Terms & Conditions

[Stalbansbenefits]

Claimant comes off Income Support in 2003 as a result of Maintenance Payments. Re-applies at that time and states her Maintenance is £420 per month. Provides evidence in the form of credits to her bank account. Claim is assessed on that basis.

In January 2006 she happens to provide a letter from the CSA which confirms her actual payments are about £365 per month, but she is owed arrears going back years, so that is why she is paid £420.

Our thoughts are that as arrears of income should be taken into account over the period over which they recover (Reg 79 right?), so we should not be taking the arrears into account in her current assessment, and should just include maintenance of £365 per month.

With me so far?!?

The difficulty we have is whether we can go back and re-assess the claim from 2003 (which the claimant obviously wants).

I have difficulty in accepting it is official error and therefore subject to the anytime revision rules. Claimant declared £420, provided evidence it was £420. Ok, so we did not contact the CSA to confirm if this included arrears, but would that consitute an official error? Case law on recoverability would suggest not.

If it is not an official error, then we can’t even go back 13 months, as claimant has not notified us within 13 months of the actual ‘change’.

Any thoughts?

(As an aside, does it seem harsh that when looking at late notification we cannot take into account ignorance of the law? An example might be if a claimant’s non-dep went onto sick leave, but still got fulll pay. Claimant may not think to tell us (because earnings are the same), but we should actually be making the lowest deduction. If we eventually do find out, why should it be we can’t take into account customer would not be aware of definition of remunerative work?)

[Anonymous]

I can see a mixture of good news and bad news in this one.

The good news is that I don’t think the advantageous change rule applies: the change from IS to maintenance was at best neutral and from the sound of it disadvantageous because her income exceeded the applicable amount. So a superseding decision was made at the right time and there is no need to treat the change as happening on a later date under D&A Reg 8(3).

However, that decision was flawed: it contained a mistake about a material fact (wrong amount), or ignorance of a fact (didn’t know it included arrears) – either way it was wrong. And the bad news us that it is now too late to revise that decision in the claimant’s favour because the factual irregularity didn’t come to light withoin a month. It is also too late to supersede that decision under Reg 8(4), because the period over which it was in force has long since gone and the effective date under Reg 8(4) wouldn’t have any effect.

You will presumably have made a few later decisions between 2003 and 2006, all based on the same factual irregularity. If any of these were made within the 13 months leading up to January 2006 (the April 2005 uprating must be, for example) they could be revised with a bit of good will:

– treat the provision of the CSA letter as an out of time revision application (OK, maybe that’s stretching a point, but if you did that you could still even at this stage invite the claimant to elaborate on the reasons for failing to apply for revision within a month of the original decision/s)
– accept it out of time and revise

That would allow you to go back at least some of the way.

If you are not persuaded by that, your only option is to supersede the decision that was currently in force in January 2006 from the start of the week in which the information was provided – D&A Reg 8(4).

If Stainsby was here, he would probably be thinking along the lines of examining every decision letter issued since 2003 and scrutinising it for the tiniest deviation from Schedule 6 as was – if something showed up you could say the decision has still to be properly made and go on to make a new first instance decision now based on the right income. That’s probably a bit desperate though.

[Mikeb2]

Question.([i:5be26bc1c5]Maybe a stupid question[/i:5be26bc1c5]). 😳

What is the difference between the fact that part of the CSA payment is arrears and part ongoing maintenance?

Would you make the same approach if Tax Credits had been underpaid and they increased as a result?(ie part ongoing tax credits part [i:5be26bc1c5]back [/i:5be26bc1c5]payment). ❓

[Stalbansbenefits]

Hmm – thinking about it, you are right. It is not really a beneficial change issue, rather a revision / supersession of a decision previously made.

Although I am swayed by your idea of an out of time revision of the April 2005 decision, I still struggle to see how the Regulations would allow the late request. My understanding is that we cannot take into account that the person was unaware or misunderstood the law relating to his case, and to me that is the only grounds she can really request a late notification. I agree it seems unfair, but I can’t see a way around it.

(Mike – Reg 79 – [i:20f1560253]Without prejudice to paragraph (6), where the change of circumstances is the payment of income, or arrears of income, in respect of a past period, the change of circumstances shall take effect from the first day on which such income, had it been timeously paid in that period at intervals appropriate to that income, would have fallen to be taken into account for the purposes of these Regulations.[/i:20f1560253] – I think arrears of tax credits are dealt with by a seperate Reg. )

[Kevin D]

Mike,

With regard to the issue of back payments of income, St Albans is correct.

The general rule is that income MUST be taken into account for the period it is, or was, in respect of (such as maintenance).

However, there is specific legislation that states back payments of Tax Credits are treated differently (i.e. an exception to the general rule).

The “general rule” is supported by a couple of CDs, including CH/2349/2002 (para 11); CH/0325/2003 (para 3); CH/1561/2005 (para 22).

In CH/1561/2005, WFTC was at issue – the general rule applied to WFTC. It was only the advent of Tax Credits that the exception (eventually) came into being.

Regards

[Mikeb2]

😀
Thank for the tips chaps.

You are all fonts of knowledge. 😉

[Stalbansbenefits]

If that’s the case, why am I still stuck on the question of whether the claimant would be able to demonstrate grounds for a late revision, considering we cannot take ignorance of the regs into account… 🙁

[Anonymous]

It seems there are three separate matters to consider in a late revision: Reg 5(4).

They are, in the wrong order because I want to leave (a) until last:

(b) the application has merit – it clearly does, I think we have established that the wrong amount of income has been used
(c) special circumstances apply – this is where you can bend a little as exigencies dictate

and finally (a): it is reasonable to grant the application. The Reg says that you cannot take into account her ignorance of the law. Fine, don’t.

In other words, it’s not that her application must fail for ignorance of the law, it just means she cannot rely on her ignorance of the law as the basis for her application – it needs to be reasonable to grant the application for some other reason. I’m sure you can think of something.[/url]

[Author]

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