011. The judgment does not change that

    • those whose children are said to be unable to share a bedroom because of severe disabilities will be able to claim HB for an extra room from the date of the judgment
    7. When a claimant says that their children can not share a bedroom, LAs should expect to be provided with sufficient medical evidence to satisfy themselves that these factors are sufficiently weighty in the individual case to make it inappropriate for the children to share a bedroom on a continual basis. Only in such circumstances will they be justified in making an exception to the normal application of the size criteria and granting HB on the basis of an additional bedroom.
    8. LAs will then have to assess the individual circumstances of the claimant and their family and decide whether their disabilities are genuinely such that it is inappropriate for the children to be expected to share a room. This will involve considering not only the nature and severity of the disability but also the nature and frequency of care required during the night, and the extent and regularity of the disturbance to the sleep of the child who would normally be required to share the bedroom. In all cases this will come down to a matter of judgment on the facts.
    9. It should be noted that this judgment does not affect those in other situations who claim to need an extra bedroom for another reason, such as they are one of a couple who are allegedly unable to share a bedroom as the size criteria assumes or they need an extra room for equipment connected with their disability.
    10. The judgement affects the treatment of all those private sector tenants who have their eligible rent determined by either the maximum rent or the maximum rent (LHA). The judgment does not mean that the four bedroom maximum in the latter can be exceeded where a LA decides that an extra room is needed.
    11. LAs should also bear in mind that, should an appeal by the DWP be successful, the decision will need to be reversed. They should therefore consider suspending the part of the HB award that relates to the extra room allowed as a result of the Court of Appeal judgment, pending any appeal by the DWP, under Regulation 11(2)(b) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 (SI 2001/1002). Any extra help can only be made available from the date of the Court of Appeal judgement, 15 May 2012.
    12. Where the LA systems do not have the facility to suspend in part they should consider making a decision outside of their automated systems and then suspend the decision. Any decision notice should include the necessary information required by the HB regulations.
    13. These cases are all statutory appeals from the Upper Tribunal, so the anti-test case rule means the judgment has no impact on past periods in other cases. In HB, this rule is found in paragraph 18 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000. LAs are however likely to have to pay arrears in other cases where the claimant had already put in an appeal and this had been held pending the outcome of these cases.

    It has been our view that the Court of Appeal decision did not mean that authorities could allow an additional room. The decision was that the legislation was discriminatory and that it should be amended in order that it no longer discriminated. Local Authorities are in exactly the same position as Commissioner Jupp found himself in CH/3296/2003:
    ” … what remedy would the claimant have? It is within my powers as given by statute to declare a regulation ultra vires, but with what would I replace it? I do not have powers that would enable me to give any assistance to the claimant in this case, a point which is frequently overlooked by those seeking a remedy to a perceived breach of the ECHR. For this reason, finally, there is no purpose in considering further this aspect”

