DLA and the advantage / dis-advantage rule

Currently, there are 0 users and 1 guest visiting this topic.
Viewing 15 posts - 1 through 15 (of 19 total)
  • Author
    Posts
  • #22982
    NeilC
    Participant

    A customer never tell us she is on DLA (C). Consequently a non-dep deduction is made. Years later we discover that she is receiving it. What date do we put the DLA on from? Can we apply the advan / dis-advan rule?

    Cheers.

    #10442
    Anonymous
    Guest

    In this situation, the “relevant benefit” rule does not apply.

    You have made a series of decisions – probably one or two a year at least – in ignorance of a material fact. It is too late to revise any of those decisions that were made more than a month ago. If the most recent decision is more than a month old, I am afraid the best you can do is make a superseding decision to remove the non-dep deduction from the start of the week in which you found out about the DLA under Reg 8(4).

    If any of the decisions are still less than 13 months old, you could also accept a late application for revision even at this stage.

    #10443
    NeilC
    Participant

    To clarify. The ‘relevant benefit rule’ only applies if we are told within a month of them first being notified. Is this correct?

    #10444
    Anonymous
    Guest

    I think it’s a bit messier than that. The relevant benefit rule applies at any time – there is no limit – but only decisions that had already been made at the time when the relevant benefit was awarded. If the award of the relevant benefit includes arrears, any HB decisions in the arrears period are revised under D&A Reg 4(7B); in addition, the HB decision that is current on the date from which the relevant benefit award takes effect is superseded under Reg 7(2)(i) and 8(14). But once the relevant benefit is up and running and in regular payment, the special revision/supersession rules for relevant benefits don’t apply to any subsequent HB/CTB decisions. Any decisions you have made after the claimant was already getting DLA, unknown to you, cannot be revised under Reg 4(7B).

    #10445
    samc
    Participant

    Reading revision and supersession in isolation would suggest that when relevant benefit is awarded you could do an anytime revision from the date the relevant benefit is awarded up until the first new decision is made. Thereafter supersession also applies from the Monday of the week that notification is supplied.

    Is this correct or not?

    #10446
    Anonymous
    Guest

    Yes, I think that’s exactly right – and Neil’s case shows that there could be a very long gap between the first decision after the relevant benefit is awarded and the week of notification. Any further HB decisions falling in that gap cannot be revised under Reg 4(7B) or superseded under Reg 7(2)(i).

    #10447
    Anonymous
    Guest

    Peter Barker is entirely right if she was getting DLA before her first HB claim, but if the DLA was awarded from any day after the first day of entitlement to HB/CTB all your decisons can be superseded and the effective date is the date of the award of DLA

    #10448
    Anonymous
    Guest

    I cannot read Reg 7(2)(i) as allowing supersession of decisions that had not yet been made at the time when the relevant benefit is first awarded. Apart from the logical problem of something being superseded before it has happened (I’m my own grandpa?), I don’t think the legislation allows it. Both para 4 of Sched 7 to the 2000 Act and Reg 7 are headed “decisions superseding earlier decisions” and that text is repeated in the preamble at Reg 7(1). A superseding decision under Reg 7(2)(i), and a revision under Reg 4(7B) or (7C) for that matter, can only apply to decisions that had already been made at the time when the relevant benefit was awarded.

    When I look at D&A Reg 8(14), I am even more convinced this is correct: the effective date of the superseding decision made under Reg 7(2)(i) is the same as the date of the relevant benefit entitlement. If Stainsby is right, any decisions made after the relevant benefit was awarded (but before the claimant told the Council about it) should all be superseded with effect from that same earlier date. I cannot see how that makes sense: a superseding decision surely cannot take effect from a date earlier than the decision that is being superseded. Again, it comes back to the purpose of supersession as set out in the primary legislation – a superseding decision must replace an earlier one.

    I would still argue that any HB/CTB decision made after the claimant started receiving the relevant benefit is made in ignorance of that material fact, and it is subject to the restrictions that apply to advantageous revisions.

    #10449
    NeilC
    Participant

    Thanks for the responses.

    #10450
    Anonymous
    Guest

    I have changed my mind on this somewhat because a decision can be revised or further revised at any time under Reg 4(7B) where:

    “(a) the relevant authority makes an original decision awarding housing benefit or council tax benefit to a claimant; and
    (b) entitlement to a relevant benefit within the meaning of section 8(3) of the 1998 Act or to an increase in the rate of that relevant benefit is awarded to the claimant or a member of his family for a period which includes the date on which the original decision took effect, the relevant authority may revise or further revise that original decision at any time.”

    The Regulation does not require that entitilement to …..the relevant benefit is SUBSEQUENTLY (my empahsis) awarded, only that it is awarded for a period that includes the date the HB/CTB decison came into effect.

