Morning,

I know this subject has been raised in previous postings but just wanted to check to see if there was a definitive answer on this subject.

I am advising a client who is in receipt of HB and has been for a number of years. He will be better off in receipt of LHA.

Is he allowed to voluntarily withdraw his current claim for HB and then reapply to have it assessed under the LHA rules?

A couple of additional questions:

1. If he does withdraw his claim does he have to give a reason for wanting to withdraw or is it acceptable to just ask to withdraw the claim without a reason?
2. How long does he have to wait to reapply for the claim to be assessed under LHA rules? Some of the previous postings seem to suggest a month, some suggest a week?

Working for a Housing Association this isn't a situation I have any experience off, I'm advising this client as part of a different advice role.

Any help, comments, advice would be gratefully received.

Kind regards

John

There is still some discussion on this issue but the majority view is;

1)He needs to apply for a supercession on the basis that he no longer wishes to receive payments.

2)There then needs to be a 1 weeks gap in entitlement.

3) He then needs to make a new claim which will be processed under LHA rules.

Thanks for the prompt response, much appreciated

We have a LA in our area who is refusing to let claimants do this!

At the moment we are on the fence as to what to advise clients.

I am of the opinion that the clients should ask HB to cancel their claims, wait one week and then claim again, hence being entitled to LHA.

I am not aware of any regulation that would allow the LA to refuse the new claim but would be grateful for any other opinions.

just to join the dots .... the other threads on this are @

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=102&topic_id=6389&mesg_id=6389

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=102&topic_id=6582&mesg_id=6582

As suggested elsewhere, this is a mess.

In my view, there will be no definitive position until / unless the situation is tested at Cmmrs. At the HBinfo conference in Sept 07, a delegate raised this issue with a DWP speaker who "confidently" advised this would not be a major problem.

No one I have spoken to, working for a LA, was at all convinced by the DWP's position.

In summary, there appear to the three basic lines of thought (all of which potentially have merit):

1) the week's "gap" + new claim is allowed and LHA rules apply; or

2) there isn't a relevant change of circs to allow the LA to create a convenient gap; or

3) gap allowed, but new rent level has been created to take advantage of the HB scheme (this relates to the numerous cases where L/Ls have increased rents to LHA levels & for no other credible reason).


Once again, congratulations to the DWP for yet another superb example of benefits "simplification".

Our LA ( Greenwich ) doesn't have a problem with this at all. We discussed it with them and they agreed that, in the light of DWP circular G10/08, it was possible to terminate an exiting claim for HB and go onto LHA after 1 week provifded it is done in an " informed and unequivocal manner".

They suggested a form of wording to use in a standard letter to terminate existIng HB - I have done this twice now with no problem.

We have also managed to do this for clients without much problem.

HB runs Monday to Sunday so stop it Friday start again on Monday.

Worth noting that if they are a couple claiming you can stop and start a new claim using the partner (Swapping claimants) in the same week so there will be no gap or one weeks benefit lost.

Thanks for all of your responses.

On the other side of the coin, we also have an LA in the area that will actually work out if the claimant will be financially better off by changing to LHA and will assist with making the new claim!

Madness!

It's unbelivable isn't it.

So much for trying to simplify the benefits system.....

Have a good weekend all

I am in the process of helping my son with a withdrawal and re-claim under LHA rules and have prepared a draft submission in readiness. Here it is for the moment

The starting point is para 2 of Sch 7 Child Support Pensions and Social Security Act 2000

Decisions on claims for benefit
2. 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.

Supersessions are dealt with under para 4

Decisions superseding earlier decisions
4.—(1) Subject to sub-paragraph (4), the following, namely—
(a) any relevant decision (whether as originally made or as revised under paragraph 3), and
(b) any decision under this Schedule of an appeal tribunal or a Commissioner, may be superseded by a decision made by the appropriate relevant authority, either on an application made for the purpose by a person affected by the decision or on their own initiative.

(3) In making a decision under sub-paragraph (1), the relevant authority need not consider any issue that is not raised by the application or, as the case may be, did not cause them to act on their own initiative.
(4) Regulations may prescribe the cases and circumstances in which, and the procedure by which, a decision may be made under this paragraph.
(5) Subject to sub-paragraph (6) and paragraph 18, a decision under this paragraph shall take effect as from the date on which it is made or, where applicable, the date on which the application was made.
(6) Regulations may provide that, in prescribed cases or circumstances, a decision under this paragraph shall take effect as from such other date as may be prescribed.

The Regulations in particular prescribing the cases and circumstances in which, and the procedure by which, a decision may be made are Regulations 7 and 8 of the HB/CTB (D&A) Regs.

Mr Commissioner Mesher held in CJSA/3979/1999 that a person can withdraw his claim for the future. He distinguished the earlier decisions R(U)2/79 and R(U)7/83 because in those earlier decisions, the claimant had sought to withdraw retrospectively.

