Date of claim/HB start date

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  • #38523
    laurabrown
    Participant

    I was wondering if anyone can clear up an debate we are having here in the office!

    existing passported claimant
    tenancy starts Monday 4.7.11;
    make their claim for HB on Tuesday 5.7.11;
    move in on Monday 11.7.11;
    We can only treat the date of claim as the date they move in i.e. 11.7.11; because all three events are not occurring in the same benefit week, we can only make it effective from the Monday following i.e.18.7.11.

    The other stance is we should pay from 11.07.11.

    Can anyone please clarify?

    #108661
    Kevin D
    Participant

    Assuming this is not a potential “furniture case”, the correct start date is 18th July 2011.

    See R(H ) 9/07 & R(H ) 4/04 – the latter is SoS DWP v Robinson & City of Sunderland [2004] EWCA Civ 342.

    #108664
    Andy Thurman
    Keymaster

    Surely in this case, as the claim was received (and, by default made) on 5.7, the award can start from 11.7 – the Monday after the claim is made.

    #108665
    Andreas
    Participant

    But doesn’t the date of occupancy become the date of claim for the claim received on the 5th?

    #108678
    Kevin D
    Participant

    [quote=Andreas]But doesn’t the date of occupancy become the date of claim for the claim received on the 5th?[/quote]

    In effect, yes. That was, in essence, the point addressed in the legal authorities provided. In short, and slightly oversimplified, the clmt doesn’t have a valid claim until the occupancy condition is satisfied. In this case it’s the 11th and this takes it out of the “week-1” remit.

    There have been many debates on hbinfo about this situation – just search for “Robinson”. Some posters openly argued that “Robinson” was wrongly decided whilst others, including myself, thought it was correctly decided. However, R(H ) 9/07 has since been decided to the same effect (albeit by pretty tortuous analysis) and I can’t see any wriggle room in the absence of contradictory authority at an equivalent level of Robinson (i.e. Court of Appeal) or higher.

    #108694
    Andy Thurman
    Keymaster

    [quote=Kevin D]Some posters openly argued that “Robinson” was wrongly decided[/quote]

    I was one of those!

    This example shows the ridiculous nature of these interpretations.

    “sorry sir, you can’t have benefit until 18th April because we can only pay from the Monday after you claimed”
    “But I claimed on the 5th”
    “No you didn’t”
    “Yes – check your records. I came in and made the claim on 5th”
    “Ah, you might have filled in a form but you didn’t make a claim.”

    #108702
    Kevin D
    Participant

    For what it’s worth Andy, I happen to agree that the legislation relating to claim dates, start dates and calculation of weekly amounts is in such a mess that it’s become a coin flip in some situations as to a) what the legislation actually says and/or means and, less importantly (in law), b) what the DWP/government of the day intended.

    As I’ve said before, it wouldn’t be very hard to make those particular elements of the legislation much clearer (whichever side of the political fence it falls on) – I’ve already had a stab at rewriting regs 83 and 76. I think even that rewrite can be bettered (easily).

    When I did the “rewrite”, I tried to keep it in keeping with government direction (irrespective of whether I held a different view). The one significant thing that unquestionable strayed beyond that parameter was something I advocated some time ago: abolish the “good cause” version of backdating and make the retro 3-month award available for ALL ages. Whether this should be “auto” or dependant upon a positive request by the clmt would still mean far fewer appeals – no “good cause” judgement call needed – and, in turn, far fewer Tribunals. Overall, I’d guess (because I don’t have figures), it would be cost-neutral.

    It may even be open to argument that the existence of a 3-month retro award might mean the “intention” provision is not needed; the logic being that if you claim “today”, you can still get upto, and beyond, that one month limit. In order to get around the gap between “requesting” a claim form and actually making a claim, THAT aspect can also be changed. Simply allow the making of a claim to be by “any means”, but legislate to make it defective until rectified by way of a claim form, or such written form the relevant authority accepts as being sufficient etc.

    In my view, all of the above would make it MUCH clearer for clmts, WROs, administrators and Tribunals alike. Overall, relatively little difference to front line expenditure but potentially significant admin savings all round – especially the reduction in appeals that are VERY resource hungry.

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