    I would argue that superseding decisions can also be revised or futher revised at any time under Reg 4(7B) because “original decision in the this sense includes a superseding decision by virtue of the definition under Reg 4(1) and Reg 1 referring back to para 1(2) of Sch 7 to the Act.

    The only time a decision cannot be revised under Regulation 4(7B) would be if the original decision was to refuse benefit. In that case the usual rules would apply

    #10451
    Anonymous
    Guest

    I think I see what you mean Stainsby. Reg 4(7B) was clearly drafted to cater for the situation where the events in subpara (a) are followed by the events in subpara (b) … because subpara (b) retrospectively pulls the rug from under the original decision.

    But you are arguing that the wording doesn’t rule out the reverse situation: a relevant benefit is awarded, and subsequent to that an “original HB/CTBdecision” is made (whether it is a new claim or a superseding decision) …. even though the HB/CTB decision has been made in ignorance of the fact that (say) DLA is in payment, you can still see a way of applying Reg 4(7B) because the wording is not tight enough to restrict its application to cases where the relevant benefit award happens after the HB/CTB decision? Have I got it?

    Hmm, I think I understand the point but I am not sure I’d agree with it. I think the use of the word “original” is strong enough to restrict para (7B) to cases where the decision to be revised existed originally, i.e. before the relevant benefit was awarded, and the backdated element of the relevcant benefit now makes that original decision wrong. If you take the award of the relevant benefit as the event that triggers Reg 4(7B), then “original” indicates a pre-existing decision on the trigger date.

    #10452
    Anonymous
    Guest

    You got it, as for the word “original”, I think it simply reflects the structure of Reg 4.

    It is headed:

    “4.—(1) Subject to the provisions in this regulation, a relevant decision (“the original decision”) may be revised or further revised by the relevant authority which made the decision where–”

    “Original decision ” simply means a relevant decision as defined by the Act, so any relevant decision can be revised or further revised at any time under Reg4(7B), provided that decision was to award HB/CTB, (not refuse to award HB/CTB) and provided a relevant benefit, or increase in that benefit is awarded for any period that includes the date the HB/CTB decision took effect

    #10453
    Cath Burd
    Participant

    I have e-mailed the DWP in Leeds on this subject and the following reply was sent to me,

    “2 You ask for advice on how Decisions and Appeals regulations 4(7B) and 7(2)(i) operate when a claimant is given a backdated award of DLA. You point-out that over the course of a Housing Benefit (HB) claim, a claimant’s entitlement will be decided by a series of different awarding decisions. Your understanding is that regulation 4(7B) cannot apply to HB decisions which are effective from a date after the date on which the DLA arrears were actually paid.

    3 The example you give concerns a claimant who was awarded DLA in November 2005. Arrears were backdated to August 2005. Your authority was ignorant of this when the HB award was up-rated in April 2006. The claimant finally notified you of the DLA award in July 2006. You say that regulation 7(2)(i) allows you to supersede the award that was in operation in August 2005 with effect from the first day of the DLA award. Additionally, regulation 4(7B) allows you to revise any decisions that took effect between August and November 2005. However, you do not see that the regulations enable you to revise any decision which was made after November 2005, which was when the decision awarding DLA was made. You are worried in particular about the decision which up-rated benefit from April 2006, which was made in ignorance of the fact that the claimant had an award of DLA. The effect of the regulations would seem to produce a gap in entitlement to the increase from April 2006 to July 2006, when the claimant actually reported the change. You ask whether this is the Department’s policy.

    4 Firstly, no, this is not the Department’s policy. The regulations are intended to create continuous entitlement to the additional benefit all the way back to the first day of entitlement to the “relevant benefit”. The actual example you give doesn’t in fact create a problem because up-rating is a process which doesn’t involve decision-making, and the decision-making and appeals legislation simply doesn’t apply to it. You therefore don’t need to worry about revising or superseding any decision made in April 2006 as there doesn’t appear to have been one.

    5 However, even if a decision had been made in April 2006 (or any time after November 2005), there wouldn’t have been a problem. The intention of the legislation is that any HB awarding decision may be revised if the claimant has been awarded a qualifying benefit from a date on or before that decision took effect.

    6 Regulation 4(7B)(b) says that the relevant authority may revise a decision if a relevant benefit is awarded “for a period which includes the date on which the original decision took effect”. In your example, the DLA award started in August 2005 and went on beyond July 2006 (you don’t say whether it was for a fixed or indefinite period). The period of the DLA award therefore included April 2006, so that any decision made in April could be revised under regulation 4(7B).

