The situation is that the claimant became entitled to IS in Jan 2008, but didn't claim IS until Nov 08. She has received 3 months' backdating of IS but has missed out on IS for the period Jan 08 - Aug 08.

During this time she was getting partial HB.The level of her income, including Child Tax Credit and Child Benefit, was too high to get full HB. However, if she had claimed IS she would have been awarded IS (because of CTC and CB being disregarded as income) and hence been entitled to full HB.

Her HB claim was revised several times during the relevant period and she also had a lot of contact with the local authority Housing Support Service including case conferences about rent arrears, but nobody seems to have spotted that she was entitled to IS.

My colleague mentioned that he had heard of a commissioners' decision saying decision makers had a duty to notice potential entitlement to other benefits. Does anyone know of this? Is there any mileage in arguing that the local authority have failed in their duty to inform her of her potential entitlement, and pursuing an ex gratia payment/compensation?

"....During this time she was getting partial HB.The level of her income, including Child Tax Credit and Child Benefit, was too high to get full HB. However, if she had claimed IS she would have been awarded IS (because of CTC and CB being disregarded as income) and hence been entitled to full HB..."

I'm not clear what you are saying here - when one does a HB/CTB calculation one calculates the applicable amount which for a lone parent with two children is at present £182.43 and deduct from that figure whatever benefit income she has. This will clearly show that her income is less than her applicable amount and therefore she is entitled to full HB/CTB and would have been from day one of the claim.

On a general point In this Authority when a claim for HB/CTB is calculated the fact that the claimant is Underneeds is flagged up. This information is passed to us, and we in turn write out to the client along the lines of "...on the information you have supplied to us it would appear that you may be being underpaid benefit", with an invitation to contact us by phone when we can carry out a benefits Check using a cute gizmo called QB. Where necessary we will follow the claim up offering help with applying for the appropriate benefit.

In your case, considering the number of contacts this customer had with various officials, I'm surprised nobody has flagged this up before.

However, I'm not too sure that we have a legal obligation to do this, although it is extremely good practice, makes for good public relations and of course adds to our stats. An icreasing number of of Benefit checks are now carried over the telephone , and we have also trained our CIC use QB and to carry out the same calcualtions.

Thanks. To clarify:

The situation arose partly because the claimant was getting Child Benefit and Child Tax Credits for 3 children at the time, but only 2 were living in her household. The other child (16) was living next door and she was helping to maintain him but he was claiming HB in his own right, so could not be included in her applicable amount. Her income included £221 per week CTC and 43.90pwk Child Benefit, plus £67.68 widowed parent allowance (£15 disregarded for HB), giving a total of £317.58 per week (plus DLA for child). Her applicable amount for HB was £231.15 including a disabled child premium, so for HB purposes she had excess income but for IS purposes her income was only £57.68 (£10 of WPA disregarded for IS) ie below the applicable amount of £60.50.

Actually it appears she may have been overpaid CTC, but HB is based on the amount of CTC actually paid. So it seems that the HB calculation was correct, they just didn't spot that she could have got IS.

Based on the info given, the LA would not have been under a duty to inform the clmt of possible IS entitlement. In fact, with income exceeding the applicable amount (for HB/CTB), the LA would have not reason to think IS would be payable - LAs don't necessarily have detailed knowledge of other benefits (er, no comments about HB/CTB knowledge levels....).

I'd be VERY surprised if there was legal authority placing a DUTY on LAs to advise clmts of entitlement to benefits other than HB/CTB, although LAs are under a duty to advertise HB/CTB. That said, some LAs do have their systems set up to identify cases where income is less than the applicable amount, with notification letters suggesting that a clmt *may* be entitled to IS / JSA / PC / ESA(IR) etc.

There is something in the Housing Benefit Guidance Manual issued by DWP to all LAs:

"2.90 LAs are expected to make claimants who appear to have a potential entitlement to Income Support (IS) or income-based Jobseeker's Allowance (JSA(IB)) or Pension Credit aware of the help that may be available to them from DWP offices."

Seriousness aside isn't, "...help that may be available to them from DWP offices" an oxymoron?

Thanks everyone.

I understood there was some kind of contractual agreement between DWP and Local Authorities that LAs would identify and inform about potential IS entitlement where appropriate. I assume this will be in some kind of Service Level Agreement (someone else might know the exact whereabouts). Not sure whether this places a statutory obligation on LAs but might give you something to go on if you can find it.

It would also depend what the wording of the agreement is I guess. My suspicion is that there would be enough wriggle room for LAs to meet their obligations by putting a general statement on the bottom of their letters for those getting full HB/CTB, as many of them do, but there might be something more substantial that you could run an argument on if they have missed something obvious.