We have been in the midst of a Housing Benefit appeal for a large number of residents. The appeals were made well over 2 and a half years ago, and the council have only recently forwarded the appeals to the Appeals Service.

Originally the council used a test case, which went to Tribunal. The tribunal was adjourned as the District Chairman requested a Community Care Assessment for the test case. The council conceded and paid the test case before it went to a second Tribunal but did not pay the remaining residents. At this point they asked for Community Care Assessments for each resident who had lodged an appeal as they wished to assess each resident individually. These were provided in December 2003. The Council took almost 10 months to respond to the assessments and performed an anytime review in September this year. They made the decision to continue restricting the residents rent, and have finally sent the residents appeals to the appeals service.

Housing Benefit have now requested that we provide new CCAs for each current resident as they consider the previous assessments to be out of date. The previous assessments were performed by a number of social workers who did not know of the details of our appeal situation, and the assessments produced were favourable to our residents appeals. Housing Benefit have now appointed a single social worker to perform the new assessments who seems to know a lot about the appeal situation. We are suspicious as to their motives in requesting new assessments, and believe the social worker has been briefed. We responded by informing the council that there has been no change in circumstance for these residents and unless the District Chairmen requests new assessments we are happy with the ones we have obtained.

Housing Benefit have responded by suspending our residents' benefit until we have new assessments performed. They have said that they have suspended their benefit under Regulation 11 of the Housing Benefit and Council Tax Benefit (decision and appeals) regulations 2001, because the previous CCAs are more than 12 months old. They have said they need the new assessments to identify their accommodation needs and to assist the council in ensuring the residents’ HB has been restricted to the correct level. They have quoted part of the Supporting People framework which says needs should be assessed at least annually, and therefore consider it reasonable to ask for new assessments, (Although I understand this to refer to internal assessments performed by our staff).

Can anyone advise me how to respond to this? Are the council able to demand annual CCAs as part of rent restriction under regulation 11 (2001). It may be the council have purposely delayed responding to the previous CCAs so they will become out of date.

I would appreciate advice in how to deal with this and whether the council are justified in doing this. Thanks.

The position appears to be as follows;

The Council made their decisions to restrict prior to having any CCAs in place. It is that decision that you (your clients) challenged.

The Council then used the original CCAs to undertake what I assume must actually have been a consideration of a supercession but decided one was not necessary. It is difficult to see how there could have been an anytime review unless the Council are admitting Official Error in which case one could have expected them to revise their original decision in the claimant’s favour.

I don’t see any thing that prevents the Council obtaining new CCAs to again allow them to consider a supercession, however, I cannot see any justification for this being allowed to delay or interfere with your appeals against their original decision.

As a Benefits Manager myself I don’t often find myself advising people to go to the ombudsman. However from the situation you describe, two year delays in referral to the Appeals Service and a refusal to implement the results of a test case that they themselves set up, is clearly unacceptable. The Ombudsman has stated that Councils should refer cases to the Appeals Service within 28 days and (IMO) will find mal-administration in these cases.

As a first step I would write to the Council complaining about the delay, and saying that this has caused considerable distress and potential financial loss to your clients which requires the immediate re-instatement of your client’s benefit and significant compensatory payments to each.

I'd go for the ombudsman too, and not just on the delay. If the council is a unitary council then, if it decides that CCA's are necessary (and I'm not sure on the info you have given why it should) then it must arrange to do this a lot quicker, but if it is not a unitary, then it cannot demand that a third party do anything.

The Local Government Ombudsman's website @ www.lgo.org.uk, as well as explaining how to complain to them, also gives useful summaries of housing benefit complaints where local authorities have been found guilty of maladministration.

Thanks. We have complained numerous times to the council over the last year to very little avail. I am in the process of making complaint to the Ombudsman which I think would be the best avenue. I think I may be able to clarify my concerns a bit further:

In Sept 2004 the council stated that they performed an anytime review in accordance with Reg 4 of the HB (Decisions and Appeals) regulations 2001, in which the original decision was reconsidered. The council reviewed whether the decision to restrict rent is correct and whether the accommodation originally pointed to was a suitable alternative. It was decided that the original accommodation was suitable and it was reasonable to expect the residents to move taking into consideration the needs revealed in their CCAs.

However, the alternative (local) accommodation previously referred to had closed down 17 months prior to this anytime review, and the council added a list of further accommodation (nationwide) that they now considered suitable in addition to this service. They considered that this additional accommodation had also been available since the original decision and stood as a suitable alternative from the point of the original decision. They then restricted our residents’ rent levels to that of the highest charging newly discovered alternative accommodation - from the point that the original accommodation closed down. As the highest charging newly discovered accommodation charged less than the original accommodation it was stated that an overpayment had been made over 17 months. This was put down to official error and our residents were not asked to repay the amounts owed.

Hence this review appears to be a new decision that has been backdated to the point of their original decision. I would like to know if the council can do this? E.g. come up with new evidence and backdate it.

I am concerned that if they can backdate new decisions in this manner they may also be able to use new CCAs somehow to supersede the information provided in the original CCAs.

The council are presenting to the Appeals Service that we are appealing the newly made decision, although the residents appeals were made prior to the anytime review, and as you have rightly said, they are appealing the original decision - prior to the council researching and discovering further (suggested) alternatives.

It would also be great if you could let me know whether the council can demand CCAs from our residents and if they can suspend their benefit as they have.

Thanks for your time.

The function of the CCA was to determine whether or not the support charges were eligible under THB. It does not have any other function in the HB context.

Now that THB has ben abolished and replaced by supporting people, the only issues relvant under (old) HB Reg 11 is whether the claimant comes under any of the provisions of Reg 11(3) (incapable of work, over 60 etc) and also the question of the availability or otherwise of suitable alternative accommodation.

Once this is the case, then the burden of proving suitable alternative accommodation is available is on the Council. The Council can not insist on a CCA in order to help it carry that burden.

I would send a pre JR protocol letter to your LA's legal department as the process that the council is persuing is a breach of HRA Article 6

I would also suggest that a community care assesment is akin to a medical opinion. A diferent medical opinion of itself is not grounds for supersession, (see for exmaple R(M)5/86) nor are alleged failures of consideration.

It was noted by the Commissioner in R(SB)4/92 at para 11 that:

“Such alleged failures of consideration are not equivalent to the mistakes of fact. “

A CCA would be unlikely to reveal any new primary facts which could give rise to grounds for supersession. Secondary facts which are in effect matters of judgement and are part of the conclusions reached on which the ultimate matter for determination or decision is made, do not amount to grounds for supersession. The distinction between primary and secondary facts was addressed by the Commissioner in R(S)4/86.

I suggest that the decisions which created the so called official error overpayments are not valid as the grounds for supersession were not there, and so that decison should be of no effect, but you would need to submit late appeals in order to challenge them. You can submit a late appeal on the sole ground that the substantive appeal has a reasonable chance of success.

There are a number of recent Commissioners decisions dealing with old Reg 11 restrictions on the Commissioners website