Terms & Conditions

[Julian Hobson]

Here Goes !!!!!!! You asked for it

[b:bf1652e3e6]Question to DWP re Abolition OF BP’s[/b:bf1652e3e6]

[b:bf1652e3e6]Question 1[/b:bf1652e3e6]

Bernard – The question has been put by others and I’m unhappy with the answer Question 283 of the log refers.

Question 283 – From what we understand so far, no regulations yet, have been put in place to allow us to cancel pensioner’s claims for HB/ CTB where they have lost their entitlement, (eg deceased or capital or income increase). Without the provisions for ending benefit periods, it appears that claims for benefit would
remain permanently open? Will there be regulations made to allow LA’s to close/ end these claims for HB/ CTB?

Answer 283 – Reg 68( 1) refers. These are changes of circs which would cease entitlement. The non- existence of benefit periods makes no difference. If entitlement ceases, so does the claim.

Current state – Pensioner ceases to be entitled to HB at address A because moves LA can treat as Change of Circs OR end the BP. We would currently use reg 67(1)(c) to end the BP.

From A day – Reg 67 ceases to apply to pensioners so no provision to end any pensioner claims they are therefore open ended and so all of the Claim, backdating etc provisions of the regs cease to apply as the original claim is still open. All that would happen is that everything becomes a change of circs which DOES NOT end the BP.

The only way in which the answer at 283 of the log could operate is to end entitlement to HB because rent is now £0.00 but the BP would continue and any subsequent Tenancy would simply result in HB starting up again irrespective of dates of claims etc. Reg 68(1) does not and cannot operate in the way you suggest, you can’t look at it in isolation you must look at it in terms of the way it interacts with all the other regs.If anything reg 69(4)(c) and 69(5)(c) apply but still do not end the BP and further they don’t specify what would happen in any subsequent weeks.

The only way in which a BP can be terminated save for reg 67 is reg 14 of the DMA regs.

I really do need this resolving so that the basis for decision making is known and can be explained to the customer and tribunal/commissioners satisfaction. The answer given thus far is technically and legally wrong.

Thanks Julian
(Bernard replied saying on leave Gary Rodgers to deal with query)

Hi Gary – I mailed Bernard on 02/09/03 which has been forwarded to you, I have looked in more detail at the questions log and find that a significant number of colleagues have raised the same issue and received the “reg 68(1) response”. I’m at a loss to see how anyone could interpret reg 68(1) as having the effect you refer to, indeed the head of that reg explains that reg 68 in its entirity is about determining the effective date of a change, it does not prescribe the effect of the change. I really do think that this is glaring anomaly which requires urgent attention and is crucial to the routine work we undertake everyday, it is not an esoteric anomaly which could affect a minority of claims.

[b:bf1652e3e6]Answer 1[/b:bf1652e3e6]

We’re (collectively) confused by your reply. Firstly – benefit periods will not exist in law for people aged 60 or over (or who have partners aged 60 or over) from 6th Oct 2003. Therefore where in your reply you indicate that you’re seeking to end a benefit period after 6th Oct 2003, the scenario would just not be tenable because you would be seeking to cease something which did not exist.

What will end HB entitlement after 6th October 2003? Well any of the other entitlement conditions to HB. For example, if the claimant dies, then there would be no entitlement to HB (notwithstanding reg 96). I think you need to consider reg 13 of The Housing Benefit and Council Tax Benefit (State Pension Credit) (Abolition of Benefit Periods) Amendment Regs 2003 (SI 2003/1338) might help here.

I hope this helps
Gary Rodgers
DWP

[b:bf1652e3e6]Question 2[/b:bf1652e3e6]

Gary – I’m pleased that you are confused because I am. I know I used BP and the fact is they no longer exist for Pensioners but I could equally have used something else to describe the period of the award. Unfortunately I don’t know of any official descriptor so I’ll call it an elephant (long lasting and dependable).

My quandry is that under current rules(you will have to assume no PC changes at all):

A) a pensioner might currently be in receipt of HB at £35.00 per week in an LA tenancy with a BP end of 28 December 2003. On 07 Dec 2003 they cease to be a tenant at that address and move, we don’t know where to. We end the BP (reg 67(1)(c)) from 07 Dec 03. On 01 Jan 2004 they apply for benefit again at their new address from 08 Dec 03 and it is paid from that date (reg 72(13) applies).

