Apparently at a conference in London yesterday Paul Stagg gave the opinion that claimants could voluntarily switch to LHA.

According to the HBinfo website one LA has now decided to let claimants switch as a result of this.

Does anyone have futher info re this?

Victor

see today's rightsnet news

Local housing allowance and withdrawal of housing benefit claims

DWP say '... we do not consider that a claimant should be prevented from surrendering an award of benefit if they indicate that they no longer wish to claim it.'

It would appear therefore that a claimant can cancel their existing claim and immediately reclaim under LHA regs. The suggestion of a week's gap is not supported by any Legislation that I'm aware of, but I stand to be corrected if there is a dusty old reg somewhere .....

I suggested to one of our members of staff that If that is the case, then those Welfare Rights Advisers located in areas where a move to LHA rates would be financially beneficial to the client ethically should be advising clients along those lines... a large intake of breath was heard, followed by longish pregnant silence -

Wed 21-May-08 03:37 PM by Anselmo

This is such a can of worms I am reluctant to comment at all! Except to say that although the DWP have now very much backed the view that claimants can switch in this way (changing horses beautifully in mid-stream), not everyone is totally convinced yet...

I am one of those who remains unconvinced - which is not to say I think there's definitely no way people can/should do this or I think people who take that point of view are wrong, I am what I say I am -unconvinced.

I think a few things to remember are:

1) This is DWP 'guidance', which as we all know is not gospel, nor law, nor binding on LAs - their latest statement came in the form of a general circular, not an amendment of the regs.

2) The DWP admits in its guidance that "there is no statutory mechanism expressly permitting a customer to withdraw their claim after it has been decided".

3) The guidance depends on the comments of commisioners in their decisions, one of which states that to withdraw their claim it must be clear that it is the clear, unequivocal and unambiguous intention of the claimant to stop receiving benefit. Anyone trying to get on to LHA in this way is quite obviously NOT genuinely wishing to stop getting benefit - indeed they are seeking to get MORE benefit! I feel this point is being overlooked somewhat.

To be honest, I can't see any reason why, from a purely ethical viewpoint, exisiting customers should not benefit from the new LHA regime if it is more favourable than what they're on now, I would just feel a lot happier if the Regs were tweaked to explicitly allow for this and remove all doubt.

Our HB department consulted the Adelphi on this a while ago. The advice it got back was (in its simplest form) that if a person surrenders HB and then claims LHA within 1 month then HB would merely revise the HB decision and re-instate it. Thus the claimant would have to forsake 1 month’s benefit and then claim LHA after the 1-month period has expired.

I wish they would make up their mind.

Nevip -

their latest position is similar, but they state there would have to be a break of one week, rather than one month.....

....and what makes you think they have a mind to make up?!?!

I think it might take a Tribunal of Commissioners to sort this one out.

It used to be established law that a claim could not be withdrawn by the claimant once a decision had been made on it. The only way anything could be changed would be through the usual revision/superession process (see R)U)2/79, R(U)7/83)

On the other hand Mr Commissioner Mesher held in CJSA/39/79/1999 that a clear an unequivocal statment from the claimant that he wished to withdraw the claim for a futuer period amounted to a change of circumstances that would justify supersession.

CJSA/3979/199 was considered by the Commissioner in R(H)2/06 but no conclusions were made because R(H)2/06 dealt with a claim that had not been decided.

The question of revision within the month of a request to withdraw and transfer to LHA in my view is not really relevant because Reg 4 of the D&A Regs as far as revison by the LA of its own initiative is concerned is written in the language of discretion, so the LA is not bound to revise.

In any case changes to an existing award during its currency are made by supersession, not revision. I

Wasn't there a recent decision - possibly in the last few months - that dealt with this? Might have been related to tax credits... I think it went along the lines that it would be unreasonable to prevent someone stopping a claim of thier own accord (might have been one of those already quoted).

Sorry, I just read them and then know I read them somewhere... No good at memorising!!

There is a case before Mr Commissioner Pacey (CH/3921/2007) at the moment. He was minded simply to remit the case to another Tribunal when he granted us leave because he was clear that termination during the currency of an award is a supersession.

The Council have conceded the tribunals error of law in not making a determination what the grounds for supersesion were.

We are still waiting for the full decision with directions

... in the latest issue of its HB Direct newsletter, the DWP advises local authorities that those who withdraw their benefit claims -

'... should be advised about the processing times as experienced in your offices as their new claims would be processed with all other new claims being received.'