INCREASING HOUSING BENEFIT ENTITLEMENT/DECREASING ARREARS

The majority of possession proceedings in England and Wales are based on rent arrears. For many tenants on low incomes or dependent on means tested benefits the ‘cause’ of the arrears usually arises from problems with the housing benefit scheme. Or perhaps just as often from problems with negotiating the benefit/tax credit scheme in general.

1.1 The Applicable Amount for Housing Benefit

Housing Benefit is calculated by reference to ‘applicable amount’ made up of personal allowance and premiums.

If claimant is on income support/income based JSA or has income less than or equal to applicable amount (and no non dependant deductions/capital) claimant will receive maximum housing benefit.

Where income is above applicable amount the difference is referred to as excess income. A taper is applied. For housing benefit taper = 65% of excess income.

Increasing the applicable amount can have the effect of either extinguishing or decreasing excess income.

Premiums

Many straight forward – triggered by other benefits. Others less well known and have complex rules for qualifying. Example of relatively new not well known premium = ‘Bereavement Premium’.

Rules for many premiums changed 2003/2004.

Reasons premium missed in housing benefit claims: claimant not on income

support/job seekers allowance or comes off means tested income benefit. Poor design of claim form – info not obtained, ignorance on the part of all parties.

(For claimants over 60 from 6th October see Pension Credit and operation of premiums)

Often missed premiums: disability premium, enhanced disability premium, severe disability premium, carer premium.

Example: claimant aged 52 in receipt of long term incapacity benefit and occupational pension. She provides substantial care for disabled mother who is in receipt of attendance allowance at higher rate .Client can only receive one ‘income benefit’ and has never claimed carer’s allowance (ICA)

For housing benefit claimant is entitled to carer premium of £25.10 added to applicable amount. Supposing excess income, entitlement to housing benefit would be potentially increased by £25.10 per week.

1.2 Non Dependant Deductions

See Regulations 61 and 63 of HB(G)R 1987.

For 2003/2004 for non dependants in remunerative work deductions range from £7.40 per week (gross income under £92.00 per week) to £47.75 (gross earnings of £293.00 or above)

There can be more than one non dependant deduction – two adult children living at home and working can extinguish entitlement altogether.

How to Avoid A Non Dependant Deduction

Receipt of DLA/AA

Most important (and most often missed method) = claimant or partner of claimant in receipt of either care component of disability living allowance or attendance allowance or registered blind – Regulation 63(6) HB(G)R 1987.

An award of even the lower rate of the care component of DLA (cooking test/reasonably require care for a significant portion of the day) is worth £15.10 per week.. It is relevant for applicable amounts as a passport to premium.

It has the magic effect of removing all non dependant deductions from date of award.

Example Mr S aged 71 lives with partner and three adult children – all of whom work. Eligible rent £95.00 per week. Total non dependant deductions £68.95. Housing Benefit at £26.05. Claimed attendance allowance in June 2002. Eventually obtains award on appeal decision dated September 2003. Entitled to full housing benefit for eligible rent plus arrears of housing benefit from June 2002 at approx £4,500.

Argue the Non Dependant’s home is ‘normally’ elsewhere

There is no definition of normally occupied but the definitions of ‘home’ and ‘normally occupied’ appear in Regulation 5 of HB(G)R 1987. Case law under Regulation 5 is of relevance.

It would seem to be the practice of the majority of authorities to apply a non dependant deduction once a person has been at address for periods in excess of 4-6 weeks. This is open to challenge.

Common disputes: people staying at a number of addresses, relatives on long stays etc.

Argue that person is not a Non Dependant as defined by the Regulations

Is the person under 18, is the person in reality a boarder, sub tenant, joint occupier etc. Is the non dependant a member of the household of another joint occupier.

Warning – check which is most beneficial.

Is the Non Dependant a Disregarded Person

Look for full time students, 18 year olds for whom Child Benefit still payable, apprentices, youth training trainees, persons detained/in prison, 6 weeks in hospital etc.

2. CLAIMS AND GETTING PAID

Frequent problem = rent arrears arising from one or any number of the following: defective claim, ‘lost’ claim, claim not determined, gap in entitlement due to alleged non return of renewal form, delays in making a decision on claim.

2.1 Claims

A claim for housing benefit must be made in writing and on a form approved by the local authority. A telephone request for a form is not an effective claim.

Regulation 72(4)(a) – Any person making claim for income support/income based JSA (from October Pension Credit) must be invited to make claim for housing benefit – now form HCTB1. This would be made at Job Centre Plus or Pensions Service Office.

Claimant can always make claim direct to local authority.

Regulation 72 sets out time and manner in which claim is to be made. Paragraph 5 details the effective date of claim. Note: for any claim to potentially be deemed defective and remediable there must have been a completed claim form or request to claim in writing.

