Can anyone clarify the rules on backdating for me please?

My understanding is that good cause must be demonstrated for everyday for which backdating is to be awarded, but that the period of backdating agreed may be shorter than that requested by the customer.

For example, a claim is made for backdated HB in Nov 03, for the period Feb 03 to Nov 03.
Continuous good cause can be shown for the period Feb 03 to June 03 - In this case the tenant did not realise that the LA had ceased to pay HB as his Housing Association continued to send rent statements showing HB credits.

However in June 03 the HA realised there mistake, adjusted the rent account and notified the tenant of the error. At this point the customer should have realised that he needed to get in touch with the LA.

Can I pay backdated HB for the period Feb 03 to June 03 for which good cause has been established (if so does anyone know whether this is in the regs or cause law?)? Or does good cause have to be demonstrated for the entire period until the written request was made in Nov 03?

Hope the above makes sense. Thanks for your help.

Charlie John

My understanding of Reg 72(15) is that if the claimant claims for a past period (the claim for backdating) the reg allows for backdating for a period starting with any day in the original period up to the date of claim for backdating for which good cause can be shown.

What is not so clear is what happens when the period for which there is good cause is "adrift" from the date of the backdating claim, as in your case. I have seen such cases in my authority and the decision was to backdate for a period equivalent in length to the period for which there was good cause, but of course the period dates don't actually tie up. This seems "fair" but probably legislatively dubious!

I would attempt to argue that there can be backdating for a partial period as Reg 72 (15) says "......from a day in that period up to the date of the claim for backdating....."

As it does not say ...up to and including the date of the claim for backdating....then I would argue that the period can be up to any date before the date of the claim.

Regards
Paul

Hope this will clarify - and (at the risk of a huge own goal...) I am as certain of this as anything in HB/CTB law.

The period(s) for which backdated benefit is claimed do not have to be continuous to any other period of entitlement.

HOWEVER..... the "good cause" for not claiming earlier MUST be continuous right up to the date on which, specifically, the claim for backdating is made. In my opinion, HBR 72(15) & CTBR 62(15) are not at all ambiguous on this issue.

If good cause is continuous up to the date on which the claim for backdating is made, then HB/CTB should be awarded from the first date on which that period of continuous good cause started (subject to the 52 week limit and there being any actual entitlement in any case). For completeness, if the reason(s) for good cause change, it doesn't matter so long as the good cause remains continuous.

Hmmm... was it such a good idea to put my head so firmly on the block...

Regards
Kevin D

Kevin

I was having doubts about my own reply even as I was typing it. I just think its worth a try arguing it.

Hey! Its far better to put your head on the block and go for it than to keep sitting on the fence and get your backside sore.

Regards
Paul

The crux of Reg 72(15) is the phrase "from a day in that period up to the date of the claim for backdating he had continuous good cause..."

In the present case, if there is no good cause in the period from June 2003 to November 2003,but there was from Ferbruary 2003 to June 2003,no backdating at all can be allowed. On the other hand, if there was good cause in the period from June 2003 to November 2003, but no good cause from February 2003 to June 2003, then backdating can be allowed for the period June to November 2003.

You really need to look carefully at all the periods, because there may have been good cause because of a particular reason say, from February to June 2003, and again good cause for some other reason for the period June to November 2003.

All the circumstances must be considered.

Backdating a claim allows an authority to award benefit for a period prior to the date the application was made (or is deemed to have been made). If a claimant can show that there is “good cause” for not making the claim earlier then the authority must award backdated benefit. However, the question of whether or not good cause has been shown is a subjective decision, and it is this fact that makes backdating such an area of contention, as one assessor’s view may differ from another’s.

In order that the authority may consider backdating a claim, the claimant must make a written request. A claim can only be backdated for up to 52 weeks from the date of the request.

The backdating regulation

‘Where the claimant makes a claim in respect of a past period (a “claim for backdating” and, from a day in that period up to the date of the claim for backdating, he had continuous good cause for his failure to make a claim, his claim in respect of that period shall be treated as made on –

(a) the first day from which he had continuous good cause; or
(b) the day 52 weeks before the date of the claim for backdating,

whichever fell later.’

Reg 72(15), HB (General) Regs 1987
Reg 62(16), CTB (General) Regs 1992

Before an authority considers backdating, there are five essential requirements:

· There must be a claim for benefit;

· There must be a request for that claim to be backdated;

· The date from which backdating is requested must be stated;

· The claimant must state reasons why the claim could not be made at an earlier date;

· There must be a finding of ‘good cause’ and this good cause must be continuous to the date on which the request for backdating was made.


Continuous good cause

Assessors need to ensure that the good cause or causes cover the entire period they intend to backdate for, i.e. from the first date of the backdating period through to the date the claim was actually made. If good cause can only be demonstrated for a part period, which immediately precedes the date of claim, backdating may be allowed for the part period.

Simply put:

1. Mr A. claims HB on the 1st June 2004 and requests backdating to the 1st April 2004. He produces a letter from his doctor confirming that he has been ill and unable to cope with his affairs for the last twelve weeks.

Good cause has been demonstrated for the whole of the period from the 1st April to the 1st June 2004,

2. Miss B. claims HB on the 1st June 2004 and requests backdating to the 1st April 2004. She produces a letter from her doctor confirming that she has been ill and unable to cope with her affairs until the 30th April.

Good cause has only been demonstrated for April. As there is no good cause during May, the claimant should have submitted an application then. No backdated benefit can be awarded.

3. Ms C. claims HB on the 1st June 2004 and requests backdating to the 1st April 2004. She produces a letter from her doctor confirming that she has been ill and unable to cope with her affairs since the 1st May.

Good cause has been demonstrated for May but not for April. The claim can therefore be backdated to the 1st May 2004 only.

See Section A2 Annex A of the HB/CTB Guidance Manual for a full discussion of these and other reasons for good cause.

The guidance manual is clear but not an authoritative staement of the law. Commisioners decisions re backdating now apply as much to HB as to other benefits, notwithstanding changes in the law restricting backdating of those benefits.

Para 9 of the Tribunal of Commissioners decision R(S)2/63 sums it up:

"...If the claimant proves good cause for the delay during the whole period, he can escape disqualification altogether. If he proves good cause for the delay during the latter part of the period, he can escape disqualification for that part. If however he proves good
cause for only the earlier part of the delay, he cannot escape disqualification,..."