    Even had we followed the advice in A6/2012 the claimant would not have benefited from the additional room unless the Secretary of State were to be unsuccessful in his challenge.
    It is now widely understood that the regulations introducing the Social Sector Size Criteria echo the criteria for determining the number of bedrooms required in LHA cases. Those regulations were laid after the guidance was issued in A6/2012 and it was inevitable that the same or similar guidance would be issued. What was unexpected was the Secretary of State’s withdrawal of his action in the Supreme Court.
    U2/2012 leaves authorities in no better position than they were in following A6/2012, and it appears to us that we don’t have the power to allow an additional room in any circumstance not envisaged by the regulations.
    Disabled Child
    The decision in Gorry is not that additional rooms should be allowed for children with “severe disabilities” as stated in U2/2012.
    I quote from paragraph 64 of the judgement:
    The exception is sought for only a very limited category of claimants, namely those whose disability is so severe that an extra bedroom is needed for a carer to sleep in (or, in cases like that of Mr Gorry, where separate bedrooms are needed for children who, in the absence of disability, could reasonably be expected to share a single room).
    Clearly the severity of the disability is important but in this context it is about whether it is reasonable to expect a particular disabled child to share with a child that is not disabled , or indeed in some cases whether it is reasonable to expect a child that is not disabled to share with a disabled child, if sharing were to put either of the children at risk.
    Unless the position is made clearer it is highly likely that the needs of disabled children will be treated very differently depending upon where a child lives. The discretion that the guidance appears to afford is not welcome and it should not be for authorities to decide when the additional room should be allowed or not allowed.
    Discretion and DHP’s
    Whilst our view is that we cannot allow an additional room under the regulations in either Social Sector Size Criteria or LHA cases we can award a Discretionary Housing Payment where it appears that the claimant requires additional financial assistance.
    A DHP would only be appropriate in cases where the claimant remains entitled to some Housing Benefit. It is possible that some of those affected by the Social Sector Size Criteria would cease to be entitled to housing benefit because of the 14% or 25% reduction in eligible rent used in the calculation. The effect of this would be to apply the penalty and remove access to a DHP. Those claimants would therefore receive no protection or recognition of the needs arising out of their child’s disability.
    Those that retain some HB entitlement following the application of criteria might be able to demonstrate that they require further financial assistance in order to meet housing costs. That assessment will inevitably require an assessment based upon the income and outgoings of the household. That assessment would need to demonstrate that there was a financial need. The judgement in Gorry sets out in paragraph 55 that an assessment of what might be available from subsistence benefits to meet the shortfall is unsatisfactory:
    “For reasons similar to those which I have given in relation to Mr Burnip and Ms Trengove, I am satisfied that the housing-related benefits received by Mr Gorry should be viewed separately from the family’s subsistence benefits; and I am also satisfied that the discretionary housing payments made to him, although they provided some temporary alleviation, cannot by themselves provide the necessary justification.”
    However it is extremely difficult to understand how an authority might establish that a particular claimant requires “some further financial assistance (in addition to the benefit or benefits to which they are entitled) in order to meet housing costs” without taking into account both the income, outgoings and any capital of the household. This might result in a decision not to award a Discretionary Housing Payment because the claimant cannot demonstrate that they have the financial need.
    This might in itself be discriminatory given that those with disabled children that do require their own room, do not have a realistic option of downsizing even if a smaller property were available. Those that could occupy a smaller property have the option of moving (albeit to the private sector if no social rented property of the right size is available) and yet might be better able to demonstrate that they do not have the funds available to meet the shortfall.
    Authorities do have discretion as to the amount of DHP payable and in some cases it will not be the whole of the shortfall. The period of the award will vary on a case by case basis but will be informed by the ability or otherwise of the applicant to resolve their situation. The potential number of applicants and the value of individual awards will mean that the fund is soon exhausted, awards cannot be viewed as anything other than temporary.


    This is the clearest summation of the situation and highlights the lunacy of it. If LA’s really wanted clarity they would work to the regulations and force change… only problem is the number of people who would suffer in the interim. I have been deciding on these cases recently and am of a strong mind to now follow the rules exactly and to stop providing a convenient excuse for a bad piece of legislation, but who wants to be Billy no mates and work alone?

    nick dearnley

    That is an excellent setting out of the problem Julian.
    My opinion is also that we should work to the regulations and insist that anyone who disagrees goes through the appeal process; it will make us look as though we are ignoring the PM and DWP’s guidance and as Barry says will put many people into hardship to prove the point.

    Julian Hobson

    This Critique of the Welfare reform act from the Children’s Commissioner is worth a look at page 16.


    The various Articles referred to are here in the PDF download http://www.unicef.org.uk/UNICEFs-Work/Our-mission/UN-Convention/

    I don’t suppose any of us ever thought that our decisions following U2/2013 might contravene the UN convention!

    Trevor Kenward

    Another thumbs from me Julian, excellent summary :bigsmile:


    Julian – thanks for putting that together.

    I have responded taking much from the above.

    I will keep you informed of any developments / response as the MP has said he will raise any concerns with ministers so will see what happens.


    Your MP can tell Lord Freud that if the DWP hadn’t closed their e-mail box it would have been helpful. That’s how valuable communication is to them!


    I used this Julian to talk to a group of local headteachers about the impact of welfare reform on children and their education.


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