2.2 Defective Claim/Evidence required in support of claim

Defective claims can be remedied by either completing appropriate form or supplying info requested.

Not infrequently clients have made housing benefit claims which have never been determined. Local authority when asked about this old claim argue that they are not under a duty to determine claim – they argue claim closed or made too long ago, not on correct form, did not have correct evidence/info etc.

Reg 73 = Evidence requirements – a person who makes a claim “shall furnish such certificates, documents, information and evidence in connection with the claim or any question arising out of the claim or award as may reasonably be required ... and shall do so within 4 weeks of being required to do so or such longer period as the relevant authority may consider reasonable."

As long as it can be shown housing benefit claim made authority can only avoid making a decision if claimant has been notified claim is defective (reg 72(6-9) or that claimant is required to provide further information/evidence. In both cases claimant must be given 4 weeks or longer if reasonable to provide requested documents.

Possible to re-open ‘ancient’ claims beyond 52 week maximum backdating cut off. Possible to argue reasonable to re-open claim even if 4 weeks have passed. If evidence needed to determine claim is provided with request along with reason why late, often possible to pressure authority into making a decision on claim.

Also question information or evidence reasonably required from claimant – has authority already got information requested.

2.3 Delays/Payment on Account

For private/housing association tenants. In most circumstances after 14 days duty on authority to either determine claim/make payment on account.

Regulation 91 of HB(G)R “Where it is impracticable for the relevant authority to make a decision on a claim for a rent allowance within 14 days of the claim for it having been made and that impracticality does not arise out of the failure of the claimant, without good cause to furnish such information….as the authority reasonably requires and requested, the authority shallmake a payment on account.”

Points to note:

  1. Payment is mandatory when regulation satisfied.
  2. There is no need for the claimant to request payment on account to trigger duty.
  3. The authority must have requested information, documents etc within 14 days.
  4. If claimant is asked for whole bundle of documents on 13th day the failure to provide would not reasonably be the claimant’s but the local authority’s for delay.
  5. HB Guidance Note HB/CTB 93/37 – stresses authority acts illegally if it fails to make a payment
  6. The following do not arise out of failure of claimant: unwillingness/slowness of landlord to confirm tenancy/rent payments, delays at DWP in respect of other benefit entitlement, application of verification framework.
  7. Read strictly there is not even a requirement for the claim to be effective, made by a person eligible for benefit etc.
  8. If when determined no entitlement = overpayment.

2.5 Renewal Claims

Housing benefit must be awarded for a fixed period.

When benefit period runs out, ends due to termination of income support/income based job seekers allowance or where extended payment apply, the authority must invite a renewal claim – reg 72(14).

The facts of recent Commissioners decision CSHC/352/02 all too familiar – claimant on housing benefit for number of years. Authority state renewal form sent and renewal claim invited. Claimant states never received form. Arrears accrue on rent account. Client written to about arrears – says she’s on housing benefit – investigated and advised claim expired months before. Makes new housing benefit claim and requests claim be backdated per reg 72(15). At appeal question arises as to whether form sent or received.

As the vast majority of local authorities argue so did the City of Edinburgh – “the council is not required to ensure that documents it issues are delivered” Seek to rely on s7 of Interpretation Act 1978 - where Act authorises document to be served by post (whether word used is serve, send, give or ‘other expression’) then proof of posting is deemed effected unless contrary proved.

Commissioner rejects the Interpretation Act argument. The council is required to invite an application but the regulation is silent as to how to do this. An invitation is only made if it can be said to have been received and in a manner that the recipient is able to respond.

Opens possibility of getting rid of housing benefit gaps for past periods.

2.6 Backdating

Backdating only possible for a period in which no claim in payment. You cannot backdate premiums, changes in circumstances etc to increase ongoing entitlement retrospectively – Reg 72(15).

2.7 Extended Payments

If claimant takes up work (employed/self employed) and that work is expected to last at least 5 weeks, then provided either on income support or income based job seekers allowance for previous 26 weeks, then entitled to an extended payment – reg 62A.

Will receive 4 weeks housing benefit from Sunday after notification of end of IS/JSA.

There is no requirement for a written claim – can be done by telephone. BUT must within 4 weeks notify benefit office or authority of the above change of circumstances.

  1. DECISIONS, CHANGES IN CIRCUMSTANCES, REVISIONS, SUPERSEDING DECISIONS AND APPEALS

Current decision and appeal regime has been in force for housing benefit since 2nd July 2001. See HOUSING BENEFIT AND COUNCIL TAX BENEFIT (DECISIONS AND APPEALS) REGULATIONS 2001. [DAR]

Language of revision, revising, supersession, supersede, reconsideration etc now common across benefit system. Since 1999 when introduced for other welfare benefits there has been an ongoing debate as to criteria for valid supersession or revision and the effect of a decision where no grounds to supersede/revise exist. Problem is that for every client who stands to gain by arguing there is a low threshold to re-open a decision there is a client who stands to lose if there is a low threshold to look at decisions again.

