Asking for proof that something hasn’t changed.

Just out of interest, really.

1   We send out letters to claimants on their dependants’ 18th birthdays asking if the dependant is still in f-t education and if the claimant is still getting CHB for her/him.  Some assessors ask for proof that CHB is still being paid.

2   We send out letters around Maytime asking if claimants’ occupational pensions have changed.  Some say that they haven’t, so we ask for proof that the occupational pension is still the same.

I say that asking for these proofs is wrong (and a waste of time) because claimants are not obliged to prove that something HASN’T happened, they’re only required to provide evidence of changes.  Am I right?

Firstly, you shouldn’t normally be asking for proof of CHB, recent circular (can’t remember the number off the top of my head) was very explicit about that.

On the general point, I personally agree with you that asking for evidence of something that hasn’t changed, where there is no evidence or indication to the contrary, is of no real value.

However, there have been a couple of commissioner’s decision giving tacit support to LAs occasionally ensuring that benefit continues to be paid correctly. So I don’t think it is right to say that claimant’s are under no obligation to provide evidence where it is requested for income that has not changed, as long as the request is reasonable.

If, however, you are writing to a claimant every May to request evidence of a pension that has never increased I think it would be hard to argue that the request for evidence again this May is reasonable.

This is actually much harder to answer than it would seem at first glance - consider this to be free consultancy!

On the face of it, clmts are only legally required to notify LAs (or the DWP) of a change in circs if the change is one “...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, the amount of or the receipt of housing benefit…”.  HBR 88(1) applies along with its CTB and “pension age” equivalents.

Note that the test is person specific - it cannot be applied to the so-called man-in-the-street; it must be applied to the individuals in question.

From that, two things can be immediately seen:

1)  Contrary to the perceived “wisdom” of some LAs, there is no requirement to notify ALL changes - this was confirmed in CH/3208/2008.

2)  If a clmt knows a change does not change benefit, or if the clmt cannot be expected to know a change affects benefit, there is no legal obligation for the change to be notified. 

So, on the face of it, there is no requirement for a clmt to provide notification that s/he HASN’T had a change in circs.  Also, there is no express mechanism in law for “interventions”.  In CH/1116/2007, Cmmr Levenson (as was) expressly observed there was no power to “review” benefit.

In addition to the above, LAs cannot ask for info / evidence that doesn’t exist (see (R(H) 1/09) and a clmt cannot normally be required to prove a negative (see CH/0163/2003).

So, what are the legal possibilities for a LA proactively seeking an update on a clmt’s circs?  In my view, all such options are pretty weak but, to date, none has been explicitly challenged.  HBR 86 provides the power for LAs to seek “...such certificates, documents, information and evidence in connection with the claim or the award, or any question arising out of the claim or the award, as may reasonably be required by the relevant authority in order to determine that person´s entitlement to, or continuing entitlement to, housing benefit “.

Some take the view that the wording in HBR 86 is so widely worded that it can be interpreted as supporting interventions.  There are also several CDs/UTDs where Cmmrs and UTJs have seemingly accepted interventions are lawful.  However, to my knowledge, there has been no express challenge to the legality of interventions and, therefore, it hasn’t been explicitly ruled on.

One thing is for certain.  Requests for an interview, or visit, do not count as “information requirements” and therefore do not fall within HBR 86.  This is important because it means HB/CTB cannot be terminated simply because a clmt fails to attend an interview or won’t let a visiting officer into his/her premises.  If a LA wants to end benefit it will either need to request info that is relevant to determing benefit entitlement (such as income / occupancy / rent / occupiers etc), or, draw an inference about relevant circumstances - bear in mind that inferences must be reasonable and cannot be based on a whim, or “policy” or “procedure”.

Just to be clear, a LA can certainly ASK a clmt to be interviewed, or visited, but an interview cannot be enforced and although a visit may be helpful in cases where occupancy is an issue, entry into the premises also cannot be enforced.  LAs should not try to imply that a clmt is “required” to attend an interview nor that entry into a premises is “required”.

Cases where visits and “interventions” have been at issue are now myriad.  The one legal authority that offers the most detailed analysis on visits and interventions is CH/1602/2008 - this has the advantage of considering several other earlier authorities).  At first glance, it seems to say a visit can be insisted upon.  In my view, it merely confirms the right of an LA to request a visit - there is still no power to insist on entry.