CJSA/3979/1999 was decided before the provisions of the 1998 Social Security Act came into force, but Mr Commissioner Jacobs held in CDLA/1589/2005 that the reasoning held in CJSA/3979/1999 still holds good.

Para 2 of Sch 7 of the CSPSSA 2000 is in the same terms as S8 of the social Security Act 1998 as it applies to other Social Security benefits and the conditions for superseding decisions under the HB/CTB regime are now in the main the same as for other social security benefits.

It follows that a superseding decision alters or ends an AWARD of benefit. It cannot end a CLAIM because that claim ceases to exist once a decision has been made by virtue of para 2 of Sch 7 of the CSPSSA.

As Mr Commissioner Jacobs remarked at para 1 of CDLA/1589/2005

“it remains good law that a claimant may surrender an award of benefit”

Under Regulation 8 of the D&A Regulations, a supersession takes effect from the first day of the benefit week following the change of circumstances (in this case the first day of the week following the “notice of withdrawal”)

Once an award is withdrawn, a new claim will have to be made. A person is entitled to benefit from the first day of the week following the date on which a claim is made or treated as made.

There seems to me nothing in the primary legislation, the main Regulations or the D&A regs that would preclude the possibility of someone surrendering and award by giving notice, and then later making a new claim all in the same week. This may appear to go against common sense, but providing both actions are carried out by the claimant in the same benefit week in the correct sequence, and then there seems no reason why the subsequent claim should not take effect immediately after the end of the previous award. This is exactly what happens as a matter of course to extended payments with in work claims made during the extended payment period.

Note also with extended payments, the person becomes entitled to them by being treated as having made a claim

It becomes even more difficult to see where the one week gap comes from in the DWP guidance. I think the DWP are looking at entitlement beginning the week following the date the claim is made, and also the fact that nil awards cannot be superseded. Theree seems to be some confusion in the DWP guidance because we are actually looking at superseding a decision on an award in payment, bringing that award to an end, and then deciding a new claim made in the same week as the “change” envisaged in CJSA/3979/1999.

Now that all awards are made for indefinite periods, there is only one express provision in the HB Regs for benefit to end (Reg 77 date on which housing benefit is to end). This rests on the end of entitlement to a relevant benefit on account of starting work and the conditions for an extended payment are met. Any other change of circumstances of itself may not necessarily end HB.

Of course there are any number of changes of circumstances which may provide the grounds for a supersession, the outcome of which results in the end of HB. This may be for example the purchase of the home or acquiring capital of more than £16000. Whatever the change, the outcome can only come about after a superseding decision.

With other social security benefits, probably the most common instance where it’s necessary for someone to surrender an award is that of a person renouncing an award of carers allowance because of its impact on the severe disability premium for the person being cared for. Another reason in the HB context is where a claimant surrenders an award in favour of his partner. (There maybe any number of variations on this theme where couples “swap roles” in relation to who is the claimant)

It’s very difficult indeed to see how the choice as to who should be the claimant in the case of couples can be maintained without relying on CJSA/3979/1999 otherwise the choice would in the main be only exercised once. That choice would be exercised on the initial claim. If the choice can be exercised by simply surrendering the award following the reasoning in CJSA/3979/1999 it cannot have any effect on a subsequent claim by the other partner since there can only ever be one claimant. There is no such thing as a joint claim for housing benefit. (See another decision of Mr Commissioner Mesher CH/3817/2004.)

The DWP’s guidance is that:

Where a claimant wishes to end their award in order to avail of more beneficial Local Housing Allowance provisions, there must be a gap in the award of benefit before a new claim can be accepted, otherwise there will be no relevant change of circumstances to bring the original award to an end.

There may be no periods of nil entitlement where benefit must end on account of an extended payment being awarded and an in work claim is made on time. Similarly there may be no periods of nil entitlement where couples simply swap roles.

The acquisition of a partner of itself is not sufficient to provide grounds for a supersession ending IS or income based JSA (CIS/4434/2004), so it’s difficult to see how it would be sufficient of itself to provide grounds for ending HB.

There can be no doubt that if a claimant acquires a new partner, they must be able to come to an agreement between themselves as to who will claim housing benefit given that Regulation 82(1) prescribes that there is a choice and the regulation is written in the present tense. This leads to the inevitable conclusion that the choice can only be exercised by the original claimant surrendering the award. This can only be done by way of the authority making a superseding decision effectively giving permission for that to happen.

The partner must then make a claim in the same week as the date on which the original claimant renounces, in order to avoid any period in which neither partner is entitled.

There does not appear to be any reason to suppose that the same principle should not apply to a single claimant who wishes to surrender and award in order to benefit from the more generous LHA regime. The rules of supersession apply to all decisions on all awards and there is nothing in the primary legislation, the HB Regs, or the D&A Regs which requires a period of nil entitlement before a new claim can result in a new award.