You might say that reg 65(1) applies and that this is not a renewal claim therefore reg 72(13) does not apply and that if Reg 65(1) were to give effect to a start date of 08 Dec 03 reg 72(15) would have to apply. I don’t think however that such discussions should confuse the issue.

Under the new rules

B) as a result of the changes I accept there is no BP so my customer has open ended entitlement to HB (an elephant). I can’t end the BP because there isn’t one so what do I do with the elephant. I know that I must cease to pay HB because as far as I know this customer has no rental liability from 08 Dec 03 onwards but that isnt the issue. The issue is what happens to the elephant and how does the fact that there is an elephant interact with the provisions in Part X of the HB regs and reg 65. The linking of “periods” of entitlement is crucial here and if you are really saying that pensioners HB will suffer because they will ALWAYS have to make a claim “in time” under reg 65(1) then it needs expressing. I think I accept that reg 29 of 2003/235 mitigates all of this until 6 October 2004, although even my analysis of whether it achieves that is a bit flakey, given that it doesn’t appear to mean automatic backdating to ANY date of potential entitlement.

I don’t think what you have created will be enough for tribunals and Commissioners the fact you have abolished BP’s does not mean that they have been replaced with nothing. The fact that many of the claim regs rely upon the principles of BP’s could mean that they don’t apply to pensioners. The fact that they don’t apply to pensioners places a greater burden upon pensioners, if the effect of our ending of entitlement requires a new claim.

I think those that have raised the question draw the distinction between the benefit period and entitlement and the fact that the current regs allow entitlement to cease without the benefit period ending, for example rent free weeks and that by definition benefit period has to be divorced from entitlement.

It follows that without the ability to end an elephant it will continue, meaning no requirement to reclaim, meaning the whole of part X is redundant, meaning that all pensioner entitlements must be managed using the change of circs rules.

Sorry if this appears to be pedantic but it is really important to sort this out now.

I don’t think the 68(1) answer is enough.

Julian

[b:bf1652e3e6]Answer 2 [/b:bf1652e3e6]

Julian

Thanks for your message. I’m going to have to ask the people with more
experience of the strange world of benefit periods than me to crawl over your queries. I’m afraid I come from an IS/JSA background and just cannot see through the difficulties you are describing. “Elephants” are alive and well in IS and JSA and always have been – I always viewed Benefit Periods as a curious administrative encumbrance laid on the top of HB. Once they are removed, to my simple mind, HB comes into line with the other pachyderms, albeit they cannot roam beyond LA boundaries without a new claim being made (due to primary legislation). Therefore, once the basic conditions of entitlement have ceased, the claim closes – IS and JSA operate quite contentedly, and have been grazing in the sunlit savannahs of the BA and Jobcentre Plus for ages now.

Maggie/Dave. Sorry about this, but in Bernard’s absence, grateful if you
could crawl over this one please. Happy to discuss.

Gary

[b:bf1652e3e6]Question 3[/b:bf1652e3e6]

Gary – thanks for your quick reply. I agree with the “encumbrance” point and in no way do I want the position I described to persist nor would I want there to be both Indian and African elephants to contend with. The forced extinction of elephants would be greatly appreciated, but inspite of their size they do have a habit of creeping up on you from behind. The other problem is (and this might apply to me) that some people won’t (can’t) accept that elephants do not exist, checking every nook and cranny to see if there is one in hiding.

Julian

No reply to the question but as a result of another Question and answer on the DWP question log I sent the following:

[b:bf1652e3e6]Supplementary Question 3[/b:bf1652e3e6]

Gary – I think my original question has been answered in part by Q 337 of the log

Question 337- Changes of address -Ian Hallett, Newham – From the replies in the external log, it appears the DWP view is that local authorities cannot cancel entitlement and invite a new claim when someone moves within the LA area. I’d be grateful if someone could confirm that LAs will not have the power to decide whether entitlement should end when someone moves within their area. I would also be interested to know the legislative basis for distinguishing the effect on entitlement of moving within an authority and moving to a new authority (where entitlement would end)

