Welfare Reform, with a Bedroom Tax Flavour A blog predominantly about things to do with bedroom tax, by Rob G - @Simplicitly on twitter. A full-time carer for my wifes Secondary Progressive Multiple Sclerosis. Local Authorities break the law, taking DLA/PIP into account for DHP allocations Before I start, a quick guide to some TLAs (Three Letter Acronyms) DLA/PIP - Disability Living Allowance, a benefit for disabled people. DWP - Department for Work and Pensions. LA - Local Authority, currently responsible for; HB - Housing Benefit, and; DHP - Discretionary Housing Payments. A fund to help meet rent shortfall in cases of financial hardship Lord Freud and the Department for Work and Pensions have issued advice to Local Authorities suggesting that they break the law, going specifically against the legal rulings of a case the DWP has previously lost in the Court of appeal. Freud’s ignorance of the law can be summarised in this quote from the Work and Pensions Committee Hearing into Housing Costs under welfare reform: What we have put out in guidance there is, where someone is using their DLA/PIP for care specifically, it should not be considered. Where they are not, it may be considered. That is where we have got to. Quite where Freud thinks they have “got to” is neither here nor there in terms of what the law says, as I’ll attempt to demonstrate. You can Click Here for the full text of the Burnip/Gorry Court of appeal judgement, from which I’ve tried to draw the pertinent legal points Findings by the Papworth Trust (Here) suggest that three quarters of Local Authorities are acting in contravention of this Court of appeal ruling. ”Guidance” from the Department for Work and Pensions has suggested that Disability Living Allowance (DLA/PIP) should be taken into account as income in the calculation to determine whether disabled tenants qualify for Discretionary Housing Payments (DHPs). From the Burnip/Gorry Case, Mr Justice Henderson made a clear judgement on this issue when he specified: First, I think it is necessary to draw a clear distinction between the benefits which Mr Burnip was entitled to claim for his subsistence, and those which he was entitled to claim in respect of his housing needs. His incapacity benefit and disability living allowance were intended to meet (or help to meet) his ordinary living expenses as a severely disabled person. They were not intended to help with his housing needs. This is demonstrated, in my view, not only by the availability of HB and discretionary housing payments as separate benefits with separate rules applicable to them, but also by the way in which HB is structured. So despite Freud’s opinion, and the resulting actions of Local Authorities, the Court of appeal has already made a legally binding definition of which benefits should be taken into account as ‘income’ for the purposes of whether disabled tenants are eligible for a Discretionary Housing Payment. To remove any ambiguity, in Mr Justice Henderson summed up the position clearly, including reference to subsistence benefits which can be included as income when calculating Housing Benefit (HB) and specifying that DLA cannot. I must apologise for this being the most technical legal bit I’ve included - this was part of a larger calculation over entitlement to a full amount of Housing Benefit in this case, The conclusion was that DLA should not be counted as income for either DHP or HB which are benefits awarded specifically for housing expenses.. Mr Burnip’s applicable amount included the three disability premiums which I have mentioned, while the whole of his disabled living allowance was disregarded in the calculation of his reckonable income. Thus it was only if (in broad terms) his incapacity benefit and student loan together exceeded his applicable amount that any reduction would fall to be made in the amount of his HB; and to the extent that there was such an excess, the HB rules themselves prescribed how it was to be taken into account. It would therefore be wrong in principle, in my judgment, to regard Mr Burnip’s subsistence benefits as being notionally available to him to go towards meeting the shortfall between his housing- related benefits and the rent he had to pay For some reason, Local Authorities have not been appraised of this in any of the many bulletins previously issued by the DWP as they struggle to overcome legislative and regulatory issues that arrive from the ill-informed, chaotic manner in which the Under-Occupancy Penalty has been implemented. In fact, Lord Freud and the DWP guidelines still have not taken on board what the Court of appeal ruled, and seem to be operating as if the law does not apply to them. Thanks to some details I was provided by @nearlylegal on Twitter - a solicitor - it’s clear that this precise issue, the treatment of DLA as a payment in the calculation of housing costs has actually been approved for a Judicial Review, outline details of the case can be read here. Finally, at the risk of over-extending this analysis, and tangential from the core issue of DLA consideration for DHP: Freud’s approach should be taken in context with an ill-defined desire that he and the DWP have started to express, to redefine the entire Discretionary Housing Payment structure. DHPs have traditionally been a fund of money paid from central to local government to offer people temporary, short-term help with their housing costs. The difficulties of implementing welfare reforms have meant that the DWP are increasingly relying on DHPs as a solution to numerous problems they’ve been unable to foresee or deal with. When asked by Committee Chair, Dame Anne Begg, about the necessity for disabled people to be put in a position where they must continually re-apply for help because DHPs are temporary, Freud stated: Perhaps, but we have just put in guidance to make sure it is not on a temporary basis Presumably he’s referring to vague new definitions of DHP given on the DWP website, which don’t appear to have been regulated for, discussed with LAs or given any specific context in relation to DLA. Neither do they help define how long DHPs would actually be applicable for. The problem with the DWP’s reliance on the DHP approach, is that the Burnip/Gorry judgement states specifically that DHPs are not appropriate unless they provide security: Before undertaking such a commitment [Housing], therefore, a disabled person needs to have a reasonable degree of assurance that he will be able to pay the rent for the foreseeable future, and that he will not be left at the mercy of short term fluctuations in the amount of his housing-related benefits. For the reasons which I have given, discretionary housing payments cannot in practice provide a disabled person with that kind of assurance. So, I’m going to write to my MP, and complain to the Local Government Association about the actions that LAs who are going against the law are taking when refusing disabled people DHPs. I’m going to write a letter to the Ombudsman about the implications of DWP Guidance in light of the previous Court of appeal Judgement. Predominantly, these things need to be done because the upshot of what is happening is that, as has happened with so much of the implementation of the bedroom tax, vulnerable groups of people, already poor enough to qualify for Housing Benefit, are essentially now being penalised for their illness or disability. Which means I might also write to the Joint Committee on Human Rights. I’d appreciate it if you could find your way to sending one of these bodies a message, too. As a disclaimer, The Law is not my area of expertise. Prior to the introduction of the bedroom tax, I didn’t really know anything about broader issues of housing, benefits and welfare reform either. What follows is therefore my interpretation of the intentions of the Court of appeal, although I’d like to thank Janette Canlin for helping me understand (I hope) some of the legal nuances. Similarly, in the refinement of my blog entry I’d like to thank @nearlylegal for looking over my piece and providing the link to the Judicial Review relating to DLA/DHP matters. Nevertheless, the emphasis here is are all mine, and I’m always happy to take corrections from people more knowledgeable than I. notpaying.tumblr/post/76771833703/local-authorities-break-the-law-taking-dla-pip-into
Posted on: Fri, 29 Aug 2014 16:55:35 +0000
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