I have a recently referred client who lost about 8 weeks benefit due to an intervention form not being returned within the LA's timescale last sep/oct (2005).

I understand, and agree, with your comments re ",,, force the LA to specify,,,". Made previous topic Housing Benefit backdating appeal - 10/05/05.

It would be useful to have some references/interpretation of legislation etc to support such an approach. Have there being any relevant developments since last year? are there any commissioners’ decision?

The only reference I have been able to find is from
"Backdating Notes 2006 for Assessment Officers - 12/06/2006" which states:

DWP have advised that where a claim has been suspended and
subsequently terminated because the claimant has failed to provide
information, if he provides the information at a later date the LA
can then decided whether to use it to reopen the claim. This is not
considered backdating, although the LA will have to decide whether
they accept the delay in supplying the information.

I am afraid that I am perhaps better placed to tell you what arguments the LA is likely to use against you than to offer advice on how to counter them.

The LAs position will be something along the lines of.

Regulation 86 of the HB Regs 2006 allow LAs to require evidence from claimants to confirm “continuing entitlement to” housing benefit. (There are similar provisions in the CTB Regs)

Although this evidence must be “reasonably required” it is in the context of what the LA can reasonably require to calculate or confirm entitlement to HB, not what it is reasonable for a claimant to provide. (See postings by KevinD in this forum for details).

There have been a number of Comms decisions that have found that what the LA can reasonably require is quite wide. In CH 4390 2003 for example Commissioner Howell notes - “As for all benefits, there are periodic checking and verification procedures for CTB to ensure that the considerable sums of public money involved are being spent correctly.”

He goes on to say - “It is well within the bounds of reasonableness for an authority or the Secretary of State to require evidence and information to substantiate or confirm a person’s entitlement to be given not only by completing the normal printed forms but also from time to time in the form of a signed statement given in response to direct questions from a council or departmental officer at a home visit; supplemented if necessary by visual demonstration that the claimant is indeed continuing to occupy the property in a normal manner, and has not for example sub-let or parted with possession in a way that could prejudice their right to the benefit.”

Once the information has been requested from a claimant (E.G by asking them to complete an intervention form) the council has a number of sanctions where that information is not supplied.

Regulation 13, of the HB&CTB (Decisions and Appeals) Regulations 2001 allow the Council to suspend payments of HB and/or CTB.

If the claimant still does not provide the evidence or information requested the LA can terminate benefit under Regulation 14 of the D&A Regs. Here I may disagree with Stainsby. As I read it, Reg 14 only requires the claimant not to provide the requested evidence or information where a claim has been suspended under reg 13 (as opposed to reg 11) it does not require that question have arisen over whether or not the original decision should be superseded or revised.

Once the claim has been terminated there is an argument (although I do not agree with it myself) that the claimant has no right of appeal as the termination is an administrative decision. This is the current guidance from the DWP.

The issue over a potential RAT check is one you could raise, but many LAs will be able to point to considerable processing delays at their local DWP offices effectively making a RAT check worthless. Anyway the RAT is only really useful where the claimant is in receipt of IS or JSA(IB), even here the LA will need the claimant to confirm details of their rent, residency and household composition. In any other circumstances the LA will also need to obtain income and capital details from the claimant.

These are the problems you will face, I am certain that others will be able to offer some suggestions as to possible remedies.

Jeff

the whole point of interventions is to prevent fraud and error.

i fail to see why a LA would wish to use the regulations to deprive a person on means-tested benefits of HB and CTB, for failing to provide verification that they received JSA, (which had been provided to prove entitlement originally), when there was no doubt in the first place, (only a routine check), and there is no doubt subsequently, that JSA was in payment.

such is a case i saw today, coincidently. the reason for the late provision of evidence was that the claimant didn't receive an evidence request.

she did receive an HB overpayment letter which she did not understand last November, (for over £1000) and queried it with the 'call centre', who told her not to worry, there's a problem with our computer system, and all she had to do was pop into the neighbourhood office with proof of her JSA. She remained ignorant until yesterday of any evidence requirement - and thanks to the platitudinous call centre script, did not realize until she got HB (£300 this time - the thousand quid one has disappeared) and CTB overpayment letters in July and August that she had (most likely) been disallowed for 6 weeks last October/November. if she had received proper advice when she phoned the LA she could have queried the disallowance then, or appealed against it.

i expect it counts towards some performance indicator or something...

we have appealed...

Thanks for the replies. This query took an unexpected turn and is now resolved - without any further decision or development regarding intervention forms and their use or purpose.

My reading of Regulation 86 of the HB Regs 2006, as quoted by jmembery, is if intervention forms are not returned, or returned in-complete, benefit may be suspended and possibly withdrawn - and arguing against such action will be difficult. Though quite possible if a client is on income support, JSA(IB).

i'm glad to hear your case is now resolved. the wording of reg. 86 hasn't been amended as far as i am aware and the onus still remains on the LA to show that HB should be terminated -i agree with stainsby on this. whether we will enter a replay of the VF scenario of a few years ago remains to be seen. i doubt that the DWP are correct about there being no right of appeal against reg 14, and they consistently get their approach wrong in this area. i don't expect there will be a shortage of legal arguments.

