My client objects to having to take a day off from work to receive visiting officer.
I have called the HB office and was told that they do not arrange visits on Saturdays. Is there any scope for us to argue that week-day visit is unreasonable?
I am also quite unhappy with a bulliysh tone of the letter, which states that the benefit will be terminated if client fails to keep the appointment.This is despite the Housing Benefit/Council Tax Benefit Security Guidance 2006/2007, parts 6.71-6.74 http://www.dwp.gov.uk/publications/dwp/2006/hbct/security-manual.pdf
I wouldn't mind being slightly akward- it puts my back up if a large organisation tries to bully a vulnerable client.

yes - it's hideous isn't it?
if your client is working it is reasonable for them to take account of any difficulties she has in taking time off work... there are alternative methods for carrying out their checks...i'd suggest responding in writing to inform them of her difficulties with the appointment they have given her, and hopefully they will accomodate her availability...
the law does not give them the power to terminate housing benefit entitlement because she doesn't comply with an inconvenient appointment per se...

Joanna,

Before deciding what, if anything, can be added to jj's post, a bit more info may help - it could make a difference to the info I may be able to offer.

In short, what is the purpose of the visit? Is it for an "intervention" (i.e. a review to confirm entitlement)? Is your client being investigated?.

In the meantime, ask the LA to explain in any case....

1) the reason(s) for the proposed visit; and

2) the legal basis for such a visit (both in terms of requesting and then requiring).

The answer to the second question will be most interesting.... and will provide the major basis for any further info / advice to be offered.

Regards

Thank you for your responses guys. The client is not investigated; it is a routine entitlement review. Attached to a letter is a claim review form. It's the phrase then infuriated me; the benefit will be terminated if she is not at home when the call.

Right - that helps. And, it would make the answer to the 2nd question even more interesting..... .

Also, LAs are just gonna hate this post.....

A bit of background first. Prior to April 2004, HB/CTB was awarded on the basis of "benefit periods". At the end of such a period, LAs were (normally) required to invite clmts to make a renewal claim. If no new (renewal) claim was forthcoming, benefit simply ended. There was specific legislation for this process (1987 regs: HBR 66 / HBR 67 / HBR 72(14?)).

However, those provisions ceased from April 2004. In place of the benefit period / renewal process, the government introduced what are widely known as "interventions". But, the snag is, there was no legal basis for this new process. In my view, it has no greater status than verification framework (now defunct itself). More than one Commissioner pointed out that VF was simply an admin arrangement between the DWP and LAs; it had no legal status.

So, to your case. It's an intervention. There is no legal provision for such a process. It has also long since been established that an LA cannot supersede, or revise, a decision unless grounds exist. Further, an LA can only terminate under DAR 14. This relies on the clmt failing to provide evidence / info under DAR 11, or DAR 13. However, in broad terms, an LA can only request further info / evidence if "a question has arisen in connection with his award of benefit".

In the case of your client, no question arose in the first place about the award. Any question NOW subsisting has been self-generated by the LA - with no legal basis to do so (at least in my view). The question simply eminates from the original action of the LA - not a genuine question in connection with the award (e.g. such as a change in circs).

Further, although clmts are required to notify LAs of changes in circs (in writing), there is nothing requiring a clmt to notify an LA that there has NOT been a change in circs.

The issue of visits.... In CH/4390/2003, the Cmmr stated in para 3 "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." No legal authority was quoted for that, specifically in respect of HB/CTB. No wonder - there is none.

The Cmmr went on to find that CTB 63 (1987 regs) did allow an LA to visit; but, still found (in para 11) that the LA had "...no right to insist on entry into a person’s home in this context". HOWEVER, this finding (re visiting at all) may be arguable. In R v Liverpool CC ex p Johnson (1994), it was found that HBR 73 (same as CTBR 63) did not provide a LA with the power to require info / evidence orally. Johnson does not appear to have been considered in CH/4390/2003.

www.rightsnet.org.uk/pdfs/Liverpool_ex_p_Johnson.doc

So, based on all of the above, in the first instance, my strictly personal view is that interventions have no legal standing. In any case, LAs only have the power to request a visit (presumably to check occupancy) - but not to insist on an "interview" or entry to the premises.