Answer 337 -Our legal advice on this is as follows: When a pensioner claimant moves to a new premises within the areas of the local authority currently administering his claim the move will, in almost every conceivable case, be a change of circumstances affecting the amount of HB payable (reg 68). An authority will respond by making a supersession in respect of that claimant under reg 7( 2)( a) of the HB & CTB (Decisions and Appeals) Regs 2001. There is no benefit period where these claimants are concerned, and the life of the current
claim will continue, subject to the entitlement rules being satisfied. In fact,
if the authority refused to pay benefit until the claimant submitted a new claim
form that cessation of benefit would be unlawful. This is not the case where a claimant moves to a premises outside of the current authority’s area. In such a case, the claim must come to an end and the claimant must submit a new claim form. Section 134( a) of the Social Security Adminstration Act 1992 states “Housing benefit… shall be funded and administered by the appropriate housing authority or local authority.” Section 134( 1A) goes on to define the appropriate housing authority in rent rebate cases to be the authority to which payments are liable to be made. Section 134( 1B) goes on to define the appropriate local authority in rent allowance cases as “the local authority for the area in which the dwelling is situated.” The legal effect of these provisions is that the statutory
responsibility of the authority ceases where the claimant is either no longer
liable to make payments to that housing authority or, in rent allowance cases,
the dwelling the claimant occupies is no longer situated in that authority’s area.
Effectively, once the claimant moves out of the area, the authority’s legal
responsibility for housing benefit in respect of that claimant’s dwelling
ceases.

and reg 14 of 2003/1338 (although this means I have many more questions to ask). I think I’m happy with “entitlement” ceasing (and therefore the elephant) in cases where the claimant dies by virtue of s130(1)(a) of SSCBA 1992 (1192,c4). But my Questions relate to the other reasons for ending an elephant.

Q1. Local Authority tenant moves address within the LA. In order to avoid Overpayments and in the interests of efficient administration, the Interface between the HB processing system and the Housing Depts Rent System is set up such that when a tenancy ends, HB ends automatically. If a customer moves from LA property A to LA property B, what would the Hb dept need in order to commence paying at LA property B. The LA obviously knows of the move (so the change has been reported ?) would it be sufficient for the Housing Dept to notify the HB dept of all “Pensioner” customers change of addresses, without there being a separate requirement on the pensioner ?

Q2. If the answer above is “no the change has not been reported” and we have to receive something from the Pensioner, would the beneficial change rules apply if the customer reported the increase in rent (if there had been one) and change of address outside 1 month. And if the answer to that is yes, are software suppliers aware that the rent used in the assessment may be different to the rent deemed to be eligible under normal circumstances. OR in such circumstances would entitlement be £0.00 from the tenancy end at address A until the point at which entitlement recommenses by virtue the effective date of change as determined by reg 8 of the D&A regs. OR would this be a revision decision, in which case the time to request the revision would be driven by the decision to end entitlement rather than the actual date upon which the tenancy at B started. And (sorry to keep going on) what are the links with reg 104 should an overpayment have occured.

Q3. If the answer to Q1 is yes could the requirement to report a change of address for pensioners be extinguished in cases where direct payment is made to a landlord (of any description) and that landlord is the landlord of address A and B and provides the evidence of rent in respect of B. AND if the answewr to that Q is yes could the provision be extended irrespective of whether the L/L was the L/L of both A and B.

Q4. What would be the verification implications of any of these arrangements, particularly as in Q1 and Q3 nothing is received from the customer which would confirm/declare occupancy in order to satisfy s130(1)(a) SSCBA 1992.

Sorry

Julian

[b:bf1652e3e6]Holding Answer to the combined Question 3[/b:bf1652e3e6]

I’m on to all these already. Give us a bit more time please – we’ve just been inundated with a number of Parliamentary questions. luckily I wrote to our adjudication people before they arrived.

Gary

1. Ending HB claims without benefit periods.

Discussion

2. I want to start my reply with the primary legislation, which does indeed say that HB claims can be ended.

3. Section 130 of the SSCBA:

“130.—(1) A person is entitled to housing benefit if—

(a) he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home;

(b) there is an appropriate maximum housing benefit in his case; and

(c) either—
(i) he has no income or his income does not exceed the applicable amount; or
(ii) his income exceeds that amount, but only by so much that there is an amount remaining if the deduction for which subsection (3)(b) below provides is made.”

4. So, we seem to have primary powers not to pay HB where there is no rent liability, and where income sufficiently exceeds the applicable amounts.

We also have section 134 of SSCBA:

“134.—(1) No person shall be entitled to an income-related benefit if his capital or a prescribed part of it exceeds the prescribed amount.”

That is, the capital exclusion.

