I have a client who is currently in receipt of income-based JSA (since 24th Jan 06) and notified the authority of this at the time (he had previuosly been entitled to IB) and HB has been in payment on the basis of his JSA entitlement.

A question has arisen as to my client's HB for a past period 2004/2005 when he was in employment and the authority state that they have no evidence of his income for the period Jan 04 to April 05. They've requested this information - my client is having difficulty obtaining it from his former employer and as a result have suspended the claim (see Regulation 13 (2) (c) Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001).

I have had a look at the regulation and it seems to me that this can not have been it's intended purpose, i.e. to suspend a current entitlement where it is evident that the claimant has an entitlement on the basis of being in receipt of JSA.

Could anyone throw some light as to the purpose of the aformentioned regulation and whether the authority are acting within its terms.

under reg 13, the authority should have notified him what information they wanted and given him a month from the notification to provide it. if he has difficulty obtaining it from a third party, it is reasonable to extend the period, or seek it themselves. it isn't reasonable to suspend his current entitlement when they are satisfied it is correct...

Just to add to JJ's post, there are a couple of observations that would be worth bearing in mind:

1) Assuming the LA administers the claim correctly, the LA will be entitled to draw inferences if the clmt is unable to provide the evidence required. While JJ is correct that the LA has the option of trying to obtain the info, it is not legally obligated to do so.

2) If a change (either by actual circs, or by inference) results in a period of retrospective nil entitlement, that claim ceases to exist. A brand new claim will then be required for any on-going benefit to be allowed (assuming the LA are up to speed on the rules about a claim desisting once a decision is made).

I'm still mulling over the use of DAR 13 to suspend CURRENT payments of benefit while a past period is at issue. I have already had thoughts about one technical argument that an LA could use, but I've not finished thinking about it yet. Maybe more to follow.

Regards

Thanks for that.

Look forward to a further reply.

Very interesting Kevin.
Slightly puzzled at what inference an LA is entitled to make if the clmt "IS UNABLE" to provide evidence required.

In my view, it will depend on the overall circs and, ultimately, the credibility of the clmt (& any witnesses, such as the non-dep).

The impression given by the original post is that the LA were not aware of the non-deps circs (although this is not absolutely clear). In those circumstances, the LA will be in a reasonably strong position.

One CD in particular (specific to HB/CTB) makes for interesting reading. In CH/4688/2003 (see para 11), Commissioner Jacobs looks at the issue of the ability to supply info (or evidence) against what is required in order to make a decision.

Regards

Doesn't seem to be any mention of non deps in the original post and if there is no info I'm not sure where credibility comes in.

Is it actually info that is being requested (eg the ammount of wages) or specific evidence (eg pay slips or written evidence about the ammount of pay on a letter head)? Also how did this all come up: are the authority carrying out a supersession because they have found out he was working whilst they had thought he was on JSA, or did they know he was working but not get this info at the time?

the evidence requirement should be reasonable - i too am curious about how it arose. if there was a claim when client was working, they would normally have requested payslips before making an award. are audit or fraud teams involved in the case?

Absolutely right! I have no idea why I read the issue as relating to a non-dep's circumstances!

To flesh out the "reasonably required" & "credibility" issues....

"The issue is what the local authority requires in order to calculate entitlement. If the claimant cannot provide it, that may prevent the local authority making a decision at all or making one that is as favourable as it might otherwise be. But the issue under the regulation is: what information does the local authority reasonably require? And in the context that must mean: require for the purposes of operating the housing benefit scheme and, in particular, determining proper entitlement to housing benefit." So said, Commissioner Jacobs in the CD mentioned previously. NB: I stand to be corrected, but there appears to be a typo - the word "not" seems to be missing for the phrase "...or making one that is as favourable...".

The above suggests, to me at least, an LA is entitled to draw inferences if the clmt fails to provide the evidence, for whatever reason (this would be consistent with R(H) 03/05). If the LA accepts the clmt's word, no problem. But, if the LA draws an ADVERSE inference, and the clmt contends that the LAs decision is wrong, but cannot provide the evidence, it becomes a question of the claimant's word. That inevitably means the claimant's credibility becomes an issue, to whatever degree that may be.

Regards

The local authority were aware that the claimant was in employment. The issue with the past period (i.e. Jan 04 to Apr 05) arose because the claimant had asked the authority to reconsider his entitlement to HB when in May 05 his hours reduced (his employment ceased in July 05). When they eventually got round to looking at this they realised that they had no proof of income for the aforementioned period. Although they had proof of income prior to Jan 04.

To repeat since August 2005 HB has been paid on the basis of the claimant being in receipt of IB and since Jan 06 income-based JSA. The claimant continues to be entitled to income-based JSA.