For the record, I offer no personal view (in this post) as to the morality of interventions. Ultimately, only the law counts.

Irrespective of any legal question about the right to make an "intervention", it is wholly unreasonable for your client to lose a whole day's work.

Doubtless, others will have more to add.

I don't disagree with anything Kevin has written, but I would ask if the possibility of a whole day off work arises because the LA cannot give a time for the visit? If so, that in itself is poor service. No-one, in work or not, should have to hang around all day waiting for a VO to call. Sounds like someone's ticking boxes having forgotten that there's people involved.

The Review Team told my client to be available between 9am and 4pm.
My client would like to challenge this; she says she is happy to take two or three hours off work but not a whole day. She has a severly disabled child and annual leave days are precious to her. Also, there has been no change of circs but the letter she received expressly forbids her from sending back the Review For and evidence; she must wait to hand it in to VO.
I would like to help her in challenging these unreasonable demands but she cannot afford to have her benefit suspended. I understand that LA would agree to re-arrange the date of visit but sooner or later they may decide to suspend the benefit.
Anyway, I am writing to the HB dept tomorrow; we'll see how flexible and common-sense will their attitude be (I know, I am a dreamer...)

I would suggest client/you find out who local councillor is, make appointment and discuss matter with them - or just ring them up . Councillor likely to then bring it to attention of LA`s Chief Finance and Perfomance Officer ( or whatever title is in your LA ) and matter may be resolved in a more satisfactory way.

The LA is being unreasonable. I'm a VO. I'd make contact with the claimant and ask her what time she gets home and do the visit then, even if I had to do it on my way home. Simple really.

OK here is my two cents...
Basically the LA are acting unreasonably and I wholly agree with the bulk of what has been said above. However, an LA is entitled to ask questions about someones entitlement to welfare benefits to ensure that they continue to be entitled to them. And I recall that there is case law (don't ask me for the CH number) which even says they can visit and that VF is lawful.

But the real issue is what are the LA seeking to do by visit that they cannot do by telephone intervention, by a visit to the office or by a postal form? All these are permitted within the interventions framework.

Typically, LAs risk profile client groups with data they receive from the DWP. Many LAs take the most 'risky' (if there is such a thing) clients at the top of the list and arrange home visits. DWP research I saw last week from the Housing Benefit Support Division at the DWP shows that this is an effective way of discovering undeclared changes in circumstances.

Presently the Govt are trying to reduce the £570m fraud and error in the HB and CTB system, much of which is due to a sharp decrease in the failures of customers to report changes since the abolition of benefit periods in 2004.

The most useful reason for an LA doing a home visit is to ensure that residency is confirmed. Fraud and error in HB and CTB from residency last year was the largest single totalling £137m of overpaid HB and CTB. A reasonable way to manage this risk is to carry out a home visit, but its not the only way...

Your client is acting very reasonably in offering to be at home for a shorter period to lose less wages, or by offering a weekend visit. The LA are not in my opinion acting reasonably, here hence I feel you should begin with a formal complaint. There is for example no reason why the LA visiting officer could not see your client first or last that day so she can get to work... this is something I have done in the past when managing my visiting officers.

I agree with the earlier contriubtor who explained that perhaps her local councillors should become involved. The real daft thing here for me, is that LAs are supposed to being supporting benefit claimants doing exactly what yours is doing, i.e. working! Perhaps a little less red tape and a lot more common sense is needed. I wish you and your client the best of luck...

nowly wrote:

"However, an LA is entitled to ask questions about someones entitlement to welfare benefits to ensure that they continue to be entitled to them. And I recall that there is case law (don't ask me for the CH number) which even says they can visit and that VF is lawful."

