Gaps in claim

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  • #34044
    junderwo
    Participant

    COMMON SCENARIO – Claim being paid as a pre LHA case and we get to April 2008

    1. ETD received stating IS/JSA has ceased, claim suspended and fresh claim form issued.
    2. IS/JSA reawarded and claim form returned but without details of income/capital for the gap.
    3. Claim recommenced as LHA case leaving a 2 week gap in entitlement.
    4. 1 month after the the suspension the claimant is notified his claim has been cancelled for the 2 week gap.
    5. 3 weeks later the claimant supplies details of income/capital for the gap, asks the Council to reconsider its decision to cancel for the gap.
    6. Decision reconsidered and HB awarded for the gap.

    At the time the claim form was received it was a claim on which a rent allowance may be awarded, where the date of claim falls on or after 7 April 2008 [Reg 13C(2)(a)]. Does the fact you now have a continuous claim now negate this and the whole claim is non LHA? This would cause us overpayments because our LHAs are higher than our Local Reference Rents.

    I would like to interpret the legislation to mean the case is LHA from when HB was reawarded. Would anyone support this interpretation or consider it absolutely incorrect?

    Your opinions are very welcome.

    #95055
    pbirks
    Participant

    my (simplistic 😕 ) understanding of it is that if a claim is backdated ( or subsequently paid as continuous ) then it should still be treated as a ro claim rather than a LHA claim – only becomes a lha claim if/when there is a break in entitlement of 1 wk + (or clmt moves house etc) – so if theres a break in entitlement that is subsequently paid, that means its not a new claim – and should stillbe treated under ro decision rules rather than LHA.

    #95056
    Anonymous
    Guest

    A claim will be subject to LHA Regulations if it is in respect of a rent allowance claim where the date of claim is on or after 7 April 2008. (Regulation 13C (2)(a)).

    The only thing that is of relevance is whether or not a[b:90743a979b] new[/b:90743a979b] claim has been made. There is no requirement for a gap in entitlement, and a new claim that susbsequently awards entitlement from the date following the expiry of a previous award is still a new claim.

    #95057
    Michelle Howley
    Participant

    But this isn’t a new claim if the information is provided for the gap period and the customer is entitled to benefit. The claim is a change of circs to the in work period, then a change of circs to the I.S. period. As this is not a new claim this would not go onto LHA (in my opinion)

    #95058
    Anonymous
    Guest

    I very much subscribe to Richard S’s view.Where in the regulations does it prescribe that a claimant cannot withdraw their claim or ask for an existing award to be discontinued, whether there has been a change in circumstances or not ? And where in the regulations does it prescribe a linking period whereby if a new claim follows on immediately from a previous period of entitlement then it becomes part of the previous award.It doesn’t in either situation as far as I can see ( please anyone feel free to correct me if I am wrong)
    I think it is perfectly acceptable, and dare I say it a duty, for LA Welfare Rights, voluntary advice agencies and dare I say it HB officers to advise those, post-April, who would have a higher LHA than an LRR or CRR or Contractual Rent to consider withdrawing the existing claim and submit a new claim a few days later which would then come under LHA.
    LA Benefit staff are there to apply the legislative provisions as is, not make up rules which aren’t there.Whether they personally think it is an abuse or not has absolutely no legal basis.

    #95059
    junderwo
    Participant

    I posed these questions to the DWP:

    The Council are notified that a claimant’s IS ceased on 2 May 2008.
    Housing benefit is suspended and a new claim invited. This is not
    returned within 1 calendar month so the housing benefit is cancelled
    from 5 May 2008. The claimant goes back onto IS on 10 June 2008 and
    reclaims housing benefit which is paid as an LHA case from 16 June 2008.

    SCENARIO 1

    The claimant asks the Council to reconsider its decision that they are
    not entitled to housing benefit from 5 May 2008 to 16 June 2008 and
    supplies details of the low earnings they received for this period. The
    Council reconsiders in favour of the claimant and housing benefit is
    awarded making the claim continuous.

    In this scenario we have had a claim on which a rent allowance may be
    awarded, where the date of claim falls after 7 April 2008 [reg. 13C(2)]
    – the claim of 10 June 2008. Therefore the claim should be assessed as
    an LHA case from 16 June 2008. Does the fact the Council received
    subsequent information that makes the claim continuous negate this fact
    and the claim reverts to a pre LHA case?

    SCENARIO 2

    Say this claimant did not ask for a reconsideration of the Council’s
    decision that they are not entitled to housing benefit from 5 May 2008
    to 16 June 2008. Nevertheless, when calculating the overpayment for this
    period underlying entitlement is awarded for the entire period. Could
    you confirm that, as underlying entitlement is just part of calculating
    an overpayment and is not an award of housing benefit, this case would
    remain an LHA case from 16 June 2008.

    Their response:

    Scenario 1
    Where the claim is made continuous this will work in the same way as a
    backdated benefit claim. This means that there have been no triggers to
    revert to LHA and you would pay benefit based old HB regulations.

    Scenario 2
    The case would remain an LHA case as there has been a break in
    entitlement. Underlying entitlement will not change this.

    #95060
    Anonymous
    Guest

    My opinions on this would be that the DWP have reached the correct conclusions, but I am less inclined to agree with how they got there.

    Scenario One. In this case the decision that HB was terminated with effect from 5 May 2008 has been revised to give effect that the claim is now on-going. This effectively means that that the decision to pay the claimant as an LHA case with effect from 16 June 2008 has also been revisied, because this can no longer be considered a “new claim” on account of the claimant receiving an award.

    I think the DWP’s reference to “the claim being made continuous” should refer to the fact that the claim was effectively never ended following the revision of the terminating decision, rather than it somehow being continuous because a new award is commenced from the first date of expiry of the old.