The claimant was only asked on 17th May 06 for the information regarding the past period of employment. The claim was suspended from 18th June 06 as he has had difficulty getting the information from his former employer. It appears that the authority may try and contact the employer directly about this. The claimant has now, however, provided P60's which cover the income period in question.

We have asked the authority to remove the suspension so that the current entitlement can be paid and to carry out a revision/supersession on the past period in question and treat as an O/P if necessary which carries a right of appeal.

Strictly from a regulations point of view, I think the LA are entitled to suspend benefit as they have. It would appear, to me anyway, that the purpose of reg 13 is just to give LAs a method of encouraging claimants to provide evidence or information where they believe they are deliberately not providing it, or are indifferent to providing it.It doesn’t appear to limit suspensions to information requested in respect of current or future circumstances.

I am not certain what works best for your client in these circumstances. Suspending benefit now will not really reduce any potential overpayment and, if the LA were not persuaded by your clients explanation that he was having difficulty obtaining the evidence from his employer, they could, as you suggest, draw an adverse inference and create an overpayment that was appealable. However, as Kevin points out, this would also end your client’s current claim and require him to submit a new claim which could take longer than a month to process.

I don't think they could draw such an adverse inference. The claimant has said his hours and pay went down. At worst he has not said by how much. If he can't clear this up I don't think the authority can draw an adverse inference that he is an eccentric billionaire earning enormous sums of money. Surely the most they could do is draw the adverse inference that the reduction in his income is not significant and leave his benefit unchanged. I don't think there is anything to suggest that drawing adverse inferences should be anything other than a last resort rather than a licence to jump to conclusions.

Regulations certainly allow the authority to suspend somebody's benefit even when their current entitlement is not in question. It is very clear in regulation 11. However this is a discretionary power which must be exercised reasonably. I can't see how it can be reasonable to suspend this poor beggars benefit and I suspect they are suceptible to judicial review. Having said that I can't really think of any situation where it would be reasonable to suspend because of an issue about historical entitlement.

Adverse inferences....

In my view, if the LA is in a position where the evidence is not provided, both of the CDs mentioned above envisage that LAs may draw inferences in those circumstances. R(H) 03/05 is rather stronger than "evisage". There are also an increasing number of CDs involving underlying entitlement where Commissioners are finding that LAs can draw inferences where evidence is not forthcoming.

But, as I suggested before, the LA could accept the word of the clmt.

As an aside, I don't see how an LA would be open to JR either - any (relevant) decision will be open to the normal appeal channels, so there would be no basis on which to engage a JR action. If a Tribunal thought the LA was wrong, it would find for the clmt accordingly.

Regards

Cannot appeal against a decision to suspend benefit.

But you can appeal against a (relevant) decision in which inferences have been drawn - which is precisely what my last post referred to. In fact I referred to "any (relevant) decision". I am aware that suspensions are not a "relevant decision" and do not carry a right of appeal.

I have to disagree with jmembury's view -
"It would appear, to me anyway, that the purpose of reg 13 is just to give LAs a method of encouraging claimants to provide evidence or information where they believe they are deliberately not providing it, or are indifferent to providing it."
it seems to be based on the notion that the legislation exists for the purposes of the administrators of the scheme. it doesn't.

suspending benefit payments when there is an outstanding question on entitlement is a means of protecting public funds. it enables an authority which is aware of the possibility that it is overpaying, ie a question on entitlement has arisen but is not yet resolved, to act so that it isn't adding to any overpayment, whilst it is not in a position to disallow the claim.

it is not reasonable to suspend the current benefit when there is no doubt about current entitlement, imo.

i have no idea why the LA needs details of the claimant's earnings for the period Jan 04 to April 05, by which to judge whether it their request is reasonable. reg. 21(a) states that income is calculated by estimating the amount which is likely to be his average weekly income...reg. 22 states that average weekly earnings shall be estimated by reference to his earnings over a period immediately preceding the benefit before the claim is made and being a period of 5 weeks or 2 months depending on weekly or monthly payments. where earnings fluctuate -"over such other period preceding the benefit week...to enable his average weekly earnings to be estimated more accurately." obviously, if his earnings change, that is a change he should report.
it is not clear why the LA wants this information at this point, as i don't know what doubt has arisen, but if it specifically wants weekly earnings details for a 15 month period, which is much more than is normally required to assess a claim I think they could reasonably be expected to approach the employer themselves, if they are not satisfied with the claimant's statement of his earnings and any changes, his P60 and the payslips i assume they saw at the beginning.

since he's told them he has had difficulty in getting his employer to provide the information, i don't see what adverse inferences could reasonably be drawn from this. for a review decision, the burden of proof is on the authority to show that his award should be revised.

