I have a client who was recieving full Council Tax and Housing benefit until she started work in september. She was on income support and believed she would get an extended payment for housing benefit as she was on income support for 26 weeks prior to going back to work.

My client has actually been given an overpayment for 4 weeks as the local council say they did not know she was on income support. She apparantly did not inform the council that she had moved from Satutory maternity pay to Income support.

The local authority have informed me that an underlying entitlement is not an option as apparanty an underlying entitlement is based on clients income at the time in question (which is higher due to her taking on a job).

My question is ... are the local authority wrong? Can my client apply for an underlying entitlement due to the fact that if all facts had been known she would have recieved an extended payment?

Or... does she have a right to appeal the overpayment based on the fact she believed she would recieve and extended payment. - We are out of time to appeal but could put in a late appeal based on the council not supplying us with all information requested.

Please help!

First of all late appeals can be accepted on the sole ground thatthe appeal has a resonable change of success. I get many appeals accepted that way.

Secondly, the Council should supersede its original decision under D&A Reg 7(2)(i) on the ground that your client became entitled to a relevant benefit. The so called benefitical change rule does not apply to a supersession under that provision. There is no time limit and your clients claim can and should still be assesseed on the basis that she was getting income support at the time in question

Once that supersession has been made, then it is simply a question of whether or not ther is an actual entitlement to an extended payment. So called underlying entitlement is not relevant to this.

The only other question is whether your client notified the DWP in time that he was starting work

I successfully argued at an Appeal Tribunal the other week that a claimant who otherwise satisfied the conditions for Extended Payments (i.e. satisfied the conditions but didn't tell the authority she'd started work) should have the amount of HB she would have received deducted from the overpayment.

The principle behind Regulation 104 is that it "awards" whatever Housing Benefit the claimant would have received had they notified the authority of a change of circumstances at the appropriate time.

Our LA has been known to offset extended payments against o/ps due to starting work without any prompting from us.