Two bedroom LHA rate for person with a disability

The definition of “member of a couple who cannot share a bedroom” in reg 2 of the HB regs (as referred to in reg 13D) includes that they are:
(a) [someone in receipt of a relevant disability benefit,] and
(b) “whom the relevant authority is satisfied is, by virtue of his or her disability, not reasonably able to share a bedroom with the other member of the couple”

The LA might be “satisfied” by some evidence other than a GP’s letter, but they surely need something to go on. The disability benefit on its own isn’t an automatic qualifier.

Not sure how to get an HB ‘decision in principle’ on this before moving, it seems more like a housing law question?

I think the point is that the housing officer isn’t responsible for determining your clients’ entitlement to the two bedroom rate. Somebody else will decide that later when your client has actually moved into a property where the issue is material to their entitlement.

The housing officer is trying to assist your client into suitable (inc. affordable) property and they are doing the assessment based on what they can predict about your clients’ benefit entitlement. Whilst you might well think that your client has a strong case for being awarded the two bed rate, the housing officer can’t know that this will be awarded and no mechanism exists to obtain a binding decision in advance. If they assisted your clients into a two bed property and the two-bed rate were not awarded, they would be at risk that your client would say that the new property was also unsuitable and the LA would have no recourse.

I don’t think there is a great deal of significance to the doctor’s letter thing. I think this is just something of a sop / compromise. If the doctor produces a letter which says “yes they definitely can’t share a bedroom”, then that may be enough for the housing officer to feel they can wash their hands of the issue and if it all doesn’t work out they can say they were misled by the doc.

Perhaps it might be a little clearer if we were to pretend that your client had a pending PIP claim rather than the issue being about whether or not they can share a bedroom. If they were to say “I can afford that property as I will surely be awarded PIP”, you would quite understand why the LA would not be comfortable proceeding on that basis.

From a housing law perspective, I am not sure there is a fantastically neat way to challenge the issue.

The relief duty is by its nature discretionary. The LA must take ‘reasonable steps’ to assist in resolving homelessness but it is generally for the LA to decide what those steps are. These steps should be recorded in a personalised housing plan. There is the prospect of requesting an internal review of the steps that the LA will take under the PHP so perhaps if this assistance is one of the steps on the PHP, there could be some scope to bring a formal review. But it doesn’t work like a benefit appeal - you don’t have the right to bring it to an independent tribunal, just a more senior officer. If the LA upholds its own decision, then appeal is only on the grounds of an error of law.

At first blush, I would think that the LA can probably get away with saying “we need to be satisfied that the property is affordable before devoting resource to securing a tenancy and we need to assess that objectively - we can’t make the decision based on what a benefit adviser might reckon about future entitlement”.

It might be the sort of thing that you can push a little further informally - perhaps it might help if you can explain how your client could use their disability benefits to help with any top-up if the two bed rate were to be refused, or you might see if your client could sign some sort of waiver saying that they understand the risks involved.

The other point is that if the LA has accepted a relief duty to your clients and (as you say) has found them to be in priority need, then it will owe them a duty to secure suitable interim accommodation and ultimately it will likely owe the main housing duty to them. There is a question over why your clients are in the flat at all, rather than having been offered interim - although it may be that they prefer to stay somewhere familiar.

The LA is ultimately likely to be responsible for resolving their homelessness by providing them with suitable housing. If the LA is accepting that they have a need for two bedroom housing from a housing point of view, then it is going to need to figure that out somehow eventually.