Hi JJ

Quoting... "since he's told them he has had difficulty in getting his employer to provide the information, i don't see what adverse inferences could reasonably be drawn from this. for a review decision, the burden of proof is on the authority to show that his award should be revised."

I take the point about showing grounds for supersession or revision. However, I think CH/4688/2003 makes it clear that if evidence is not available, there may be occasions where the LA will be justified in make a decision........ (to paraphrase Commr Jacobs) that is not as favourable to the clmt as it might otherwise have been. In my view, in the absence of evidence being provided, LAs are within their rights to draw inferences. As I mentioned above, an increasing number of CDs seem to suggest that the drawing of inferences is an approach that is open to the LA in a number of situations. As also mentioned above, upon appeal, it will then be open for a Tribunal to change the LAs decision if it considers that grounds for supersession / revision have not been made.

Again referring to CH/4688/2003; Cmmr Jacobs makes it clear that the test of evidence being "reasonably required" must be in the context of what is required in order to determine HB/CTB entitlement - not necessarily whether it can be obtained. However, I'd readily accept that each case must be judged on its merits.

Regards

JJ

I base my view on Reg 13 on the fact that Reg 11 already gives the LA power to suspend benefit where a question has arisen over a claimant's entitlement. Reg 13 only deals with suspensions where evidence/information is not provided. Reg 13(4)(b) also states, for example "satisfy the relevant authority within..."

Interestingly, Reg 11(2)(a)(i) uses the words "are or were fulfilled" implying that Reg 11 suspensions of current benefit at least can be applied in relation to past entitlement.

an interesting discussion...

On the point of adverse inferences, I would only add that - in my experience - adverse inferences are already drawn the instant a person submits a claim form.

In my personal opinion, the whole of social security provision revolves around a culture of suspicion that all claimants are lying, cheating fraudsters. Particulary where LA's are concerned... the number of times I've heard people say "you'd think they were paying out of thier own pockets " is immeasurable.

Therefore, an authority that draws an 'adverse inference' in cases such as these is working to a low threshold. A threshold that can, and should, be challenged.

Can the authority reasonably require information that is not available? Where the claimant has provided all the information he has, are futher requests reasonable? Given that the authority has the power to obtain information from employers are continued requests from the claimant reasonable? If the suspension is under reg 13, then I agree that this is a decision that might be successfully challenged by JR remedy - or perhaps a complaint to the Ombudsman.

If it's reg 11, I'm not so sure; I would be able to adopt a coherent argument either way...

tony has pipped me to it. : )

kevin, re drawing adverse inferences, i meant inferences from the claimant's 'failure' to provide evidence, rather than inference about what that evidence would contain. it is not the case that the claimant hasn't tried to obtain the information from the employer, and realistically, if the LA wants 15 months of QB9 type information, i suspect it will take a form from a nominated officer with the power to require the information, most wages offices will be unwilling to do that amount of work at the request of an ex-employee. (btw, it's actually bugging me that the original poster is referring to the LA realizing they have no 'proof' of income rather than no evidence). there is a difference between adverse inferences and a presumption against the claimant, which regrettably so often seems to be the starting point of claims.

R(H)3/05, which is a mixed bag, still endorses Kerr, and some caution in the area of adverse inferences is called for from the fact that the adjudication system is inquisatorial not adversarial. (theoretically. : ) )

CIS 4502/02 refers to termination after benefit suspension of IS
"When Parliament has set out a carefully constructed procedure which can lead to the serious result of removing a claimant's entitlement to benefit, that result cannot be endorsed unless all the necessary steps in the procedure can be shown to have been gone through. It is not good enough simply to refer to the general purposes of the procedure in the vague way which was done in this case."
and of course, the discretion to suspend, which isn't reasonable, must be exercised reasonably. i still come back to why is it reasonable to suspend the current claim?

in this case, a decision will have to be made, which does generally make JR difficult, but doesn't mean that the suspension wasn't an abuse of power. it may (or may not) be that there was a reduced entitlement for a period of the claim, but i'm curious about what kevin says about the need for a new claim if there is a period of nil entitlement. would the payments made after employment ended and IS was in payment be treated as overpaid?

"but i'm curious about what kevin says about the need for a new claim if there is a period of nil entitlement. would the payments made after employment ended and IS was in payment be treated as overpaid?"

Yes, technically there would be an overpayment, but underlying entitlement would (presumably) be for the amount already paid, so the net O/P will, for that period, be nil.

The problem is, if a claim has been suspended for any length of time, there will usually be a period that no payment is made for. Any subsequent claim (for u-60s) would then need a b'date request for the period after the suspension! So, no o/p, but possibly nil HB/CTB without a b'date claim....

Another piece of benefits legislation really really well thought out....

Regards