Breaking the claim

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  • #34130
    txsim
    Participant

    Just posing this question again as previous query has had no repsonse for a few weeks – we are proposing to advise people of LHA and expect them to start breaking their claims – this could happen in a number of ways, although strictly not allowable in the regs. Do other authorities have a stance on this yet?

    #95493
    Anonymous
    Guest

    Previous thread should give an indication of what is going on across the UK:

    [quote:77a13eb449]POLL: Is your authority permitting voluntary claim closures to allow for a new claim for LHA?

    No…………………………………. 44% [ 39 ]
    Yes – Subject to one week gap 45% [ 40 ]
    Yes – No gap……………………. 9% [ 8 ]

    Total Votes : 87 [/quote:77a13eb449]

    #49346
    Anonymous
    Guest

    Two most recent responses from DWP’s LHA Team on the subject make interesting reading.

    Response 1

    ‘If the customer wishes to forgo benefit for a month and the LA are willing to accept no details for that period on a new claim, they could end and restart their claim (Social Security Administration Act 1992, part 1, para 1)’

    Response 2

    ‘we can readily conceive of the possibility that a claimant may present their circumstances in such a way that the local authority makes a superseding decision that they are no longer entitled to benefit.We can also conceive of the possibility that the claimant then makes a new claim a week or so later and be eligible for the LHA. Our view of those circumstances is that, so long as the claimant hadn’t failed to disclose or misrepresented a material fact, then they should become eligible for benefit under the rules prevailing at the time.If this is to their advantage then so be it’

    So, DWP are saying in each response that a voluntary break in claim is ok but one says one month while the other says a week or so.My own view, and if you read my postings on the subject in previous threads you will see I have never deviated from it, is that absolutely nothing can prevent a voluntary closure of a fully assessed claim.Why some learned contributors seem hellbent on refusing to allow such breaks, and putting forward regulations supposedly which justify such a stance which do nothing of the sort, is quite beyond me.In my council, where income maximisation for low earners and those out of work is king, a manager taking such a negative approach would not be around for too long.Controversial I know but it needs to be said.Again in my opinion, I despair when I read some (many?) posts where refusing the claimant the benefit of any doubt and always looking for reasons not to award, reject reported changes and/or refuse challenges to determinations of overpayments etc when it should be the other way about.

    #95494
    Julian Hobson
    Participant

    Have you looked at what the DWP say is justification for the stance they take ? It just doesn’t hold up OR is out of context.

    [i:6d785b2c06]I’m sure it says somewhere in the regs probably at s134(2) of the SSAA 1992 that a claimant can have as much benefit as they want as long as they ask for it.[/i:6d785b2c06]

    It is quite easy to write fiction, just because I’ve written it doesn’t make it such. What makes it fiction is that it has no founding in fact (law), just because DWP say it, doesn’t make it right either.

    Whatever advice you receive you must check it out for validity and make a decision, if you are happy you have done that, and are therefore happy with the advice then thats great and we can all move on.

    Your suggestion that I have put forward an argument that doesn’t stand up

    [i:6d785b2c06]”putting forward regulations supposedly which justify such a stance which do nothing of the sort” [/i:6d785b2c06]

    is also a fiction, nobody supporting the view of voluntary claim closures or couples changing claimant , has put up ANY argument as to how that might happen.

    Finally I think you must also acceopt that all of those that you refer to as taking a negative aproach support the view that what you want to happen should happen and that LHA requires a big bang aproach OR the regs need changing to allow customers to migrate at will.

    I am not negative in any way, far from it.

    #95495
    Accura
    Participant

    This is a very interesting debate and I’m sure one which will die a death in the coming months as savvy landlords simply advise that there was no rent liability for the previous week and lo and behold – new claim under LHA.