5. So we seem to have three primary powers to end HB claims where:

(a) rent liability ceases;
(b) income exceeds applicable amounts; and
(c) capital exceeds prescribed levels.

All without the need for benefit periods.

6. But what about the LA’s functions under the Admin Act – ie where do their duties end when someone moves? We’ve had legal advice on this already:

“When a pensioner claimant moves to a new premises within the area of the local authority currently administering his claim the move will, in almost every conceivable case, be a change of circumstances affecting the amount of HB payable (reg 68). An authority will respond by making a supersession in respect of that claimant under reg 7(2)(a) of the HB & CTB (Decisions and Appeals) Regs 2001. There is no benefit period where these claimants are concerned, and the life of the current claim will continue, subject to the entitlement rules being satisfied. In fact, if the authority refused to pay benefit until the claimant submitted a new claim form that cessation of benefit would be unlawful.

This is not the case where a claimant moves to a premises outside of the current authority’s area. In such a case, the claim must come to an end and the claimant must submit a new claim form. Section 134(a) of the Social Security Administration Act 1992 states “Housing benefit…shall be funded and administered by the appropriate housing authority or local authority.” Section 134(1A) goes on to define the appropriate housing authority in rent rebate cases to be the authority to which payments are liable to be made. Section 134(1B) goes on to define the appropriate local authority in rent allowance cases as “the local authority for the area in which the dwelling is situated.” The legal effect of these provisions is that the statutory responsibility of the authority ceases where the claimant is either no longer liable to make payments to that housing authority or, in rent allowance cases, the dwelling the claimant occupies is no longer situated in that authority’s area. Effectively, once the claimant moves out of the area, the authority’s legal responsibility for housing benefit in respect of that claimant’s dwelling ceases.”

7. This seems clear to me. I took one of your concerns to be what should the LA do when the claimant tells them they’ve moved out of their current address, but doesn’t tell the LA where they’ve gone?

8. It seems to me that there are two possible courses of action:

(a) cease HB immediately on the basis that rent liability has ceased, and it’s up to the claimant to tell the LA where they’re going; or

(b) suspend the HB claim pending further information from the claimant/or request that further info.

9. The option in 8(a) seems neater, and indeed the very fact that the claimant has moved but not told the LA where to would perhaps give the Decision Maker sufficient cause to stop paying HB. It does open the possibility that the claimant pops in later saying that they’ve moved within the LA’s area, and that rent liability at the new address followed on from the old one. Really, what should have happened is that the move should have been done as a change of circs on the HB claim rather than the “old” HB claim being closed down – all provided of course that the claimant had given the LA enough information to do that.

10. Suspension seems messier, and would seem to be more applicable where someone other than the claimant told the LA that the claimant had moved.

11. If the claimant re-appears within a month and it transpires that he moved within the LA then, regardless of why he didn’t provide this information earlier, the decision to terminate can be revised. This will be the only means by which the entitlement would be continuous. If the re-appearance was later than one month the LA would need to consider special circumstances. If there were none, a new claim would be required. Of course, backdating could be considered but if there were no special circumstances unlikely to be continuous good cause.

Notification requirements

12. You then went on to ask:

(a) for claimants who move from LA property x to LA property y within the same LA, would it be sufficient for the Housing Dept to notify the HB dept of all “Pensioner” customers’ change of addresses, without there being a separate requirement on the pensioner? and

(b) if that answer is “yes”, could the same view be taken where direct payment is made to a private landlord, and the landlord owns both property x and property y and the claimant moves from one property to the other? and

(b) what would be the verification implications of any of these arrangements, particularly if nothing is received from the customer which would confirm/declare occupancy in order to satisfy s130(1)(a) SSCBA 1992?

I appreciate that you asked a series of supplementary questions hanging off the query in para 12(a), but I think that the guts of the questions are those in 12(a), (b) and (c).

13. As a general comment, claimants are required to report changes in their tenancy under regulation 75. This is designed to catch all changes of tenancy – private and public sector. That requirement is there now, therefore the question of whether an LA in effect notifying itself would be sufficient must have raised its head before now, as would the one regarding private landlords. I don’t want to give my own view on this, as colleagues on BFI and HB Security will no doubt have more awareness of these issues, so (as I said before) I’m seeking their views. By the way, regarding your questions on software suppliers’ knowledge, we would have no idea as we do not contract with them.

14. In the meantime, I hope this helps.