In the specific scenarios you mention, turning age 18 is not a change in circs.  The relevant change(s) is whether or not the deps / non-deps are still a young person / in FT ed / other etc.  Bear in mind the onus is on the clmt to notify the LA of such changes BUT, this will also be dependant on a) the instructions given to the clmt (e.g. by way of notification letters and b) what the clmt can reasonably be expected to know.

For the PP cases, where a clmt has made an express statement that their PP is unchanged (assuming your original outgoing letter stated the amount(s) in question), I can see no justification in requiring further evidence unless the LA has a legitimate doubt about the clmt’s statement.  If the letter sent to the clmt by the LA DOESN’T clearly set out the info the LA holds, a clmt could easily, quite innocently, say there is no change - there is no reference point.  In the latter circs, any subsequent o/p *could* be subject to an argument it was caused by an error on the part of the LA (it will depend on all of the facts as to whether it is recoverable).

The above is meant to be constructive and, hopefully, it will help.

CH/4390/2003 is one of the cases often cited as giving tacit authority for interventions.

In this case the Council wanted to confirm that the claimant was still occupying a property, so it fits quite well with Council’s obtaining evidence of something that hasn’t changed.

11.  In my judgment the tribunal chairman was justified in holding on the facts before her that the requirements imposed by the council in this case had been reasonable and within their powers under regulation 63, and it was the claimant and her husband that had been unreasonable in refusing to comply with them.  It is well within the bounds of reasonableness for an authority or the Secretary of State to require evidence and information to substantiate or confirm a person’s entitlement to be given not only by completing the normal printed forms but also from time to time in the form of a signed statement given in response to direct questions from a council or departmental officer at a home visit; supplemented if necessary by visual demonstration that the claimant is indeed continuing to occupy the property in a normal manner, and has not for example sub-let or parted with possession in a way that could prejudice their right to the benefit.  As the tribunal correctly recorded, the authority has no right to insist on entry into a person’s home in this context, but that is a different question.  Here the council had been at pains to assure the claimant and her husband more than once that it was not seeking any enforced entry, and the eventual interview after the tribunal hearing in fact took place at the claimant’s door.

Notably, CH/4390/2003 doesn’t analyse whether or not interventions are lawful.  Equally notable is the complete lack of legislative reference, let alone analysis, in support of the presumption that it is reasonable for the DWP and/or LA to seek a written statement that a clmt has NOT had a change in circs.  Importantly, it *may* be arguable that the power DOES exist for DWP benefits - the regs are different when compared to HB/CTB.  But, for HB/CTB, I am far from convinced. 

Morally, it seems perfectly sensible that LAs should be able to “review” awards.  To put it beyond doubt, all it needs is an easy peasy insert into the regs to put it beyond doubt.  And it really would be that easy.  Of course, that would leave a lot of bureaucrats twiddling their thumbs with no “ambiguity” to offer non-binding advice on.

I witnessed first hand a LA visit a few years ago (from a clmt’s perspective).  The clmt had already been notified of an award of HB/CTB.  The LA THEN sent a VO demanding entry.  The VO was asked to provide the legal basis for the request.  The VO responded by saying that if s/he was not allowed entry, no payment would be made (bear in mind the decision to pay had already been made and notified).  The VO was informed in no uncertain terms that she was a) exceeding her authority, b) attempting to intimidate a clmt and c) had no legal basis on which to withhold payment as a formal awarding decision had already been made and there had been no notifiable changes in circs.  The clmt also refused to sign a statement that there had NOT been a change in circs - no legal requirement to do so).  The LA then sat on the payment for 3 weeks before finally, in light of the threat of formal complaints and JR as well as perhaps realising the complete lack of legal justification for its threats / action, benefit was paid.  Oh yes; as an aside, I was that claimant.  I dread to think how difficult it is for other claimants who are/were not fortunate enough to have the knowledge I had.

Topic has moved slightly to generality of interventions, R(H) 4/08 again appears to give tacit support to interventions (or reviews) with a little more discussion of statute.

To reiterate, however, that I am NOT arguing that it is fine to ask for evidence that something has not changed.

Hi robzrob

could you contact me to discuss your role at Cornwall Council? .(JavaScript must be enabled to view this email address)

You appear to be one of the few in that organisation who does not want to penalise claimants as I have seen many examples of where the highest non-dependant deduction is applied just because a young person has reached 18 even though they are still dependant.

Circular HB/CTB G1/2011 refers to the requirements to see proof of child benefit. Child Benefit does not cease when a person becomes 18 so their is no logic in requesting this information -it ends according to the school leaving date.

Thanks

Alan