R (Gargett) v Lambeth LBC
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lord Justice Wall,Lord Justice Toulson |
| Judgment Date | 18 December 2008 |
| Neutral Citation | [2008] EWCA Civ 1450 |
| Docket Number | Case No: C1/2008/0987 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 December 2008 |
[2008] EWCA Civ 1450
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
SIR GEORGE NEWMAN
CO/7684/2007
QUEEN'S BENCH DIVISION
Lord Justice Mummery
Lord Justice Wall and
Lord Justice Toulson
Case No: C1/2008/0987
MR STEPHEN KNAFLER (instructed by Messrs Pierce Glynn)) for the Appellant
MR ANDREW LANE (instructed by Judge & Priestley) for the Respondent
Hearing dates : 5 th November 2008
Judgement
Introductory
This appeal is about the purpose and scope of discretionary housing payments (DHPs). It is the first time that the courts have had to consider the operation of the DHP regime. The particular issue is whether local authorities may exercise their power to make DHPs by paying arrears of rent, if the applicant is currently in receipt of full housing benefit and council tax benefit.
We are grateful for the expert assistance of both counsel, who have guided the court through the dense details of subordinate legislation. In this judgment I shall attempt to explain as simply as possible how the DHP regime works in general and how it applies to this case.
Background
Since 18 October 2004 Ms Natasha Gargett has been an assured tenant of 7 McCormick House, St Martin's Estate, Tulse Hill, London SW2. Her landlord is the St Martin's Community Partnership (the landlord.) She is a 24 year old single mother with 5 children.
At the start of her tenancy her weekly rent was £82.57. The current weekly rent is £99.33. In April 2005 and April 2006 there were rent increases. Neither the landlord nor Ms Gargett informed the London Borough of Lambeth (the Council) of the increases. That is one of the reasons why she fell into arrears with the rent to the tune of almost £3,800. As the Council was not notified about the rent increases and did not have all the necessary information to calculate the correct amount of housing benefit, Ms Gargett has not had her full housing benefit entitlement. There was a shortfall between the increased rent, which she was liable to pay, and the housing benefit, which was in fact paid to the landlord. Hence her application to the Council for a DHP to cover the rent arrears. (I will avoid the word “maximum” in respect of housing benefit, as that word is used in the relevant legislation in a technical sense that is irrelevant to this appeal).
The landlord brought possession proceedings against Ms Gargett in the Lambeth County Court. A consent order was made suspending the possession order on terms. Ms Gargett is currently entitled to full housing benefit, which is paid directly to the landlord 4 weeks in arrears. She is also entitled to council tax benefit.
Ms Gargett's case is quite simply that, in addition to her entitlement to those benefits, she requires further financial assistance to meet “housing costs” in the form of her rent arrears. She contends that the Council has a discretion to make a DHP to her for that purpose. The Council asserts that it has no discretion to do so.
The dispute arose when, on 27 July 2007, she applied to the Council for a DHP. She asked for a lump sum to pay the rent arrears. It is common ground that DHPs are in the discretion of local authorities. The essence of the scheme is straightforward. DHPs are made out of an annual budget, which must not be exceeded. The payments may be made to applicants in receipt of housing benefit or council tax benefit or both. The local authority must consider whether the applicant needs “further assistance” with “housing costs,” which include rent. The payments may be made to applicants over and above their usual housing and council tax benefits. They are usually paid 4 weekly at the same time as housing and council tax benefits. DHPs are, however, subject to limits on the amount payable. In particular the payment must not exceed the “eligible rent” as calculated in accordance with the detailed regulations. There are also specified circumstances in which DHPs are not payable at all.
By letter dated 21 August 2007 (referring to an earlier letter of 2 August which cannot be found), the Council refused Ms Gargett's application. It did so primarily on the ground that it had no discretion to make her a payment, as she was in receipt of full housing benefit and council tax benefit. (Other reasons given in the decision letter are no longer relevant to this appeal and I say no more about them.)
On 4 September 2007 Ms Gargett issued an application for judicial review of the Council's decision. She alleged that the Council had misdirected itself in construing the relevant regulations governing DHPs so as “to fetter its discretion” to make the DHP for which she had applied. It had failed to have regard to her circumstances.
