Hi, if anyone could help I'd be grateful.

A client has just been awarded full housing benefit based on a small works pension, DLA HRC/HRM, and an inheritance which is now down to just under £16K.

He claimed hb after his recent DLA award and at the point his capital reduced sufficiently. For the last 10 years he had lived off his works pension until his father died 2 years ago leaving an inheritance. He was medically retired but then turned down for invalidity benefit, having claimed sickness benefit.

Housing Benefit has been awarded at the full rate - no problem there. However he has now received a letter from housing benefits telling him he must apply for incapacity benefit - and if he does not do so or prove that he cannot his housing benefit will cease.

Can they do this? I thought there was some caselaw somewhere that suggested they could not. Any ideas?

A person only falls foul of the failure to apply for income on available on application provisions if it is evident s/he would be entitled if s/he claimed.

Presumably, from the info you have given your client is not in a period of interuption of employment. Thus as he has not worked for 10 years then he would not qualify for ICB thus should not have to make a claim.

Have a look at CIS/16271/1996.

Regards
Paul

Thus does Nevip prove the point! I work in HB and I did not know that about ICB. I suspect your LA doesn't either!

I am assuming that is in relation to Reg 35(2), which says that a claimant can be treated as possessing income which would be available to the claimant if he/she applied for it.

I do not know about caselaw but the DWP's own guidance to LA's suggests that this rule should not be applied to social security benefits because of the lack of certainty over whether there would be entitlement and if so how much. Local authority HB offices are not known for their expertise in Incapacity Benefit! Many moons ago a number of HB IT systems used to automatically calculate what was then called Family Credit alongside the HB and then automatically add that to the claimant's income for HB purposes. Most LA's ended up having to switch off this "feature" because it proved to be so imprecise in terms of working out true eligibility for FC in many cases.

I do not see how the LA in this case can claim with such certainty that HB "will cease" if your client does not claim IB. I can only assume that they intend to draw some sort of adverse inference on the basis of no information. Presumably he could only 'prove' his non-entitlement to their satisfaction by applying and being turned down, which begs the question of how long they propose to give him to apply, will they expect him to appeal if turned down - potentially it could go on forever.

If I were you I would argue that they do not know whether this income would be available to him and so they are misapplying Reg 35(2).

The original post did say that the Local Authority wanted him to provide evidence that he wasn't entitled to Incapacity Benefit if that was the case. I imagine they are just covering themselves under the notional income rules. They don't know if he would be entitled, so they are asking him to apply to see if he is successful or turned down.

It is not an approach we would adopt, but I can see the reasoning behind it. It he would not be entitled because of the 10 year rule quoted above, I would simply point this out to the authority. I am sure they could check this with their counterparts at the DWP.

I hope I haven't created any confusion. I did not mean to imply any 10 year rule as such. The situation is that to qualify for ICB then a person has had to have paid the relevant NI cons in any one tax year in the three tax years prior to the benefit year in which s/he makes a claim.

Thus a general rule of thumb is that a person is unlikely to qualify if they have not worked at all in the four years prior to the year in which the claim would be made. Although there maybe some who qualify.

Coming in late here - it's not the three tax years prior to the benefit year in which s/he makes a claim, it's three tax years prior to the relevant benefit year. The relevant benefit year is the one in which s/he became incapacitated (sch 3 SSCBA 1992). It is thus possible to establish eligibility for IB by reference to NI contributions which are quite ancient - the problem is sometimes providing medical evidence for the incapacity inbetween - but it can be done.

Sue

You're quite right. For most people the relevant benefit year will be the same as the year in which they claim but there are others which fulfill the scenario you outline.

Regards
Paul

I don't think it alters the general argument in this instance tho - I've only ever got IB paid on this basis after an epic struggle.

This reply assumes that the "award" is a decision; not a payment on account assessment.

Unless I've missed something (quite possible at the moment....), the LA arguably has a somewhat more fundamental problem if it terminates the claim.

On what grounds do they supersede (or revise) the original decision? If/when the LA terminate the claim, there does not appear to be any change of circs to warrant such action. There is no new evidence to cast any doubt on the claimant's circs. By making a decision in the first place, the LA has accepted the circs given by the clmt. The LA can only terminate by relying on the DARs (i.e. suspend / require info / then terminate). I'm struggling to see the basis on which a suspension could be justified in the first place.

My advice is to request the LA to confirm the full legal basis of it's proposed action, including regs and supporting case law, especially when they are not disputing there was sufficient info in the first instance to make a decision.

In the event that the LA follows through, submit an request immediately for reasons etc......

Hope the above helps.

unless your client has paid class 3 NI contributions in the 10 years he hasn't been working, he will not qualify for IB.

if a person knows that he is not entitled to a benefit then it is reasonable for him to decide not to claim it.

he can tell them that he does not qualify for IB because he doesn't satisfy the contribution conditions, not having worked for 10 years. this evidence should suffice. he shouldn't be compelled to submit a claim so that he can furnish the LA with a disallowance notice - this is a complete waste of tax-payers' money.

if the LA want to assume income available on application the onus is on them - and if they are uncertain, they can pick up a phone and ask the DWP whether someone who hasn't paid NI for 10 years would be awarded IB, if they must. they should have a liaison officer telephone number, so they will not have a fraction of the trouble your client would have to go through to jump through their insane bureaucratic hoops.

is it impossible for the LA to ask your client to explain why he doesn't recieve incapacity benefit, without issuing him with a threat?

jj

ps - it's not actually clear why your client was turned down for IVB...

what am i thinking off? - scrap the bit about class 3 - they don't count for IB.