    I fully agree with the stance on what the regs say and there is no basis for allowing it, but we need to get real on this issue – who in their right mind would appeal against a decision to make them better off, what defence would an auditor have in questioning an LA for improving lives, reducing poverty and more closer to home – reducing the cost of administering each claim by getting as many onto LHA as soon as possible. Yes we need to act within the realms of the law, but we also know the law can be an a** sometimes. What are the new KLOES focussing on? – building the service around the customer.

    There are numerous examples of commissioners / tribunal decisions that “steer away from our interpretation of the law” – and I just can’t think of a circumstance where an LA would be in front of them defending their position to pay more benefit to a customer.

    This issue is where the managers and policy officers will have a stand off -but we need to ask ourselves what is in the best interests of the customer? what will deliver the greatest efficiency savings for the LA? and what is the DWP’s long term plans? 99% of HB cases will be under LHA via big bang or otherwise by 2011 so lets stop beating around the bush and get there sooner and cheaper! 😀

    #49349
    jmembery
    Participant

    The problem is that I do not think an LA can choose when to follow the law or not. If the LA honestly does not believe there is a provision within the law for a claimant to “withdraw” a claim in payment, then it should not allow a claimant to do it, even if it would benefit the claimant and be an all round nice thing to do.

    In my case, I believe there is enough in CJSA/3979/1999 to give a strong lead in this argument. OK, so the regulations are different, but, in my view anyway, para 24 gives enough of a general guidance on the free choice of claimants to convince me there is a provision in law for claims to be withdrawn. Therefore we will be allowing claimants to do this.

    24. I accept that the nature of the original claim sets the nature of the award, as I said in decision R(IS) 8/95. If the original claim is for an indefinite period, so that the award is for an indefinite period, I do not think that the claim can later be converted into one for a definite period. The original claim cannot be unmade or amended. If the running of the award was to be stopped it had, by virtue of section 60(1) of the Social Security Administration Act 1992, to be by the operation of the provisions on the review of decisions (although the result may not be the same under the new regime of the Social Security Act 1998 in cases of relevant changes of circumstances: see CI/1132/2000). However, it does not necessarily follow from that that a claim cannot be withdrawn for a prospective period even though there is a current indefinite award. In a sense there has already been an adjudication on that period, through the making of the indefinite award, but only in a fairly technical sense. If a claimant unequivocally says that he wishes his claim to stop at the current date or that he wishes to withdraw his claim for the future, why should that not be given effect? Some regard should be had for the autonomy of claimants. If a claimant freely chooses to renounce a claim for the future (I come back to freedom of choice below), does that not remove the basis for the continuance of the award of benefit? I conclude that even where there is a current award of benefit, a claimant may withdraw a claim on a prospective basis.

    #95496
    Julian Hobson
    Participant

    Notwithstanding my earlier suggestion that the law has changed on this issue since the commissioners decision, what about para 26?

    [i:074e05ea13]26. In approaching that last question, the first task would be to construe the words which are said to constitute a withdrawal of a claim. There may be circumstances in which the words used do not, properly construed, constitute a withdrawal or an expression of intention to bring a claim to an end. However, in the present case, the words used were unequivocal. It must therefore be asked whether there is any factor which deprives what on its face is a withdrawal of the claim of its apparent effect. Such a conclusion could not be reached lightly. The sort of factors which I have in mind would include the inducement of the withdrawal of the claim by fraud, misrepresentation of fact or law, or duress. I have not had any submissions on this point and it would be wrong for me to attempt to lay down any precise or exhaustive rules. The factors mentioned above are only examples and other factors may be relevant in other circumstances (eg most obviously in cases where claimants are vulnerable for some reason or not fully capable of dealing with their affairs). [b:074e05ea13]The essence, in my judgment, is that an ostensible withdrawal of a claim should not be given effect where it would be wrong for it to be treated as a genuine expression of the claimant’s intention at the time. [/b:074e05ea13]Nothing which I say below should be taken as detracting from that central principle or from the need to consider each case on its own circumstances[/i:074e05ea13]

    The bold emphasis is mine. I read this as suggesting that if you know it is not a genuine withdrawal but is simply a device by which entitlement under LHA might be secured, then you might not give it any effect , even if you accept that the customer has a right otherwise to effect a withdrawal.

