Dear All

I have come across this problem several times in the last few months and am struggling to find any guidance on it.

I hope someone can help, perhaps by pointing me in the direction of relevant regulations, etc.

Am I right in thnking that housing benefit can be awarded on 'nil income' grounds even when income support is suspended for whatever reason? I had a client whose benefits were all stopped when he had a mental health crisis and failed to attend a medical assessement. Housing Benefit were very unhelpful about making a new claim while he was still not getting income support.

Additionally, a colleague had a client who was a migrant worker from Germany who got pregnant and whose JSA stopped. She tried to claim HB while her IS claim was still being processed, but was told that she couldn't claim HB if she wasn't claiming IS. It seems to me that the LA should assess HB claims regardless of this.

Any pointers to relevant regulations or other places I can seek clarification would be appreciated.

It is perfectly possible for HB to awarded when a claimant has no income - there is certainly nothing in the Regulations to preclude it.

It frequently happens when claimant's IS or JSA is cancelled, and there is a delay before an appeal is submitted or a new claim made.

Similarly, someone who was on JSA and is then held in prison on remand (or sentenced to less than 26 weeks) will have no income but can still claim HB.

Simplest answer is to appeal against the decision that HB not payable.

entitlement to HB can be based on receipt of a 'passport' benefit - IS/JSA, guarantee credit, OR on low income grounds.

i've encountered this problem a lot, and also the problem of delays in HB assessment, where the IS/JSA claim is delayed.

reg 67 of the HB regs required that an HB award was terminated when IS/JSA ceased (except when there was a switch from one to the other without a break) and a new claim invited. this reg has caused many problems, but i believe the requirement to terminate the award ( rather than suspend payment) was endorsed by commissioner's decision. the reg has now been revoked, with the ending of benefit periods, and i'm not sure where things stand in that respect - hopefully one of the real HB experts here might clarify...

but i find the 'No IS - No HB' myth is a persistent administrative barrier for vulnerable and unassertive people...perhaps it's easier to process a passported claim than to make an assessment - but nil income is pretty easy, isn't it?

there's the verification framework, of course - which is a purely administrative, not a legal entitlement barrier...

no surprises that your two examples include a migrant worker and someone with mental health problems.

public services are part of the problem of social exclusion, and while that is denied instead of acknowledged...expect more of the same, probably.

jj

I agree there are no barriers. In our area, we process HB a lot quicker than Jobcentreplus process other benefits so we are often in a position of processing a claim on nil income whilst we await a decision on the other benefits.

I have to say, however, that all the other Authorities in our surrounding area think we are quite mad, and most refuse to process until the “primary” benefit has been assessed. I have tried asking them what regulation they believe allows them to delay processing a claim under these circumstances, but they can’t come up with one. They still wont process though.

Another problem which can get messy is that the benefit authority may want a claimant to prove very low or nil income.

The question will be asked (or implied) "How did you support yourself for that period?" - What they really mean is prove that you did not have some other income that you have not disclosed.

And it's difficult to prove a negative.

Hi Vanessa,

theres guidance on what should happen, now that benefit periods have been abolished. See paras 11 - 19 of circular A31/2004 which is available at

http://www.dwp.gov.uk/hbctb/circulars/2004/a31-2004rev.pdf

Also the following is taken from a precis of the guidance in A31/2004, in bulletins circular 13 from Association of London Government's 'housing benefit training project' which you can get at

http://www.alg.gov.uk/upload/public/attachments/361/circulars_bulletin_issue_13_rev2.doc

"Now that benefit periods are abolished and regulation 67 revoked, LAs have to rely on suspension and D&A regulations to action changes in circumstance and to end claims. In effect, LAs have 4 options depending on what circumstances have changed and the potential impact on ongoing benefit entitlement.

Option 1 – No further entitlement; If it is obvious that there will be no further entitlement, e.g. person dies or moves out of the LA area, the LA should make a superseding decision to end the award.

