Where a local authority has power to award DHPs, it does not automatically follow that the local authority must do so. Local authorities have broad discretion as to whether to award DHPs to each applicant. Challenging a refusal to exercise that discretion can be difficult, but there are some key points to look out for when trying to decide if a negative DHPs decision may be susceptible to challenge.
Local authorities must exercise their discretion lawfully. To do so local authorities must not breach any statutory restrictions on their discretion.
For example, if a local authority takes into account the receipt of DLA or PIP by any member of the applicant’s household in working out whether an application requires further financial assistance with their housing costs, then it is arguable that the local authority has acted in breach of s73(14) of the Social Security Contributions and Benefits Act 1992 and therefore unlawfully.
Paragraph 3.9 of the DHP Guidance Manual states:
When deciding how to treat income from disability-related benefits such as Disability Living Allowance (DLA) or the Personal Independence Payment (PIP), you must have regard to the decision of the High Court in R v Sandwell MBC, ex parte Hardy. This decision places an obligation on LA to consider each DHP application on a case by case basis having regard to the purpose of those disability-related benefit and whether the money from those benefits has been committed to other liabilities associated with disability.
Local authorities must also properly take into account any relevant policies and guidance when making DHP decisions. Relevant policies and guidance should be highlighted in the application and if the subsequent decision fails to take them properly into account landlords should challenge it.
For example, if a local authority has a homelessness strategy which emphasises homelessness prevention, then the local authority will need to take that policy into account when deciding whether to award DHPs to an applicant at risk of becoming homeless.