I had a client with a reasonable argument for backdating on the basis of good cause for failing to claim at an earlier date. The potential backdating period goes back some time.

However, there is a period during the potential backdating period of just over 13 weeks in which she was out of the UK and therefore not entitled to recieve HB.

Is it possible to have a backdated period which a gap of non entitlement contained within it? or Can we only obtain backdating as far as the 13 week period, notwithstanding that she had an underlying entitlement and good cause for failing to apply for a period before she left the UK?

I would be very grateful for any assistance.

The requirement for backdating is that good cause must be continuous right up to the date of the claim for backdating - there is no requirement for entitlement to be continuous.

Strictly speaking, it could be argued that each self-contained period in a backdating period requires an individual claim, but that should be fairly easily remedied by wording the request accordingly.

Thanks Kevin,

The case is currently at tribunal. We've had one hearing so far in which both the presenting officer from the council and the tribunal chair were of the opinion that continous entitlement was needed. The case then adjourned.

Will the tribunal have authority to deal with the previous periods i've requested backdating for or have i messed it up by not putting in a seperate claim at an earlier point?

Thanks so much for you help so far.

Wed 27-Aug-08 03:00 PM by Kevin D

I should have checked - I'm assuming this relates to a working age claim.

On the continous point (good cause v entitlement), my view is that the LA and Tribunal have misconstrued HBR 83(12). This states:

Where the claimant makes a claim in respect of a past period (a "claim for backdating") and, from a day in that period up to the date of the claim for backdating, he had continuous good cause for his failure to make a claim, his claim in respect of that period shall be treated as made on—

(a) the first day from which he had continuous good cause; or
(b) the day 52 weeks before the date of the claim for backdating,

whichever fell later.

Notably, the provision starts of by referring to a claim "...in respect of a past period". I would argue, strongly, that this means ANY past period, irrespective of whether or not it is self-contained and irrespective of any other period of entitlement (whether or not subject to backdating). Further, the word "continuous" only appears in relation to "good cause". The continuity must be unbroken right upto the date of the claim for backdating - there is nothing to suggest this is dependent on other periods of entitlement.

Say you have a BD claim made on date D. The request is for HB to take effect from date A. Good cause must be unbroken from A to D. But, what if there was only good cause from, say, date C to D? That can still be awarded even if the claim was for the period from A. What if there was no good cause from C to D, even if that was only one day? In that case, no backdating can be awarded - the continuity is not right up to D. If this is confusing, apologies - may help to write it down as a time line diagram.

The one potential snag with the word "a" is that it could be argued that it means any SINGLE past period in relation to one backdating claim (i.e. only one period per claim). Would Cmmrs take a more, ahem, "flexible" view? If only I was telepathic....

Just one other thing, relating to occupancy. Bear in mind that, subject to "good cause" for the late claim, there may still be entitlement due during the period of temp absence if the clmt intended to return to the dwelling within 13 weeks. There is not a requirement to actually return; merely that there has to be an intention - although this must be realistic and genuine. HB entitlement only stops during temp absence if the intention to return within 13 weeks ceases.

Hope this helps.

Thats brilliant. Thanks so much