Hello, I hope someone can assist.

A client of mine recently asked for backdated HB to be paid to her, this was for a period of 6 weeks between 19/09/05 and 31/10/05. At this time her partner had left the accommodation and had been the HB claimant. He left and my client put in an application, this was received by the council on 14/10/05. Her ex-partner is currently paying back an overpayment, my client wishes to apply for a backdate for this period. Though the council agreed that she had 'good cause' for making a late claim they did not agree to pay because it was over the 52 week period.

My client had not been aware that overpayments were being taken from her ex-partner and had not pursued the matter at the time as she was mentally ill and incapable of managing her own affairs (she has a doctor letter to prove this).

I have been advised that it is very difficult to win an appeal against a decision to award a backdate of HB, despite there being a strong case. I would be grateful if anyone could share their thoughts on this, particularly if someone has had any recent cases that are similar. Would it be better for my client to claim compensation or complain to an Ombudsman?

Again, any assistance you can offer will be greatly appreciated.

Sarah

For the purposes of this post, I'm assuming your client is aged under 60.

With regard to backdating, the 52 week rule is absolute. The law, HBR 83(12), makes it clear that if a claim for backdating is made on any particular day, it cannot be treated as being made any earlier than 52 weeks before that day. In this case, the LA has no discretion.

In terms of complaining / seeking compensation, I'm a bit puzzled. What would be the basis of a complaint and/or a claim for compensation?

Regards

If your client did not make a claim for backdating until recently, there is no way that she can have her claim backdated for any period more than 52 weeks prior to the date of the claim for backdating.

However, if her claim was received by the Council on 14/10/05, her claim should have started on 17/10/05 so you can argue for an anytime review to grant benefit between 17/10/05 and 31/10/05.

Otherwise, I am not certain where you are suggesting the Council was at fault and therefore liable to pay compensation or likely to be found guilty of maladministration by the ombudsman.

Reg 83(5)(c) of the Housing Benefit Regulations of 2006

'Subject to paragraph (10), and to regulation 84 (date of claim where claim sent or delivered to a gateway office) the date on which a claim is made shall be—
c) in a case where the claimant is the former partner of a person who was, at the date of his death or their separation, entitled to housing benefit and the claimant makes a claim within one month of the date of the death or the separation, that date;'

Unfortunately the equivalent pre-2006 reg (Reg 72 5(cc))only came into force with effect from the 10th November 2005. So it looks like your claimant missed out. Had they split up a month later, should would have probably been ok.

I can only suggest her ex-partner asks the LA to use their discretion not to recover the overpayment. He could point out that the fact the Regs were changed does perhaps suggest the DWP considered the previous situation 'unfair'.

We need to look at the Regulations as of 14 Oct 2005. As far as I recall Reg 72(13) of the 1987 Regs at the time read:

"(13) A person may make a further claim not more than 4 weeks
after the end of his benefit period or the benefit period of his
partner or former partner for a further grant of such benefit to take
effect immediately after the end of that benefit period."

She should still be ok given that 14 oct 2005 is within 4 weeks of 19 Sept 2005

I'm pretty certain that reg 72(13) was removed with effect from the 5th April 2004 by SI 2004 (No. 14).

You are right. I kept a copy of the Regs as published on the DWP webisite as of July 2005 and Reg 72(13) still appeared, but looking at the savings provisions in SI 2004(No 14) Reg 72(13) was only preserved until May 2004 in certain cases.

Reg 75(5)(cc) only came into force on 10 Nov 2005. It sems that she is a victim of faulty draughtsmanship.