    #95497
    jmembery
    Participant

    Hi Julian,
    I read this as meaning “is this really what the claimant wants”. I.E it is not the result of fruad, mirepresentation of fact or law, claimant unable to manage own affairs etc.

    In the sort of cases we are taliking about it is certainly what the claimant wants, as they will eventually derive a benefit from it.

    #95498
    Accura
    Participant

    response from LHAAdviceline;

    Thanks for your email. We have received quite a number of inquiries on this subject and the guidance provided is as under, although I must say we have not yet seen any specific live examples. Nevertheless, I have flagged your concern, and [b:58d1d657ac]I will ensure that our team puts this matter for discussion at the next meeting and the possibility of issuing some official guidance in our regular Housing Benefit Direct or a bulletin[/b:58d1d657ac].

    The only way for a customer to move onto the LHA scheme is where:

    the LA receives a new claim

    where the LA receives relevant information regarding a new claim i.e. a CMS statement

    Where the LA receives a notification of an existing customer changing address

    Where the LA receives a re-application where there is a break in entitlement of one week or more.

    There is no discretion on the part of the authority in this are and you could not move customers onto LHA unless they fulfil one of the above.

    A claimant cannot withdraw a claim that is in payment, they have no right to do this. A claim can be closed for a valid reason that would enable termination, such as going to work.

    If a customer said they didn’t want benefit anymore we should ask for the reason why and assess the case accordingly. If the customer supplies no details after a month we can make a negative assumption that they had income greater than entitlement and close. If the customer then reclaims after the month they would need to supply details for the month in question, which should trigger a review of the decision made.

    I hope that this will be helpful, but if you get a case with specific circumstances, we will be ,ore than happy to seek legal guidance on the matter.

    Regards

    LHAadviceline

    #95499
    Ozzies Mate
    Participant

    hasn’t that changed from a previous response they gave to someone else?

    #95500
    Anonymous
    Guest

    [quote:d8bbb1e9fe]The only way for a customer to move onto the LHA scheme is where:

    the LA receives a new claim…
    [/quote:d8bbb1e9fe]
    So all an existing claimant needs to do to transfer to the LHA scheme is fill in a new claim form? That’s nice and easy… don’t even need to worry about the existing claim! 😉

    #95501
    Julian Hobson
    Participant

    Certainly does appear to be a change to the advice, what happened to the “couple” scenario.

    [quote:cc0ed64a54]So all an existing claimant needs to do to transfer to the LHA scheme is fill in a new claim form? That’s nice and easy… don’t even need to worry about the existing claim! [/quote:cc0ed64a54]

    I know it was said a bit tongue in cheek but some people do believe that a customer filling in a new claim form means they have made a new claim. We know that is not the case and that a new claim does not necessarily equate with having filled a form in eg where benefit already in payment.

    #95502
    gary_t
    Participant

    Regulation 87 says nothing about the circumstances under which a claimant may withdraw his/her claim/award following a decision being made on it; it only describes the position with regard to withdrawing a claim prior to a decision being made.

    Regulation 88 is about the duty of a person to notify the authority of a change in circumstances which might reasonably affect entitlement. One such change of circumstances could be that the claimant has decided that he or she no-longer wishes to exercise his/her right to receive Housing Benefit. If a claimant notifies the authority of such a change, on what basis should the authority ignore it?

    This argument is really about freedom of choice and Human Rights. As Commissioner Mesher says in CJSA/3979/1999 “Some regard should be had for the autonomy of claimants.” It is a JSA case, but the principle that a claimant may revoke his/her right to receive benefit entitlement still applies. To quote the Commissioner again “a claimant may withdraw a claim on a prospective basis.”

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