I have some clients - a couple wanting to move into private rented accommodation. One client has disabilities and the partner is their full time carer. Due to her disabilities they need separate bedrooms and have now signed a tenancy agreement for a 2 bedoom property.

They have been told they will only be eligible for the 1 bedroom rate of LHA, although a decision on their claim has not yet been made. As I understand it the criteria for the number of bedrooms needed under LHA is analagous to the old rent officer size criteria where the rent officer, it appears, is not permitted to take account of personal circumstances such as disability. On the face of it they are going to have problems with this as they will be left with a significant shortfall between the rent and LHA if they are only eligible for the 1 bedroom rate.

Does any one have any bright ideas on a striaght forward challenge that they should be entitled to the 2 bedroom rate and/or any potential human rights challenge on incompatability?

I am afraid that this has been discussed a number of times and, as far as I recall anyway, no one has put forward an argument that would appear to have much chance of success.

IMO, an HR challenge would be difficult following R(H) 6/05

In my judgment Mr Sales is right. The particular housing benefit with which we are concerned falls outside the ambit of Article 8 because there is no obligation to provide the benefit and its provision is not the state demonstrating its respect for a claimant’s home in the way that parental leave allowance was held to demonstrate respect for family life. I reach this conclusion without regret because it seems to me
to be important that the adjustment of the details of anti-abuse provisions in relation to a state benefit should so far as possible remain for scrutiny and re-consideration by
Parliament and not by the courts.

CPAG were looking for a test case on this a few years ago but it seems to have droped off their list now. You might wish to contact them for further info'.

The LA could of course make a discretionary housing payment to increase the LHA to the 2-bedroom rate, depending on the circumstances.