Reply To: Benefit Cap cases for claims paid in advance

#162421
d-stainsby
Participant

You do not create an overpayment.

Regulation 75B provides (emphasis mine)

Determination of whether a benefit cap applies

75B. The relevant authority need not determine whether the benefit cap applies, or whether to change the amount of any reduction made in accordance with regulation 75D, unless it receives notification from the Secretary of State that the benefit cap may apply or that there has been a change in the amount of a welfare benefit to which the claimant is entitled (but nothing shall prevent the relevant authority making a determination as to whether the benefit cap applies, or the amount of any reduction, if it has information or evidence suggesting that it should do so).

Regulation 75D (1) provides

Reduction of housing benefit

75D.—(1) Subject to paragraph (2), where the benefit cap applies, the relevant authority must reduce the amount of housing benefit to which the claimant is entitled by virtue of section 130 of the Act by the amount by which the total amount of welfare benefits exceeds the relevant amount.

Whilst is it the case that you must apply the cap once you have been notified that it may apply, the determination of the cap is yours alone, and you are certainly under no obligation to determine it until the DWP has notified you.

If the DWP does not notify you until after the entitlement has been paid then it is not your problem.

Its practical effect  similar in some ways to the changes  that the DWP  have to notify you of in pension credit cases.  The effective date of the change of circumstances is the Monday following receipt of the notification from the DWP in those pension credit cases, but I note that the determination of the benefit cap is not a change of circumstances as defined in Regulation 79 of the HB Regulations 2006, although changes in welfare benefits  payable are bulding blocks in that determination.