CIS/4502/02
"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. If the Secretary of State does not produce the necessary evidence after having had a fair opportunity to do so, he must bear the consequences."

the question why LA's would wish to use the procedure to remove benefit entitlement when entitlement is confirmed, remains the interesting question for me...

I agree with JJ re CIS/4502/2002, and I still think that the Commissioners comments in CH/4390/2003 can be taken too far.

The Commissioner was dealing with a claimant who was just being plain awkward and I think that some aspects of his decision can be seen as just plain wrong given that residency for CTB purposes at the time was something that would have to be decided when billing the individual.

The new HB Reg 86 is slightly different to Reg 73 that it replaced in that the new initial time limit to provide information is now 1 calndar month not 4 weeks. A couple of words have also been added.

Reg 73 required a person to furnish evidence and information "in connection with a claim or any question arising out of a claim or the award..."

The new Reg 86 requires a person to furnish evidence and information in connection with "the claim or the award, or any question arising out of the claim or the award..."

The new regulation does seem to give LA's a wider power to ask for information, but there is no specific power to demand that it be given in any format or in persson. This is in contrast to Reg 32 and Reg 8 of the Social Security (Claims and Payments) Regs.

Reg 32 (1) reads:

"32.—(1) Except in the case of a jobseeker’s allowance, every beneficiary and every person by whom or on whose behalf sums payable by way of benefit are receivable shall furnish in such manner and at such times as the Secretary of State or the Board may determine such certificates and other documents and such information or facts affecting the right to benefit or to its receipt as the Secretary of State or the Board may require (either as a condition on which any sum or sums shall be receivable orotherwise), and in particular shall notify the Secretary of State or the Board of any change of circumstances which he might reasonably be expected to know might affect the right to benefit, or to its receipt, as soon as reasonably practicable after its occurrence, by giving notice in writing (unless the Secretary of State determines or the Board determine in any particular case to accept notice given otherwise than in writing) of any such change to the appropriate office."

Reg 8 gives the Secretary of State a specific power to demand that evidence be given in person:

"8.—(1)
(2) Every person who makes a claim for benefit (other than a jobseeker’s allowance) shall attend at such office or place and on such days and at such times as the Secretary of State or the Board may direct, for the purpose of furnishing certificates, documents, information and evidence under regulation 7, if reasonably so required by the Secretary of State or the Board "

Mr Commissioner Mesher put limits on the Secretary of States powers in CIS/4502/2002. The powers of LA's are still far more limited than those of the Secretary of State.

A Tribunal of Commissioners confirmed in R(IS)2/97 that Regulation 17(4) of The Social Security (Claims and Payments) Regulations does not provide a separate and independent jurisdiction for conducting reviews, and that any review must proceed under the normal review powers, ie the usual grounds must be established before an original decision can be revised or superseded.

Regulation 17(4) of the C&P Regulations is the provision whereby continuing entitlement to be bnefit is subject to the relevant conditions being met:

"(4) In any case where benefit is awarded in respect of days subsequent to the date of claim the award shall be subject to the condition that the claimant satisfies the requirements for entitlement;"

The principle established in R(IS)2/97 must also apply in the housing benefit context, more so given the narrower powers of LA's as compared to those of the Secretary of State.

The burden is on the person seeking to change an award to show the grounds for any revision or supersession. Depsite the widening of LA's powers by the inclusion of a couple of words in HB Reg 86, LA's still need to jusify carrying out interventions and evidence must be resonably required.

The inquisitorial functions of decison makers as confirmed by the House of Lords in Kerr v Deptement of Social Development of Northern Ireland (2004) also means that LA's should often be making more efforts to obtain and use information that they already have access to before denying benefit to claimants

I would certainly agree with JJ that there appears little point in withdrawing entitlement from a claimant who was subsequently found not to have a change in circumstances.

It is particularly worrying as JJs post implies that the LA just sent out one request for evidence that was then not received by the claimant. Normally an LA would send out a request for evidence, a reminder, a letter informing the claimant their claim had been suspended and finally a letter saying the claim was terminated!

I can confirm that there is no performance indicator for LAs in respect of terminating claimants entitlement to benefit. (Nor financial incentive either for that matter).

Although I understand the DWPs arguments that there is no right of appeal against the termination, I do not agree with them.

I do think, however, that the effect of Kerr can be overstated. That case dealt with information that was readily available to the decision maker, but not to the claimant.
This view was confirmed in CH 2794 2004, and will IMO have limited impact on HB/CTB cases particularly where only information (not evidence) has been requested as is the case with most interventions.