The regulations are complex and dense. It is not possible to do anything more here than provide the most cursory outline.

REVISION/SUPERSESSION – THE DISTINCTION

Revision takes effect from the date of the original decision being revised.

Supersession (for HB) takes effect from the of notification or re-determination

If a decision can be revised and superseded – it must be revised.

Example – if decision made on 12th June 2003 that the claimant is not entitled to housing benefit as of 21st December 2001 is revised in claimant’s favour, benefit will be payable from 21st December 2001.

3.1 Types of Revision

‘Any Ground’ Revisions

If the request is made within 1 month of decision claimant entitled to ‘any grounds’ revision. Can seek written statement of reasons for decision. Once requested, until provided 1 month deadline is on hold until the statement is provided. Claimant can seek revision of decision made on the basis of incorrect or ignorance of material fact(s)

There is provision for late request for a revision. Maximum backstop period = 13 months.

Revision pending appeal

Local authority can reconsider decision while appeal is pending – Guidance encourages this. WARNING – a local authority may take its sweet time pondering the reconsideration and do nothing with the Appeal

‘Any Time’ Revisions

In majority of instances it will be the local authority that initiates revision. Most common ground being decision made on wrong factual basis and decision was more favourable to claimant (ie overpayment).

Important exception = ‘official error.” Term defined by reg 1(2) DAR = error made by relevant person/authority/DWP/Inland Revenue but “excludes any error caused wholly or partly by any body not specified…in this definition and any error of law which is shown to be an error by virtue of a subsequent decision of a Commissioner/court.”

Points to note:

  • Official error includes error of law. It is only a later decision of commissioner or court that is excluded. The key is to find pre-existing decision to support your point.
  • Who made the error? Is a neighbourhood office/one stop shop providing a service relating to housing benefit either directly or indirectly.
  • The error must have had a material effect on the decision.
  • There is no limit as to how far back you can go.
  • If an ‘Any Time’ review is requested is the authority obliged to carry out revision. 4(7) of DAR states the authority ‘may’ revise. What if authority refuses - See reg 18(3) of DAR provides right of appeal against notification that an authority is not revising a decision – alternatively seek judicial review.

3.2Decisions and Notification

Reg 77 and Schedule 6 provide that all persons affected by a decision must be notified of the decision and the minimum information the authority must provide in its written notification.

High proportion of notifications fail to meet the above requirements. Case law on flawed decisions is lenient – court looks at substance not form. Key area of dispute = overpayment decisions – can argue stricter test.

Once a decision has been made it can only be changed if:

  • Correction of accidental error
  • Revised
  • Superseded
  • Appeal tribunal, commissioner or court alters decision on appeal.

3.3Changes in Circumstances/Changes to entitlement

Reg 75(1) of HB(G)R “…if at any time between the making of a claim and a decision being made on it or during the benefit period there is a change of circumstances which the claimant or any person by whom or on whose behalf sums payable by way of housing benefit are receivable, might reasonably be expected to know might affect the claimant’s right to, amount of or receipt of housing benefit, that person shall be under a duty to notify that change of circumstances by giving notice in writing to the designated office.”

Points to note:-

  • There must be actual knowledge of the change of circumstances.
  • The threshold to trigger the duty is low – ‘might have effected’
  • The requirement is to report any change rather than assume the change is not relevant
  • The requirement is to notify in writing

Changes in circumstances should be reported within 1 month of the change. Depending on change of circumstances local authority may end benefit period or alter entitlement (normally by way of supersession taking effect the beginning of next benefit week)

If change reported late and disadvantageous to claimant – superseded as of date change of circumstance should have been notified. (Arguable authority can carry out ‘any time revision’ – claimant loses in any case)

Late notification of change of circumstances that would increase entitlement – change takes effect from Monday after claimant notified the authority.

4HOUSING BENEFIT APPEALS AND DELAYS.

Most decisions that a claimant can seek a revision of can also be appealed. Time limit one month from date of decision.

Where appealed – policy of most authorities is to then ‘reconsider’ and issue reconsideration decision. A reconsideration is a revision. If the revised decision only partly in claimant’s favour need to make a further appeal.

Appeals Service state that from date of requesting appeal to hearing is often more than 30 weeks.

Many authorities delay processing appeals and claim someone is reconsidering-

If urgent – Ombudsman – or JR/Human Right Act challenge – delay and Article 6. Threats of JR often have the effect of having decision altered in your client’s favour

After Appeal

Unlike DWP local authorities seem to take a loss at an appeal tribunal as a personal affront. They routinely request written statement and request leave to appeal. Can put the claimant in limbo as positive decision not implemented.

Graham Tegg

Hodge Jones & Allen

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