Help!-I need to get an idea about how common a problem this is as am trying to bring an appeal to the Court of Appeal and am looking at the wider public interest.

This issue is the whether the regulation allowing a claim to be deemed to be made on the date of an Income Support claim so long as it is made within 4 weeks, reg 72(5)(a), can be used in conjunction with the regulation allowing for correction of defective claims within 4 weeks, Reg 72(8).

For example,
01/01- Income Support claim is made.
27/01- Housing Benefit claim made but defective.
17/02- Housing Benefit claim corrected.

The dispute is then whether the Housing Benefit claim is deemed to have been made on 01/01. Is this a common problem?
How common do you think backdating to IS claims is?
How common do you think defective claims are?

I'd be grateful of any feed back!

Nadine Clarkson.

Tue 24-Mar-09 12:44 PM by Kevin D

I'm somewhat puzzled by this - I can't see how/why this needs to go any further than a normal First-tier Tribunal. Certainly no higher than an Upper Tribunal.

Based on the facts stated, the claim is plainly made in time. Even if a claim is "defective", the language of HBR 83(7) & (8), as the regulations now are (Housing Benefit Regulations 2006), is such that a defective claim is still a claim.

If the defective claim is made good within one calendar month (as appears to have happened in this case), the claim shall be treated as having been validly made in the first instance. Notably, HBR 83(5)(a) is satisfied as it merely requires a claim to be made; it doesn't exclude "defective claims".

I am no fan of "piggy-backing" one provision onto another, but this isn't piggy backing. It's the proper interpretation - at least in my view.

Thanks, I agree but unfortunately the chair failed to consider the regulations working in conjunction with each other and only applied the facts to each regulations separately. If you have any idea how common the issue may be i'd be grateful for any info you have, thanks again,

Nadine Clarkson.

Tue 24-Mar-09 01:02 PM by past caring 2

Sorry, I got thrown off the scent by the numbers of the regs you used, then realised you must be referring to the 1987 regs. Current (HB regs 2006) equivalents are reg 83(5)(a) and 83(8).

As to the question itself, I'm struggling to believe that you lost on this one at Upper Tribunal as the regs are unambiguous ("the date on which a claim is made shall be"....."The relevant authority shall treat a defective claim as if it had been validly made in the first instance").

Can't help you on how common the problem is or how backdating to IS claims is - I'd be surprised, were the facts not in dispute, for a HB dept to put up a fight on the issue, though they might easily, in the first instance, "overlook" the provisions and award benefit either from the date of the initial defective claim or from the date of correction. Issues with defective claims are much more common, particularly in respect of "nil income" claims and the issue of whether information really is "reasonably required" as provided for in reg 86(1).

Oops, Kevin posted whilst I was typing my reply. at least we agree!

Thanks, we at least have a consensus; the problem is now passing the hurdle for permission to appeal as need to show is important point of principle of other compelling reasons.

Yes, Housing Benefit over looked it, good reps were made by LASA but unfortunately was a Deputy Commissioner who imply failed to consider the regs together.

If you have any idea's regarding statistics I'd be grateful,
Thanks again,

Nadine Clarkson.

I don't know about statistics, but in more than 20 years in benefits I haven't crossed this issue. If the Cmmr / Judge is correct in his interpretation (and assuming there isn't more to this?), it's going to be yet another of those cases where 99% of LAs believed they were correct, but have been wrong for years..... *sigh*.

Just had a thought.. from what date did IS entitlement commence, based on the claim of 1/01?

The dates i gave are an example but the IS claim ran from the date of that claim, there were no problems with that. The commissioner simply says that the hb claim within 4 weeks was defective and the later hb claim (correcting the defective claim we say) was out of time. This is despite the HB submissions that it could be correcting the previous defective claim.
Is CH/3530/2007.

On what basis did the Commissioner/Judge decide that the later claim was out of time to correct the defective claim? Given that the dates in your opening post were by way of example, what was the actual gap between the defective claim and the second claim?

IS claim 18/05/04
hb defective claim 10/06/04
hb claim 24/06/04.

The commissioner did not make a conclusion as to whether the hb claim rectified the defective claim as they only considered that claim and decided was out of time.

Any chance CH/3530/2007 could be sent to Rightsnet? It will reach them on rightsnet@lasa.org.uk . If not, I'll (eventually) get round to asking the UT office for a copy which I'll then forward to Rightsnet.