Hi jeff, it is a puzzling case. I might be able to clarify when i get a reply from the LA. what we know so far is that the LA seems to have gone back to last October and November and carved out a 6 week island in her benefit awards - there's an overpayment letter stating that the overpayment arose because "you failed to provide proof of your income and capital." There was no suspension or termination of the ongoing award - a revision and finite period disallowance is implied by the overpayment letter. To be fair to the LA, i'm not sure that this was the 'intervention' under discussion here - it's some sort of intervention however...

She has just been told that a visit was made in October and she was not at home, but tells me she had no idea of this - there was no notification of the visit, or any note letting her know. the lack of follow up is peculiar but may be explained by the LA's very disruptive switch to a new computer system at the end of last year. it seems there have been 'teething troubles' and i've noticed a big increase in HB and CTB clients - i'm hoping the benefit service isn't heading for another 'implosion' like it did two or three years ago. i'm not ruling myself out of having one, mind...or the law centre, which is already decimated... The new computer system incidently, gives totally inadequate overpayment explanations, requiring...er...explanation.

there's something hit and miss about it - i don't like the way she is 'managed', not advised...she is a bright young woman, but, inexperienced and completely trusting of authority. She phoned to query an overpayment letter, and duly provided her JSA proof, in compliance with telephone advice, in complete ignorance of whatever information was on the call centre operators screen, and i daresay that call centre operators are left in some ignorance of the wider picture and are not in any event paid to enlighten or educate the 'callers' they 'handle'. so, in this somewhat random way, she complied with an evidence requirement she knew nothing about. these things make it extraordinarily difficult for people to give instructions, because they are so baffled...

she actually came to me because she has received a council tax summons - she was very upset about this - she described receiving a letter in July which may have been a CTB overpayment letter - not sure. unfortunately she no longer had it. a bit troubling to me, trying to make sense of it, because it's unusual for a CTB o/p decision to be given a month before the HB o/p decision. she says she went to the neighbourhood office for an explanation and checking on the computer, was told that they couldn't see why there was an overpayment, but there was, and she would have to repay it. They advised that she could ask for a written explanation to be sent to her, and a paying in book to clear it at £3 a week, to which she agreed - compliant, and unaware that she could challenge it. she was also told that they are not allowed to telephone the benefit service, which surprised me since they are part of it. 'processing' is very hands off now...
she has not received an explanation or a payment book, and on 16/8/06 received said summons, with £51 costs added to £120.bill to make her debt over £170. the next day she received the housing benefit letter telling her she must repay just under £300.

she had actually offered repayments by installments, but asked for a reduced amount on hardship grounds as she is repaying debts by installments. She is doing the best she can on £57 + child allowances...

she has been able to show me confirmation that she was at the NO immediately she received the summons, and their e-mail refers to her visit beginning of July and the request for payment book (but no mention of request for explanation). The NO has requested a waiver of the costs, so if this happens, I won't know if my intervention achieved anything at all - but i have explained to her that she has a right of appeal and apparently grounds on which to appeal against the overpayment decisions, and she has chosen to exercise it.

i realize that i have moved this discussion away from the law to questions of administration...where these two meet seems to be a very tense and difficult area. Birmingham has targets for 63130 data match and review interventions and 25250 visits for this year. I know from my own DWP experience how easy it is, in the throes of bulk processing, to lose sight of what it is all really about, and it is much more difficult now than it was then, when we had front line and local contact with people. it's very easy for people to become numbers, statistics, profiles and labels, and worse. this little case is a microcosm of ills in public service which are wider, and very much more serious problems than those faced by this young woman in her early twenties, coming to terms and dealing admirably with being a single parent of a three month old baby. she is articulate, pleasant and responsible, and in every respect (except, shock horror, she has obviously had sex, how very dare she!)a credit to her parents and dare i say, the society that raised her? social security law (at present) does not require that she is so personable, of course. How very much more difficult the interventions thus far have made life for her. (It was the council tax summons which pushed her in my direction)

What has actually been achieved? The objectives of Sure Start completely undone, a £500 quid debt conjured up for her from nowhere. Incalculable effects of stress on vulnerable individual taken to court before you can say excuse me? How much did it cost the public to achieve this?

i thought it worth mentioning all of this, and sorry if i have put people to sleep, because of the proposals/threats for state intervention with the ultimate sanction of taking baby from mother and placing it in state 'care', and stages in between...

here endeth my friday rant...i know it's not funny.

JJ – I am certain that you don’t need telling this, but without there first being a suspension of benefit there is no basis for terminating benefit for not supplying evidence. Reg 14 of the D&A Regs starts with

“A person in respect of whom payment of benefit or a reduction has been suspended-“

No suspension, no power to terminate for not supplying evidence, it is as simple as that.

The LA are therefore clearly in the wrong and will certainly lose the appeal.

i know...and rarely expect to go the tribunal with HB appeals...what bothers me is the size of this juggernaut...and the people who don't get advice...