Hi,

Sorry, more LHA. I have read the 3 previous threads and I still cannot work this one out.

Cl was entitled to some HB & CTB on old pre LHA rules, change of circs gave her a nil entitlement to HB, and a few pounds CTB.

Another change of circs, and she loses award completely.

Then, third change, and she reclaims. LA helpfully backdate HB and CTB award back to date the nil HB award and small CTB award ended.

LA say LHA is not applicable here because there was no break in claim. New HB award has been backdated to when nil award ends.

I argued that the client having a CTB award is irrelevant to the LHA rules, but they say an award of HB is an award, even if it is a nil award.

What do you think, the LHA is worth the full £15 to her.

Jane

This is still an issue about which there is not full agreement.

The DWPs view and (at least as far as I understand things) the view of the narrow majority of LAs, is that there must be a break in entitlement of at least a week before it counts as a new claim.

Others disagree.

Thank for the reply.

So does the break of entitlement have to be a break of both housing and council tax benefit? I thought that they were separate benefits.

They are seperate benefits, and on the basis that the previous HB award was terminated, there is no reeason why a backdated claim cannot produce a new award that runs concurrently.

You must appeal the LA's decision which quite frankly makes no sense in terms of the law

I believe we are all still in agreement that Hb and Ctb are separate benefits; as is the La you have been dealing with.

Your clients Hb award sounds like it has been "continuous" (without a period of no/nil entitlement).

There was a period of just under a month when she had a nil award of HB. The LA say the award was continuous because a nil award is still an award.

The LA tell me that the continuous entitlement to CTB means that she had a continuous nil award of HB.

Yes I think everyone agrees that HB and CTB are different Benefits so there is no need for a break in CTB to have an HB new claim.

On the HB side, as covered in other postings on this board, a claim for backdating should also be treated as a request for a reconsideration to terminate the previous award of Benefit. For this reason, and for a number of others, I do not think the position is quite as clear cut as some might suggest.

Edit- My post was being compliled before the preceeding post was posted)

If there has been a period of nil entitlement of HB after April 2008 that has not been revised due to the backdating then there has been a break in claim no matter what the LA are saying and the new claim is just that, a new claim to be processed under the LHA rules.

I wonder in what circumstances the LA in the original query WOULD accept that there has been a break in entitlement.

If someone has been getting HB/CTB then cease to be entitled that is a break.

Might be worth asking them to reference "a nil award is still an award". The response would be fascinating.......

A new claim may be treated as a request for revision, but there is nothing mandatory about it. The claim does not have to be so treated.

This is well established . See for example R(SB)9/84, R(JSA)2/04

Also R(I)11/62, CH/3009/2002 and CH/524/12004

Quote: There was a period of just under a month when she had a nil award of HB. The LA say the award was continuous because a nil award is still an award.

The LA is, er, wrong. "Nil entitlement" is not an award - this was confirmed in R v Birmingham CC HBRB & Fitzpatrick ex parte Birmingham CC (1991).

And on the back of Kevin's citation, posted as I was typing:

There was a period of just under a month when she had a nil award of HB. The LA say the award was continuous because a nil award is still an award”.

I just don’t know where to begin with that one. There is no definition of award either in the Regs or the SSC&B Act, so the word must be given its ordinary, everyday meaning.

The Oxford Paperback Dictionary defines the word as “ to give by official decision as a payment, penalty or prize…..a thing awarded”. In other words an award has to be something of substance, a thing. You cannot award a no thing: a nothing.

The term “a nil award” may be an administrative term of convenience but it is no more than that. It has no meaning in law or fact. A person is either entitled to HB or he is not. A period where a person is not entitled, separated by two periods where he is entitled is a period in which he has no entitlement.

Consequently, where a person makes a claim for HB (and HB falls to be awarded) following a period where he was not so entitled then a new period of entitlement begins. If this new period of entitlement is more than 1 week since the last period of entitlement ends then the claim should be treated as a claim for LHA if that is in line with that LA’s guidance

Thank you very much for all your helpful comments. I feel that I have a grasp of the situation now.