Option 2 – The claimant may still be entitled and the LA opts to suspend the claim in full; If ongoing entitlement to benefit is uncertain, or the change in circumstance is likely to result in a significant reduction in entitlement, they should suspend payment under D&A Reg 11. At the same time, the LA should write for further information under Reg 13 of the D&A Regs, giving 1 month to reply and advising the claimant that entitlement will be terminated from the date of suspension (or earlier if applicable) if the information is not provided (this reflects the latest clarification giving by the DWP). If the information is returned the LA should supersede and reinstate benefit with the date of the change being either the date the change happened or the date of notification, depending on whether the change was advantageous or not and when the claimant notified the LA. This is in line with the current D&A Regs.If the claimant does not respond the LA should terminate entitlement from the date on which the payments were suspended or such earlier date on which entitlement to benefit ceases. However the LA will have to wait for a further month to elapse before it can actually action the termination Reg 14(2)(a). Therefore the total time from suspension to termination is a minimum 2 months.

Option 3 – The claimant may still be entitled and the LA opts to partially suspend; There may be occasions when the LA chooses to partially suspend the claim and pay a reduced amount, i.e. where there is a likelihood of causing hardship and/or the reduction in entitlement is not significant. The chain of events is similar to those above, in that the part suspension is made under D&A Reg 11 and a request for information made under Reg 13. However, should the claimant fail to respond the LA will not be able to move to directly terminate the claim, as this is prohibited under the provisions in D&A Reg 14(2)(b). The LA is required to supersede its decision to partially suspend with a decision to suspend in full; effective from the date the last part payment was made. Then, after the claimant has been given a further month to contact the LA, the LA can terminate the claim with effect from the date the claim was fully suspended. The consequence of this is that any payments made while the claim was partially suspended become unrecoverable.

Option 4 – The LA chooses not to suspend and requests the required information under Reg 73(1); If the LA feels that it is unlikely that the change in circumstances will affect the entitlement, the LA can choose to leave the claim in payment and send a query to the claimant under Reg 73 (1) giving 28 days to return the information requested. If the claimant does not respond, the claimant should again be notified of the information they need to supply under Reg 13(3) and given 1 calendar month, or such longer period as the LA considers necessary as per Reg 13(4), at the same time the claim can be suspended. If the info is not returned, a month’s further waiting time has to elapse before the LA can terminate the claim. However, it should be remembered that where the claim has been partially suspended the LA will first have to supersede its decision with one to fully suspend and give the claimant another month to contact the LA.In either case the LA will be able to terminate the claim 2 months after the full suspension under Reg 14(2)(a). Therefore the total time from query to termination is a minimum 2 months 28 days where the claim was fully suspended from the outset and a minimum 3 months 28 days where they claim was initially partially suspended."

Whenever LA's aske for evidence that it is not possible for the claimant to provide, I remind them of Commissioners decisions R(I)2/51 and R(SB)33/85 where it was held that whilst corroboration can give added weight to evidence, there is no need for corroborationin English law and the claimants uncorroborated evidence could be accepted, unless there were reasons not to.

Both decisions are on rightsnet

Just adding my two penn'orth in support of JMembery. I am surprised that there are still LA's out there who seem to believe that HB is inextricably linked to a DWP benefit and that they cannot assess HB until the "primary" benefit is sorted. It is all the more inexplicable where all the available evidence suggests that the claimant clearly is going to get IS or JSA(IB), or clearly does not have income above that level. Taking this wrong approach must generate an awful lot of traffic at their public enqiry points from some fairly anxious people.

I can understand why the "how are you living" question gets asked if a form declaring no income is submitted, but a reasonable explanation ought to suffice. As others have said no-one is going to be able to "prove" that they have no income.

When someone comes off a "primary" benefit the approach we take is to suspend HB if further entitlement is possible but unclear, or terminate the award if it is clear that there will be no further entitlement (e.g. claimant deceased or moved to another LA area).

Thanks very much to assert this stance on nil income again.

I have come across a few instances recently of families living on child tax credit and child benefit only (not because their capital was too high) and I fear there may be more to come.

So I take it that it can be possible to submit that they should be able to at least keep their full HB/CTB ?

What do you think ?

(Obviously I would try to convince/ assist them to comply so that earnings replacement benefit could be restored but, as it is ,the more rules to play by are introduced, the more players can no longer play the game and are kicked off the team or walk off the field. So they should at least be able to keep their accommodation.)