Our HB dept have done a very bizare thing. The client was investigated concerning a specific period for which they believe there is evidence that she was LTAHAW with a chap. The HB people sent the evidence they had gathered to IS who decided she was not entitled to income support for this specific period but left her current benefit running. When HB got this decision they "cancelled" her benefit from the first day of the period they suspect her for but right down to the date of decision. They later awarded "underlying entitlement" for the period from the end of the suspicion to the date of the "cancelling" decision and also awarded benefit from a later date on a new claim but are asking for reasons to backdate for the period between the end of undelying entitlement to the date of the new claim. I am stunned at how hard they are making life for themselves.

They are convinced that if they are superseding and come accross a week where there is no benefit entitlement no entitlement for any later date is possible without a new claim. I have tried explaining to them why this makes no logical sense but they are absolutely convinced. I will put in an appeal but they are not unfreindly or inflexible and if I can show to them that they are misguided they will alter their decision. Does anyone know of any circular, guidance or commissioner's decision which would explain this for them.

Leaving aside the issue of the LHAHW decision, the LA are right that, once a period of nil entitlement has been decided then a new claim is needed for ongoing entitlement.

This does no stop underlying entitlement being awarded for the whole of the overpayment period but a new claim form must be completed by the claimant for ongoing benefit.

It always looks daft when the nil entitlement period is small, but it is correct.

Actually it could be positively dangerous for an LA not to insist on a new form in these circumstances

See CH/269/2006

“Leave to appeal is granted because it is eminently arguable that the tribunal erred in law by failing to take account of the fact that the local authority had no power in law to review or supersede a "nil" decision. As there was, then, no subsisting claim for housing benefit or council tax benefit any money paid to the claimant was not excess benefit and was therefore irrecoverable under the housing benefit or council tax benefit provisions.”

Sorry I dont think I was clear. The period when entitlement was in issue was in the Spring. The decision on entilement was made in October. The authority are fully aware that she is entitled from May onwards. I am not suggesting that a supersession of a decision that someone has no entitlement is possible.

There is no reason why a decision maker looking back with knowledge of the circumstances for a past period cannot decide every week of that period on the basis of that knowledge. A claim has already been made for that period and a decision made for that period why would a new claim be necessary? This is how it works with all other benefits and I can't find anything in the DMA regs relating to HB & CTB that would make it different.

It is covered in the Child Suypport, Pensions and Social Security Act 2000.

Jeff

I have copied Schedule 7 para 2 below.
Jeff

2. Decisions on claims for benefit.

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.

Jeff,

The supersession decision was made in October so this para does not stop them considering entilement in May. This provision exists for other benefits it just stops someone getting supersession of a nil award.

Sorry Damian, but jmembery is correct. The timing of the "nil" decision is irrelevant.

Once a claim has been decided, it is defunct - it ceases to exist (per jmembery's reference to the CSPSSA 2000).

Thereafter, if there is any interruption of an award (i.e. a period of nil entitlement), any further entitlement can only be awarded if there is a new claim. This is because the previous claim no longer exists. As jmembery explained, if such an event leaves an overpayment outstanding for a period after the nil entitlement, underlying entitlement can still be applied for the period of that overpayment (underlying entitlement is not ACTUAL entitlement; it is simply a reduction of an overpayment by the amount that a clmt WOULD have been entitled to had a valid claim been in existence).

You asked for a CD. Again, jmembery's citation was correct and not at all selective. CH/0269/2006 makes it clear that a period of nil entitlement must be followed by a new claim. If payments are subsequently made to a clmt without a valid claim, such payments are not by way of HB/CTB - the benefit regs are simply not engaged.

I can understand the frustration if other benefits are dealt with differently in (apparently) identical circumstances, but it wouldn't be the first time that HB/CTB rules (particularly at regulation level) are not consistent with other benefits.

Sorry this is not the answer you are looking for, but my view is that jmembery is correct for all the (legally) right reasons.

Regards

One of the criteria for a living together decision is the stability of the relationship. If suspicion arose "in the Spring" but it was all over by May, that doesn't sound very stable to me (but maybe I'm a bit old fashioned on that). See CPAG Chapter 30 section 2 - under the "Stable relationship" heading it says "Marriage and civil partnership are expected to be stable and lasting. It follows that an occasional or brief association should not be regarded as cohabiting."