The CD you refer to has already been cited above - it's CH/4390/2003. Some of the observations set out in my earlier post, are repeated for ease of reference, but with underlining to make some points in response to your post:

-----------------
"The issue of visits.... In CH/4390/2003, the Cmmr stated in para 3 "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." No legal authority was quoted for that, specifically in respect of HB/CTB. No wonder - there is none.

The Cmmr went on to find that CTB 63 (1987 regs) did allow an LA to visit; but, still found (in para 11) that the LA had "...no right to insist on entry into a person’s home in this context". HOWEVER, this finding (re visiting at all) may be arguable. In R v Liverpool CC ex p Johnson (1994), it was found that HBR 73 (same as CTBR 63) did not provide a LA with the power to require info / evidence orally. Johnson does not appear to have been considered in CH/4390/2003."
---------------------

With specific regard to VF, there are at least three CDs where it was expressly found that VF had no legal status - it was nothing more than an administrative arrangement between the DWP and LAs (see CH/0999/2002 (para 1); CH/2323/2002 (para 1.3); CH/5088/2002 (paras 10-14)).

In my view, the legal status of "interventions" is no greater that that of the now defunct VF.

As the leglislation currently stands, I'd be happy to argue against any LA that could only produce CH/4390/2003 as the basis for interventions. Given the existence of "Johnson", it may be quite possible to argue that LAs don't have the power to effectively "require" a clmt to be present during a visit.

Regards

I think Kevin has it spot on.....

It is clear that the LA are seriously in breach of Wednesbury and the requirement to take a day off so that the LA can undertake a visit at a time it sees fit is v. likely unlawful at common law, but given the nature of a parent with a child, (let alone one with a disability!), there is another angle that could be taken... S.11 of the Children Act 2004...

That section requires LA's (including District Councils without Social Services functions), to ensure "their functions are discharged having regard to the need to safeguard and promote the welfare of children; and any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need".

The parent losing a days wage is not in any way going to assist that child! The parent of that child is clearly on a low wage, (hence on HB), and the child by virtue of being disabled, is a "Child In Need" under the provisions of the Children Act 1989 (S.17 (10) (c)).

Given the parent and child are vulnerable, the LA is not just required to ensure the child is not disadvantaged (the loss of family income), but actually the LA must act to safeguard and indeed promote the welfare of the child (doing their utmost to ensure the family’s income is maximised!). Therefore, a visit can and should (MUST) be undertaken that fits in with the parents working pattern, even if that is outside 'normal' office hours and is in the evening.

Failure to undertake an evening visit (assuming a visit is actually deemed necessary), might also give rise to the provisions of the HRA being engaged. Article 8 and 14 might apply. The threat to stop HB is the person is not in when the visiting officer calls, might also give rise for an argument under Article 1 of the 1st Protocol...

These arguements could be made to the LA, but an elected member might get things done quicker as suggested above... There is also the LAs complaints process, or the LGO if the LA is stubborn, (could also contact the LGO without accessing the LA's complaints process because of the more urgent nature of the threat to stop HB, but the LGO might refuse to accept it, and it might also take them a while to investigate), but I hope this offers another angle if the above fails...

Dear all
Thank you very much for this informative posts. The LA has agreed to visit my client in a 3 hour window from 9am, which still means that the client will have to take a half a day off. She has agreed nevertheless because the HB dept called her and they have insisted that they have a "power" to terminate the benefit. I have since written a formal complaint (2 weeks ago) but have had no answer. Looks like my client was intimidated and I am not suprised, because the original letter was most incorrect and very bullyish, stating plainly that in case of non-compliance with VISIT (not just being unable to check entitlement) the benefit WILL BE terminated.
I will update the thread if I have developments.

On the question of entry. A person with a proprietary interest in land can exclude the world. Anyone entering on to his/her land without permission is a trespasser and may be the subject of a claim for damages in the courts.

So, no! The LA cannot demand entry as neither a court nor statute has given it that right.

A licensee would be more vulnerable however, as the leaseholder may give the LA permission to enter. But the licensee has a right to reasonable notice, probably from the leaseholder rather than the LA. Although it may be considered that the LA has not acted reasonably if it did not also give notice.