I think the LA has become confused between what their computer system shows as an ‘open’ or ‘ongoing’ award and the legal meaning of a period of entitlement and a new claim. The client certainly had a period of 4 weeks when she had no entitlement to HB. The LA just happened to have kept her claim ‘open’ or ‘ongoing’ on their system because she had an entitlement to CTB at that time.

Lets see how far up the tree I have to go before someone agrees with me.

thanks

Jane

"The LA just happened to have kept her claim ‘open’ or ‘ongoing’ on their system because she had an entitlement to CTB at that time".

For the sake of completeness, paragraph 2 of shedule 7 of the CHild Support, Pensions and Social Security Act 2000 is in the following terms:

"Where at any time a claim for housing benefit or council tax benefit is decided by a relevant authority—
(a) the claim shall not be regarded as subsisting after that time; and
(b) accordingly, the claimant shall not (without making a further claim) be entitled to the benefit on the basis of circumstances not obtaining at that time".

Confirmed by Mr Commissioner Pacey in CH/269/2006 where he says

“if a claimant does not qualify for the benefit, or ceases to qualify for the benefit, then the claim is disallowed. It is not susceptible to being revived by a change in circumstances. To put it more plainly the “nil” decision could not be superseded and the claimant in those circumstances had to elect whether to make a further claim for benefit.”

which is in the toolbox.
PB

Was there actually a period where there was no award of Housing Benefitt?


"Then, third change, and she reclaims. LA helpfully backdate HB and CTB award back to date the nil HB award and small CTB award ended."


" New HB award has been backdated to when nil award ends. "


It sounds as though there was a period of time where Hb was not paid because of the termination which was eventually paid when new claim/revision was done.

This could be the reason for the La's position on your case.

They have not treated the new claim as a "new" claim but used the information to revise the decision to terminate.

That may well be what happened in this case.

A nil decision cannot be superceeded, but it can be revised. It may be that this is what has happened in this case leaving no actual period of Nil entitlement.

Stainsby is of course right that treating a new claim also as a request for a revision may not actually be compulsory in all circumstances, but, I don't see anything that means that the LA is prevented from so doing in this case.

Jeff

PS - It may not be compulsory but my LA was chastised by a Commissioner for not so doing, though admittedly in a pre-LHA case.

Even after the backdating there is still a 4 week period of 'nil entitlement' to HB.

There are three different periods of entitlement

Prior to new claim and backdating there was -

period A - entitlement to HB and CTB (on pre LHA rules)
period B - no HB, entitlement to CTB
period C - claim terminated, no entitlement to HB or CTB

Current situation, including new claim and backdating -

period A - entitlement to HB and CTB (on pre LHA rules)
period B - No HB, entitlement to CTB
period C - entitled to HB and CTB (claim treated as continuous)

Update:

Reply from LA.

“I confirm that Miss X’s claim has been continuous since XX July 2007 and therefore her claim has been calculated under the old scheme rules…. … … … For the period 6 May 2008 to 3 June 2008 Miss X did not qualify for HB as her income was too high”

Am I going mad?

(I have slightly changed the dates to avoid the remote possibility of anyone identifying Miss X, or the LA!)

Fri 14-Nov-08 09:15 AM by stainsby

No you are not going mad but this particular LA needs to get its act together.

Oh dear, if that is the case, the La made an error and has since compounded it....

They need to undig their heals!

Hi,

After the decision was not changed on revision we submitted an appeal and the LA then decided to ‘take further advice on the regulations’ and decided that not being entitled to HB is after all a break in entitlement.

Thanks for all your help, she has had a nice backdating cheque in time for Christmas.

Jane

Hooray. Frankly rather terrifying it took so long and so much effort to sort that one out, based on the rather clear facts of the case....