Hello all;

Had a bit of a time with housing benefit. The client receives full disability element of working tax credits, no disability premium being used in client's HB and CTB calculation, check CPAG & Disabilty Rights book, disability element linking benefit for disability premium, so sent letter to HB asking them to rectify this, nice and straight and forward I thought, they check WTC disability element, then apply disability premium, bish bash bosh, no problem, I couldn't have been more wrong. HB then called me up asking all sorts of questions about the client's qualifying criteria for WTC, saying they have had problems before as tax credits do not always check qualifying criteria and claimants only have to tick a box on the form to get this element, so lot sof people are awarded it when in fact they do not qualify, uuuummmm, not sure about that one. After a few discussions and contacts with tax credits (who have never disputed the clients right to entitlement to tax credits disabilty element, it has been only HB who have been disputing qualifying criteras for tax credits), we are at the stage where HB have said they want to do one more check before considering whether they will award the disability premium on the calculation. Given the previous history has anyone got the caselaw, relating to the disability element and the disability premium, I think I may need it. I haven't got this horribly wrong, all the lists of qualifying benefits I look at say is qualifying benefit for the premium.

Thanks

It's not a question of case-law but of statute. Schedule 3 of HB regulations lists the disabled worker element as a qualifying benefit and says that the premium will be paid where 'the claimant or, as the case may be, his partner— is in receipt of'' the benefit, regardless of whether that payment is correct or entirely erroneous. HB are not entitled to look behind that decision, any more than they are entitled to look behind an award of IS or Pension Credit.

That said, this doesn't stop them bringing to the attention of HMRC any case where they believe that the disabled worker element might have been paid in error. And if they did that your client could be looking at being lumbered with an overpayment of tax credits. So it might be worth checking his entitlement to the disabled worker element before thumping any tables.

Thanks for your reply. As far as I can see, and the tax credits can see, and the disability advsor at the jobcentre plus who arranged the tax credits can see, the client is definately eligable. Client got ICB for two years prior to claim, passes disadvantage to employment tesat least two of the criterias in part one, and works 16 hours a week, I cannot see how she does not qualify, nor can anybody else apart from HB. The last thing they were questioning was a 11 day period in 2007, when the client was off work sick, of course you do not loose your WTC for being sick off work a couple of weeks, that's even before you get into the two year linking rules. They also asked if the client was registed disabled which I could not the relevance of, and suggested that the client might have lost the right to claim when her husband died, as they had a joint claim, of course to get the joint disability element as a couple you must both satisfy all the qualifying conditions, not just between you, so the only difference it makes is to the amount you get. Sorry, went on a bit there, I just needed a rant as HB have been driving me potty about this. I will quote scedule 3 to them if they cause any more problems.

sometimes i like to turn the tables back on HB and ask them to provide evidence for them taking the approach they do, rather than me trying to find evidence to prove theyre acting incorrectly.

eg "the jobcentre plus, the inland revenue and myself after considering schedule 3, all consider this claimant to be eligible for the disability premium. please provide your reasons for assuming he does not. if it transpires that he has been awarded the diability element of WTC incorrectly (as you seem to suspect) then you will be able to reclaim any overpayment caused by the error from the claimant"

i've never known a HB office query this before. having the disability element of tax credits is listed in cpag book, disability rights handbook and zebedee, ward & listers' guide to HB as a a qualifying condition for a HB disability premium.

there's no addendum of "and assuming HB assess you being corectly awarded the disability addition by tax credits"

i have just noted that chris smiths' handbook for housing managers' doesnt list the tax credit route as a way to get HB disability premium, which i hadnt noted before

Hello, thanks for you reply. As far as I can see the HB's defence to this, is that if a WTC claim is being paid in error, and a HB award is made on a linking benefit, then this will generate a HB overpayment as well as a tax credit credit overpayment. Come to think of it, that's not really a defence at all.

Thanks for the warning about chris smith's handbook, I will see if this is my next hurdle.

Yes mpmap, you've clearly gone into her WTC entitlement fully, and should have no hesitation in going full steam ahead!

The fact that they are querying the 11 days sick leave, which has nothing to do with her entitlement shows exactly why they shouldn't be interfering with this and should be leaving it to the HMRC, the opposite of their argument!

I think I would stop negotiating at this point and just ask for a decision against which the claimant can exercise the right to appeal and seek an independent decision. Specifiy a time limit (14 days in the HB regs) and if you don't get the decision use the LA's complaints procedure.

If there's already a decision, then just submit the appeal and be prepared to use the complaints procedure for any unreasonable delay in dealing with it (you could bung in Article 6 ECHR argument for good measure).

I agree with Tony - simple get the decision and/or appeal as appropriate. The award of the qualifying element in Tax Credits is simply a question of fact - the LA has no (legal) basis on which it can refuse to award the DP.

and an analogy. there's a recent CD to the effect that HB can't go behind a DWP decision on LTAHAW (hb thought person was, DWP hadn't yet made that decision) and therefore from that you can argue the same here - if HMRC and everyone else say disabled, HB don't have ability to argue/decide not.

The HB office appears in this case to be acting beyond its powers and its competence. I have never been called upon to train HB assessors in my LA on how to assess disability. We award disability premiums on the basis of information provided by other agencies. It's not our job to assess disability first hand, so I wonder this LA gets the idea that it can.