Getting LHA paid for an extra bedroom for a disabled child

Back in 2013 the Department for Social Development (DSD) issued guidance (Memo 3/13) on allowing Local Housing Allowance (LHA) to be paid for an extra bedroom where a disabled child cannot share a bedroom with other children for medical reasons. LHA is the method of determining how much Housing Benefit a private rented tenant will receive to cover their rent. The LHA rate for each claimant depends on the location of their property and on how many bedrooms the household requires.

Room size criteria under Local Housing Allowance rules

Under the Housing Benefit (NI) Regulations 2006, as amended, one bedroom is adequate for:

• each person who is not a child
• each adult couple
• 2 children of the same sex
• 2 children who are less than 10 years old
• a child, and
• one additional bedroom in any case where the claimant or the claimant’s partner is a person who requires overnight care (or in any case where both of them are).

What about a child whose disabilities prevent them from sharing a bedroom?

The English Court of Appeal considered the lack of statutory provision for LHA to be paid for a bedroom for a disabled child who cannot share in the case of Richard Gorry v Wiltshire Council & Secretary of State for Work and Pensions, CH/1312/2010. In that case the Court looked at the situation where a family had two disabled children, aged 10 and 8, who needed separate bedrooms due to their disabilities. The Court held that the appellants had established a ‘prima facie’ case of discrimination under Article 14 of the European Convention of Human Rights, as they were not allowed financial help for an extra bedroom to accommodate the children needing to sleep separately. The Department for Work and Pensions initially intended to appeal this decision to the Supreme Court, but later abandoned the appeal.

Guidance for Northern Ireland

Although, judgments from the Court of Appeal in England do not set a precedent for Northern Ireland, the Department for Social Development decided to issue guidance to decision makers here so that such discriminatory practice would not occur in NI.  HB Memo 3/13 is available from DSD's website. The Regulations have not yet been amended to reflect this guidance.

Advising your clients seeking extra LHA

Housing Rights was contacted about this issue by Citizens Advice Northern Ireland.  A bureau had been contacted by a client who was denied the extra bedroom despite having a disabled child who could not share and the head office asked us for clarity on the impact of the Court of Appeal judgment. We alerted CAB to the DSD guidance and armed with this information the individual bureau successfully challenged the Housing Executive's decision not to award an extra bedroom. 

The CAB case brings to light a possibility that some claimants may have wrongly been denied an award of LHA for an extra room for a disabled child who cannot share. Such claimants may instead have been advised to apply for a Discretionary Housing Payment (DHPs) to make up the difference in any shortfall encountered by needing an extra bedroom. DHPs are widely used amongst private tenants who face a shortfall between their contractual rent and the level of LHA awarded. However, in the case of a disabled child needing their own bedroom it is quite clear from the guidance that, provided the decision maker is satisfied that an extra room is needed, then an award of LHA should be made to cover the extra cost and not a DHP.

Advisers dealing with clients in this specific situation should be aware of the guidance and ensure that their clients receive the proper amount of LHA and are not asked to apply for a DHP.