    Scenario Two. This would be a straightforward LHA case since there is a new claim after 7 April 2008.

    Although they have not explicitly addressed the issue of the underlying entitlement, I think the basic principle of “new claim = LHA/no new claim = no LHA” would hold good here too.

    In other words, underlying entitlement should be awarded on the “basis of the claim as it would have appeared if any change of circumstances had been notified at the time that change occurred.” So if the underlying entitlement for the period 5 May 2008 to 16 June 2008 could have been awarded without a new claim, then it would be awarded with reference to the ROD. However, if the overpayment period included a period to which there was no entitlement, then the subsequent underlying entitlement would have to be based on a maximum rent (LHA).

    Regardless of the scenario the only thing that would ever matter in my opinion is this – “Is this a new claim on or after 7 April 2008, or not?” If it is then LHA applies, if it is not because the decision constitutes a supersession or a revision, or any other action regarding an earlier award, it is not.

    I really don’t think the DWP have helped with their continual references to “gaps” in entitlement, which are neither recognised in the regulations, nor appropriate to extended payments (currently).

    #95061
    andyrichards
    Participant

    What a mess.

    What was wrong with the “big bang” approach, which some of the Pathfinders used? Everyone went straight onto LHA if it was more than their existing eligible rent. Simple to understand. Simple to administer.

    No arguing over when a new claim isn’t a new claim; no incentive to withdraw a claim and then re-claim. Ah….happy days!

    #95062
    Julian Hobson
    Participant

    It might be useful to look again at the idea that a customer can simply withdraw a claim, my position is they can’t.

    This isn’t really about what a customer can do it is about what the LA can do to comply with the request.

    Reg 87(2) allows a customer to withdraw a claim before it is decided, so that doesn’t help. By implication you can’t withdraw after it is decided and so what can yopu do ?

    The only help comes in the LA’s powers to terminate (there is no other way of making a decision so as to terminate entitlement unless there is a change of circs that results in a nil award ).

    So look at the D&A regs.

    Reg 11 allows us to suspend where we have a doubt as to entitlement.

    We then ask the customer to provide the info we need.

    They fail to supply

    We terminate under reg 14.

    It follows that the only way you can terminate an award of HB or CTB is:

    1. for the customer to demonstrate that they are no longer entitled (no longer liable, or circumstances mean £0.00 award) by providing evidence or statement to that effect.

    OR

    2. for the customer to tell us that they have had such a change, fail to provide evidence, we suspend and then terminate.

    In order to effectively withdraw ones claim for HB or CTB in order to move onto LHA you would need to show that you were genuinely no longer entitled or plant the seed of doubt so as to get a termination.

    The second option is very dangerous as you are likely to lose out on at least 5 weeks benefit and that might not be to your advantage.

    We will certainly not be allowing “withdrawals” as we see no way in which we could comply with such a request.

    #95063
    Anonymous
    Guest

    Okay – so let me get this straight in my head –

    [list:c95c694837]IS/JSA(IB) ends. HB is suspended.
    Letter to customer requesting all income for the period.
    ETD received showing customer is back on IS/JSA(IB) from a different date (i.e. there is a break between the two claims).[/list:u:c95c694837]

    In this scenario, the claim would stay suspended for a calendar month, under DMA Regs, and be cancelled if no reply was forthcoming from the customer. At that point, he should be invited to reclaim from the date of the new IS/JSA award, and invoiced for any overpayment caused by the break in claim. If the customer then wanted to claim for the period in between, he should request backdating and fulfil the criteria in the usual way.

    [b:c95c694837]If the backdating is allowed[/b:c95c694837] then it is not true ‘backdating’, but a reconsideration of the decision to cancel the previous claim, albeit with the information provided outside the calendar month (therefore the time extended due to circumstances) and therefore pre-LHA

    [b:c95c694837]If backdating is NOT allowed[/b:c95c694837] it’s an LHA claim, and tough for the period between the claims.

    #95064
    Anonymous
    Guest

    Err….yeah….I think!! 8) :15:

    #95065
    Anonymous
    Guest

    It makes sense in my head. It’s just when I start to say it out loud I get muddled up. 😆

    #95066
    Anonymous
    Guest

    [quote:b4ae7630ef]It might be useful to look again at the idea that a customer can simply withdraw a claim, my position is they can’t. [/quote:b4ae7630ef]

    This has been discussed before, most recently here:

    http://hbinfo.org/forum/viewtopic.php?t=10290

    In CJSA/3979/1999 Commissioner Mesher concluded that “even where there is a current award of benefit, a claimant may withdraw a claim on a prospective basis.” So it would seem that there is some authority for a claimant to withdraw their (already determined) claim for old-style HB and immediately reapply for LHA.

    #95067
    peterdelamothe
    Keymaster

    Indeed. Comm Jacobs said last week at an HBINFO event that of course a claimant may choose to do so. Nor can this be an attempt to “take advantage” under the provisions of reg 9 since that is limited to creating the liability ..which does not apply here.

    #95068
    Anonymous
    Guest

    Thanks mwiggI and Peter.This being the reality then back to my earlier post on this thread….What will the advice be from HB staff, welfare rights officers and voluntary agencies to those existing HB recipients who would be better off under the new scheme?And if claimants are to be advised to cancel HB and then claim LHA will it be done systematically, in an orchestrated fashion ( eg a letter to all existing private HB claimants pointing out the new rates and flagging up the option) or what? In many councils HB staff and welfare rights officers are charged with the responsibility of income maximisation of claimants ( legally of course).Nothing illegal in this option so part of the job I would say. And somewhere down the line an appeal might come forward from an irate HB claimant who has been deprived of the opportunity to exercise the option because of a lack of information from the council.
    Please don’t shy away from this and think it is not an issue.It is, big style.

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