    7 You should not interpret regulation 4(7B) to mean that the period of the arrears of DLA needs to include the effective date of the HB decision to be revised – the decision awarding DLA doesn’t need to have involved arrears at all. For example, a claimant makes an advance claim for DLA and on 07/11/05 they are given an indefinite award of the middle rate care component with effect from 11/01/06. Clearly, the claimant doesn’t get any arrears of DLA. They don’t tell you about the award until 10/11/06. Several superseding HB decisions have been made between 11/01/06 and 10/11/06. The HB decision in operation at 11/01/06 can be superseded under regulation 7(2)(i). All the decisions made subsequently can be revised under Decisions and Appeals regulation 4(7B) because in each case the period of the DLA award (11/01/06 for an indefinite period) includes the date from which the HB decision took effect.”

    Do you have any comments?

    #10454
    Kevin D
    Participant

    I’ll pick up on one point only….

    The DWP stated (point 4):

    [quote:4f5e1d99ef]….”up-rating is a process which doesn’t involve decision-making…”[/quote:4f5e1d99ef]

    Utterly unbelievable. Incredible. 🙄 Wrong, wrong and, er, wrong.

    Question: Why do LAs notify clmts of the annual uprating (with appeal rights et al)?
    Answer: Because a decision has occurred.

    Precisely which planet does this kind of “advice” eminate from? I’d quite like to know. No, really…. just so that I can give it a wide berth.

    For what it’s worth, there is at least one CD where it is plain that uprating is a decision – I’ll try and locate it.

    Regards

    #10455
    Anonymous
    Guest

    At the risk of seeming obsessed to a degree that is not cool, I would like to disagree with DWP’s view about this. For a number of reasons.

    [b:93591c9ec2]Policy intention[/b:93591c9ec2]
    Circular A35/2003 explains why the D&A Regs were amended. It gives examples in which decisions are revised or superseded following the payment of relevant benefit arrears. The whole point of these amendments was that the D&A Regs did not previously cater for the retrospective effect of relevant benefits paid in arrears. The D&A Regs already did cater, and continue to cater perfectly well for cases where the Council is ignorant of the fact that a claimant already receives a relevant benefit.

    The explanatory note to the amending Regs [url]http://www.opsi.gov.uk/si/si2003/20032275.htm[/url] says that the D&A Regs are being amended to deal with HB and CTB decisions [i:93591c9ec2]”which are affected by a change in a person’s entitlement to another benefit”[/i:93591c9ec2] – I suggest this reveals that the policy intention was to cater for HB/CTB decisions that had already been made at the time of the change in entitlement to other benefits. There was no other reason to tinker.

    [b:93591c9ec2]Uprating and decision-making[/b:93591c9ec2]
    I have three comments on this. First, as Kevin says, if there is no decision at the time of the annual uprating, then you don’t have to notify the claimant and they don’t have the right to appeal if you get it wrong. I don’t think that is right.

    Second, in HB and CTB the annual uprating usually coincides with another change that needs to be the subject of a decision: increse in income that has also been uprated, change in Council Tax, change in council rent, change in RSL rent in many cases. Most claimants tend to find that there is a new HB and/or CTB decision at the time of the uprating for those reasons as well.

    Third, analysis of the Regs reveals that a superseding decision is required to give effect to the uprating. HB Reg 79 provides for the effective date of various changes of circumstance. One of these is the annual uprating – see Reg 79(3)(a). But Reg 79 itself does not make provision for benefit to be changed – that has to be done under D&A Reg 7(2)(a) and 8(2), which imports Reg 79 into the decision making framework. For any change listed in principal Reg 79 to have effect, there needs to be a superseding decisioon under D&A Regs 7(2)(a) and 8(3). Amendment of the principal Regs under s150 of the Administration Act is no exception – that’s how the Regs are structured.

    [b:93591c9ec2]Whether it is possible to revise decisions that have not been made yet when a relevant benefit is awarded[/b:93591c9ec2]
    I just don’t read this the same way as DWP, although I understand their point (it’s the same point Stainsby made above). The natural way to read Reg 4(7B), which is formulated in the present tense, is to say that the events set out in subparas (a) and (b) happen in that order. First, you make a decision, then the award of a relevant benefit pulls the rug from under that decision, so you revise it.

    There is, and always has been, a very clear and obvious ground for revision in a case where the claimant is already receiving a relevant benefit at the time when you make an HB decision. The decision is made in ignorance of a material fact. It can be revised, but subject to the proviso that the missing facts must come to light within a month if revision is to be to the claimant’s advantage. The idea is that claimants read their decision letters and let you know if there is anything wrong. If they don’t do that, they run the risk of being overpaid or missing out on extra benefit. I just don’t see the logic of excluding an existing award of a relevant benefit from that general principle. It’s not what Reg 4(7B) is there for.

Viewing 15 posts - 1 through 15 (of 19 total)
  • You must be logged in to reply to this topic.