![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |
England and Wales Court of Appeal (Civil Division) Decisions |
||
|
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Gargett, R (on the application of) v London Borough of Lambeth [2008] EWCA Civ 1450 (18 December 2008) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2008/1450.html Cite as: [2008] EWCA Civ 1450, [2009] ACD 29, [2009] BLGR 527, [2009] PTSR 1434, [2009] NPC 4 |
||
[New search]
[Context
]
[View without highlighting]
[Printable RTF version]
[Buy ICLR report: [2009] PTSR 1434]
[Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
SIR GEORGE NEWMAN
CO/7684/2007
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE WALL
and
LORD JUSTICE TOULSON
____________________
R(MS NATASHA GARGETT ) |
Appellant |
|
| - and - |
||
| LONDON BOROUGH OF LAMBETH |
Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR ANDREW LANE (instructed by Judge & Priestley) for the Respondent
Hearing dates : 5th November 2008
____________________
Crown Copyright ©
Lord Justice Mummery :
Introductory
Background
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.
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).
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.
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.
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.)
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.
Construction of 2001 Regulations
(1) The applicant must be a person who is entitled to housing benefit or council tax benefit or both. MsGargett
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.
"4 The amount of a discretionary housing payment (if calculated as a weekly sum) shall not exceed, in a case where the need for further financial assistance arises as a consequence of the liability to make
(a) periodical payments in respect of the dwelling which a person occupies as his home, other than payments in respect of council tax, an amount equal to the amount of the aggregate of the payments specified in-
(i) regulation 12(1) of the Housing Benefit Regulations less the aggregate of the amounts referred to in regulations 12(3) (b)(i) to (iii) of those Regulations, calculated on a weekly basis in accordance with regulations 80 and 81 of those Regulations; or
(ii) regulation 12(1) of the Housing Benefit (State Pension Credit ) Regulations less the aggregate of the amounts referred to in regulations 12(3)(b)(i) to (iii) of those Regulations, calculated on a weekly basis in accordance with regulations 61 and 62 of those Regulations; or
(b) payments in respect of council tax, an amount equal to the weekly amount of council tax liability of that person calculated on a weekly basis."
Gargett
, did not appear in the court below. He accepts that the limit imposed by Regulation 4 applies to a DHP whether it takes the form of a lump sum payment for the past, such as for rent arrears, or a weekly payment for the future. The contention that the words in parenthesis in the opening lines-"(if calculated as a weekly sum)"- meant that the limit only applied to DHPs paid as a weekly sum is not pursued. It is agreed that those words refer to the calculation of DHP, not to the payment of it.
Gargett
's need arises in consequence of her liability to pay rent to her landlord for the accommodation occupied by her as her home.
Gargett
's arrears of rent which have accumulated in the past, as she is now being paid full housing benefit and council tax.
Gargett
is liable to make in respect of the dwelling which she occupies as her home include "payments of, or by way of, rent": see Regulation 12(1)(a) of the 2006 Regulations. That expression is wide enough to cover arrears of rent, even in a case where the rent increase has not been notified to the Council. Even if the rent increase has not been notified, the increased amount of rent is a payment which Ms
Gargett
was under a liability to make to the landlord under the terms of her tenancy agreement.
Gargett
was liable to make are "Subject to the following provisions of this regulation" : see the opening words of Regulation 12(1). The following provisions of that regulation to which it is subject contain Regulation 12(3) under which the all- important "eligible rent" is ascertained for housing benefit purposes.
The judgment
Gargett
's claim for judicial review should be dismissed.
"15. …..Whilst back payments are within the discretion of a local authority, the calculation under regulation 4 is concerned with the present shortfall. [My emphasis.] DHPs are available to assist tenants and others to remain in their accommodation by enabling them to afford the periodic rent (also some back dating based on a weekly analysis) and to make up shortfalls in certain cases, for example in the case of non-dependant deductions."
Gargett
. There was no present shortfall in Ms
Gargett
's housing benefits as she was currently receiving it in full. It followed, in the judge's view, that the Council had not erred in law in its construction of the 2001 Regulations or in the reasons it gave in its letter of 21 August 2007 for saying that it had no discretion to pay DHPs for Ms
Gargett
's rent arrears.
Gargett
's application for DHPs.
Result
Gargett
's costs of the appeal and below to be subject to a detailed assessment. It will now be for the Council to consider afresh Ms
Gargett
's application for DHP to discharge her rent arrears on the basis that it does have a discretion to make DHPs for arrears of rent, even though Ms
Gargett was currently receiving full housing and council tax benefits at the date of the application.
Lord Justice Wall :
Lord Justice Toulson: