Thursday, 12 July 2012

New Discretionary Housing Payments Policy; It's, Erm, Not Brilliant

When I asked my big question about Housing Benefits and DHPs to full council, Cllr Chapman's response mentioned 'local policy and criteria' for awarding DHPs. As I had previously been told there was no such local policy I was intrigued and fired of a FoI request for what must be a new development. Well folks, in defiance of my honest but admittedly cynical expectations, here it is.

It starts off well, explaining the context and background of DHPs and encouragingly, makes the early point that DHPs should not be seen in isolation but as part of a wider strategy to prevent homelessness and maintain housing. Of course saying it is one thing and doing is another but the starting point is actually writing it down clearly and you can't argue with that.

It sort of goes downhill a bit from there. The section detailing the start date of a DHP award (see p5) is very confused. In particular, para ii) gives the incorrect impression that a DHP can only be backdated if a claim is made within a month of the mainstream housing benefits start date. In fact, there is no legal bar on backdating a DHP but, within the discretionary framework, authorities are entitled to set out situations where doing so may be a lower priority than paying for current shortfalls. NCC's policy doesn't even attempt to do that.

This lack of a 'priorities' framework is a repeated problem throughout the policy. It's structure essentially sets out the various problem areas that DHPs may be used to help alleviate, such as young people finding accommodation or preventing homelessness, then goes on to stipulate situations where they would consider a DHP, followed by situations where they would NOT consider one.

This is a massive issue. In discretionary schemes like this you cannot issue such prescriptive guidance, in legal terms it is known as 'fettering discretion'. It goes against the principle that all cases must be judged as individuals  on their own merits.

What you ARE supposed to do is to set out factors which may increase or decrease a person's priority for a DHP. The decision uses this guidance to determine the applicant's overall priority and depending on the budget position, uses this to decide whether to award a payment or not. Of course, you must also recognise that people may present situations that are outside your 'priority' definitions and the priority/non-priority should not simply be shorthand for will/won't get a payment. NCC's policy doesn't begin to do this, it just says 'yes you will get one if you are in list A' and 'no you won't if you're in list B'. Unfortunately, this makes it totally unfit for purpose.

Within this there are other bizarrities. For example, in the 'Young Individuals' section, the list of those who won't be considered for a DHP includes those in 5 bed accommodation who haven't faced a restriction to 4 bed HB levels (one of the standard Tory HB cuts which came into play this year). I mean, it's not impossible I suppose but how many 'young individuals' are going to have families so large that they need a 5 bed house?

A more basic error occurs where, in a couple of the lists where a DHP would not be considered (e.g. p8 and p12), one of the categories is where the council has good reason to believe that the tenancy is not on a commercial basis. The thing is, a tenancy not being on a commercial basis means that a person should be treated as not liable to pay rent and as such wouldn't be entitled to housing benefit at all (see Reg 9(1)(a) HB Regs 2006). As one of the basic entitlement conditions for a DHP is that there must be some entitlement to housing benefit, so in the circumstances where a claimant's tenancy is not considered to be a commercial one the question of a DHP is simply not going to arise. This just gives the impression that the policy was written by someone who has no idea of what they are talking about.

It sort of goes on like that. The last issue that concerns me is that there is no mention of budget profiling throughout the year i.e. planning in advance to ensure you don't spend the lot in three months and take into account known seasonal factors etc. All we get is -

"On a quarterly basis a report detailing all DHP applications received, decisions made and DHP fund available is forwarded to the Head of Service for  approval."

Yeah right, like she's going to bother reading that. When I worked at NCC one HB worker described handing a report to Lisa Black (for it is she) as a reason for nothing else happening on the initiative. Funnily enough, that was about DHPs too, back in 2006.

On the plus side, they have at least got a policy and its existence is useful for anyone trying to challenge a refusal to pay a DHP. Who knows, maybe they pulled their fingers out in response to the fuss I made on here? If so, maybe they'll read this post and look at it again.

In the meantime, anybody who IS challenging a DHP decision, my advice is to get a good lawyer on board and consider challenging the whole policy via Judicial Review.

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