On 8 April 2008 Sir George Newman, sitting as a Deputy High Court Judge, dismissed the application for judicial review. Permission to appeal was refused by him and by this court on a paper application
On a renewed application for permission to appeal on 8 July 2008 I adjourned the application to the full court with the appeal to follow immediately if permission is granted.
The application turns on the construction and application of the Discretionary Financial Assistance Regulations 2001 (the 2001 Regulations). The exercise of discretion is the subject of guidance, which was originally set out in a document produced by the Department of Social Security, the predecessor of the Department of Work & Pensions. Updated guidance was issued in March 2008
Construction of 2001 Regulations
The 2001 Regulations were made under powers conferred by section 69 of the Child Support, Pensions and Social Security Act 2000. They introduced DHPs by identifying the persons to whom DHPs may be made (Reg 2), specifying particular circumstances in which DHPs may not be made (Reg 3), limiting the amount of the DHP that may be made to the concept of “eligible rent”, as used in the Housing Benefit Regulations (Reg 4), conferring a discretion as to the period for or in respect of which DHPs may be made (Reg 5) and prescribing the form, manner and procedure for claims (Reg 6).
The reader of this judgment does not need to know the detailed wording of each regulation. They are fully set out in the judgment below: [2008] EWHC 663 (Admin). For the purposes of this appeal only the precise wording of Regulations 2 and 4 is important. As for the other regulations it was clear by the close of the valuable discussions with counsel that the scope of the dispute had narrowed considerably. It is possible to state, with reasonable confidence and brevity, some preliminary propositions about the scope and purpose of the 2001 Regulations and how they operate in practice.
(1) The applicant must be a person who is entitled to housing benefit or council tax benefit or both. Ms Gargett satisfies that requirement of Regulation 2.
(2) Regulation 2(1)(b) also provides that applicants must appear to the Council “to require some further assistance (in addition to the benefits to which they are entitled), in order to meet housing costs.” Thus DHPs are not simply benefits payments available to applicants at the Council's discretion. “Further assistance” presupposes that the applicant is already in receipt of other benefits and that “further” benefits are required to meet specified liabilities of the applicant i.e. “housing costs.” The Council submits – and this is controversial – that as a matter of construction this clause requires that there should be a continuing shortfall between the benefits which the appellant is currently receiving and the housing costs which she is currently incurring (up to the eligible rent then applying).
(3) “Housing costs” are not defined by the 2001 Regulations. It is, however, rightly accepted by the Council that a claim for a DHP to pay the applicant's arrears of rent is not included in the lengthy list of liabilities that are expressly disallowed for further financial assistance by Regulation 3 (a) to (l). As a matter of ordinary English usage arrears of rent, carrying with them the risk of repossession, are capable of being “housing costs” within the 2001 Regulations.
(4) Under Regulation 5 the Council has a very wide discretion to restrict the period for or in respect of which DHPs may be made. It is accepted by the Council that that period may be either a past period or a future period. If it is for a past period, the DHP may take the form of a lump sum payment.
I now turn to regulation 4, as amended. It sets a limit on the amount of the DHP...
To continue reading
Request your trial
-
Michael Otobo v Slough Borough Council
...to refusing Housing Benefit was contrary to this court's decision in Gargett, R (on the application of) v London Borough of Lambeth [2008] EWCA Civ 1450 about failure of the Local Authority to exercise its discretion to make a discretionary housing payment. 27 However, it is quite clear fro......
-
R Otobo v Slough Borough Council
...That would seem to deal with grounds 1–5 but I will in any event look at each separately. 13 Ground 1 relies on the case of R (Gargett) v LB Lambeth [2008] EWCA Civ 1450. But that case is materially different; it concerns DHPs to a person who is already in receipt of Housing Benefit, and th......
-
What's the Use of a Hashtag? A Case Study
...cit., n. 61, para. 53; thus effectively binding the council to pay DHPuntil that time.64 See, for example, R (Gargett) v. Lambeth LBC [2008] EWCA Civ 1450; R(Winder)v. Sandwell MBC [2014] EWHC 2617 (Admin); R (Hardy) v. Sandwell MBC [2015]EWHC 890.65 [2016] EWCA Civ 29.66 id., para. 53: `MA......