Now, if the cohab decision can be overturned and IS restored, the original nil decision on HB will also be revisable. You might succeed in getting a late IS appeal onto a tribunal agenda simply on the grounds that the appeal, if heard, has a reasonable prospect of success. You would need to show that the relationship did not amount to cohabitation on the evidence available to the DM at the date of decision. That presumably includes the benefit of hindsight because the relationship - such as it was - was all over by the time of the decision, and the DM had that evidence - he simply failed to give it appropriate weight. It would be different of course if the DM was considering retrospectively a relationship that had in fact been stable for some time but was now over; but in the circumstances you specify here I think the short time the relationship lasted is indicative of a lack of stability.

Otherwise, why not put forward the sequence of events as good cause for the backdating of HB? That after all was precisely what caused the claimant to fail to make a new claim on time.

Thanks Gerry, the IS decision has been appealed.

Kevin have you got a copy of that CD or a link on the internet?

Thanks

CH/0269/2006 - reproduced in full (bold is my emphasis):

----------------------------------------------------
DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This appeal proceeds by my leave and is against the decision of the appeal tribunal held on 13 October 2005. I set aside the decision of the tribunal for error of law but consider this to be an appropriate case in which to substitute my own decision, pursuant to paragraph 8(5) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000. My decision is that the local authority (the respondents) had no power to review or supersede any "nil" decision.

2. The appellant is the person who was in receipt of housing benefit and council tax benefit, the respondent is the relevant local authority. The tribunal upheld the respondent's decision that there had been recoverable overpayments of both benefits.

3. Both parties have consented to the decision of the tribunal being set aside, and to my substituting my own decision, on the basis of the reasons provided in determining the application for leave. Those reasons are:

"This case concerns an alleged overpayment although the appeal submission to the tribunal is very unclear. There is no coherent and chronological background to the claim and the overpayment. The papers do not include the original claim form or the adjudication history.

The claimant said (and it does not appear to have been disputed) that the only claim she made for housing benefit and council tax benefit was in 2002 and this was refused.

Paragraphs 13 and 14 of section 5 of the submission of the local authority to the tribunal seem to corroborate this: the computer records at document 13 show that "based on income she did not qualify for any benefit from 28 October 2002 however the claim was still live". The closing remarks are entirely contrary to paragraph 2 of schedule 7 to the Child Support Pensions and Social Security Act 2000 - if a claimant does not qualify for the benefit, or ceases to qualify for the benefit, then the claim is disallowed. It is not susceptible to being revived by a change in circumstances. To put it more plainly the "nil" decision could not be superseded and the claimant in those circumstances had to elect whether to make a further claim for benefit. The view of the local authority, however, was that because they did not close the claim it remained "live" on their computer system. They subsequently wrote to the claimant (document 89) informing her that due to a change in circumstances her claim for housing benefit had been reassessed (from 21 April 2003) and that her new entitlement was £49.35 a week. Council tax benefit was also reassessed from 1 April 2003. The claimant was subsequently issued with letters indicating an overpayment and the appeal was dismissed by the tribunal.

Leave to appeal is granted because it is eminently arguable that the tribunal erred in law by failing to take account of the fact that the local authority had no power in law to review or supersede a "nil" decision. As there was, then, no subsisting claim for housing benefit or council tax benefit any money paid to the claimant was not excess benefit and was therefore irrecoverable under the housing benefit or council tax benefit provisions.

If the respondent agrees that the decision of the tribunal is erroneous for the above reasons is it also agreed that I should substitute my own decision, to the effect as set out above? If not the respondent is directed to provide a full submission setting out the chronology of the claim(s) and decisions, providing a copy of the claim(s) for housing benefit and council tax benefit and addressing the above observations. If the appeal is contested then the claimant in due course should be well advised to seek welfare rights advice."

4. I set aside the decision of the tribunal for the reasons set out above. Those reasons also support and explain the decision set out in paragraph 1, above.



(Signed) S J Pacey
Commissioner

(Date) 15 May 2006


2
CH/269/2006

Kevin,

This decision just says a nil award cannot be superseded. In the case I'm refering to the claimant was actually awarded benefit. There is no doubt that a decision awarding benefit can be superseded. There doesn't appear to be any limitation saying that if in the process of carrying a supersession a DM comes accross a period of nil entitlement then the process of adjudication grinds to a halt and a new claim is required.

Well, we are clearly not going to agree.

But, in my humble opinion, that is exactly the effect of CH/0269/2006 (re requiring a new claim after a period of nil entitlement).

In support of the analysis, note further down the CD that the Cmmr refers to the fact that an o/p may be irrecoverable under the HB regs if benefit is paid without a new claim. That conclusion could not have been reached unless a new claim was needed.

Either way, it would appear that firstly an Appeal Tribunal is going to be looking at the issue (although, the grounds for admittance might be interesting!). If the Tribunal find for your client, I wouldn't be at all surprised if the LA took it to Comms (possibly depending on how much money is involved).

Regards