I have been advising in respect of a client whose non-dependant daughter aged 20 came off income-based JSA (in June 2004) although she works less than 16 hours per week so is not in remunerative work. When JC+ notified the local authority that JSA had stopped, the authority applied the higher NDD. We have argued that the authority has made an error of law in that they could not apply the higher NDD because they can only do this where a non-dependant is in remunerative work (i.e. the burden is on the authority to prove that a person is in remunerative work).

This is backed up by the footnote to Reg 63 of the anotated HB(General)Regs (see p.447 of 16th Edition) which states "It is suggested that it is for the authority to prove that a person is a non-dependant and that such a non-dependant is in remunerative work". Has anyone tried arguing this and, if so, with what success?

The authority are refusing the review their original decision on the basis of error of law. I've asked them to explain why but I'm not sure what to do next.

Sorry to be thick but i'm a little confused by your post!

Do you mean that when the daughter came off JSA and started work that your client did not inform the LA and so they have assumed she's in reumnerative work and have applied the £47.75 non-dep deduction for HB and the £6.95 deduction for CTB because the client had not provided any figures/explanation etc?

Anyway even if i've got the total wrong end of the stick you need to appeal if you think the decision is wrong.

I have just won exactly this type of appeal. Our Widow's HB was cut as her son (who is a Farrier)came to live with her after his marriage broke up. She discussed this with us (we are also her landlords) and was given permission to allow him to stay. As I am her HB advocate, I checked her claim and told her that his presence should not affect her.

Without any consultation, the LA rang our widow, took a statement of the bare facts over the telephone and promptly cut her benefit.

I wrote to the council and insisted that they prove he was resident and contributing to the household. (In fact, the nature of his job meant his "residence" was mostly somewhere to store his clothes.
His job takes him away almost every day - but that is not the point.)

The Council were unable to prove thier case and backed down very quickly.

You must appeal this immediately and insist the Council prove thier case.

CH2324/2003 will back your argument up. The Commissioner held that to impose the max non dep deduction, the LA must make a determination of fact that the non dep is working >16hrs a week, and if such a determination is made with no evidence to support it, that is an error of law

Hi stainsby,

CH/2324/2003 doesent seem to be available on the net.

If you could send us a copy we would be happy to publish it on rightsnet.

Copy sent as requested

Many thanks for this case reference. It sounds as if it would help my client's case. Trouble is I cannot find it on the Commissioners' website. Any chance you could send me a copy, please?

Thank you.

Ros.

Ignore my previous message - it crossed with the others in the post!

Ros.

Thanks very much to stainsby's usual fast and helpful response, CH/2324/2003 is now available on rightsnet.

Thank you. This case is just what I needed.

Ros.