LHA and advantageous changes

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  • #33929
    Anonymous
    Guest

    This message follows up on a query raised by Rochford Council yesterday, but I hope it will be of interest to everyone.

    We were looking at the arrangements for making a superseding decision in a case where LHA comes up for annual renewal or in those cases where LHA is adjusted early because of a change affecting the size criteria.

    The question was: suppose there is a change that the LA cannot anticipate, like the birth of a child or the separation of a couple under the same roof, or the arrival of a non-dep. These are changes that will increase the number of bedrooms allowed and a new LHA is therefore set under Reg 13C(d)(i). In most of the above cases the change is likely to increase the amount of HB (although of course the non-dep’s income will be a factor).

    It appears that the superseding decision to bring this about will be made under the new D&A Reg 7A(2) – as far as I can see, this new Reg applies to all Reg 13C events. The effective date of a Reg 7A(2) supersession is set by D&A Reg 8(15) as amended. The effective date is the start of the week in which the Reg 13C determination is made.

    The advantageous change time limit is, as we know, built into Reg 8 as it applies to a superseding decision under Reg 7(2)(a) – clearly a quite different provision from Reg 7A. So I am pretty sure that it does not apply to LHA adjustments.

    Is there anything in Reg 8(15) itself that implies any kind of time limit? Reg 13C is triggered by the LA receiving notification of an event affecting the size criteria, rather than by the event itself. Presumably no determination can be made under Reg 13C until the LA is notified; Reg 8(15) applies the change from the week of that determination. Does this mean that people who delay reporting the event will in turn delay the making of the determination, and thereby lose out on arrears? I don’t think so, because if that were the case you would also have to delay the effect of a Reg 13C determination where:

    – the change is disadvantageous and reported late, or
    – the change is advantageous and reported promptly, but the LA delays in dealing wth it.

    I think the ony consistent and coherent way to read Reg 8(15) is to say that there is no time limit and you always go back to the start of the week in which the event actually happened – irrespective of whether that is good or bad for the claimant.

    Just to make things interesting, Reg 8(15) only applies to the Reg 13C adjustment itself … any further means-testing implications (such as a non-dep deduction, aggregation/disaggregation of a partner’s income, applicable amount etc) would have to be dealt with under the normal change of circs rules under Reg 7(2)(a) and Rreg 8(2) and (3): there [b:efcf9bbfc1]is[/b:efcf9bbfc1] a time limit for those.

    #94453
    Nicky
    Participant

    Peter

    I’ve been reading the new regs this week and view your post with much interest.

    I’m not proposing an alternative view but just to play devil’s advocate here:

    After April 08 we’ll be determining LHA levels regularly. Some will relate to new claims, some to changes of address and some to changes of circumstances meaning the claimant will be placed in a new accommodation category.

    With new claims, we’ll be determing the LHA at the date of claim (regardless of when we actually do get round to making the determination) so I read that the date of the determination will be the date of claim. For example, claim received on 17 April 2008, LHA determined on 30 April 2008 due to backlog – the determination is effectively made on 17 April 2008.

    So to follow, when someone reports a change in their circumstances, we would be making the determination on the date it is effective from (notified in time or a disadvantageous change) or the date we were otherwise told (advantageous but notified out of time) again regardless of when we make the determination.

    E.g. claimant qualifies for 1 bedroom but has a baby on 1 May 2008 and tells us on 8 May 2008 – date of determination is 1 May 2008. If she didn’t tell us until say 5 June 2008, then that (5 June) would be the date of determination.

    So we’ll still be applying the late notification rules.

    #48181
    Anonymous
    Guest

    Peter and Nicky –

    I too have been studying the new regulations and this particular thread with great interest.

    At the moment I think I agree with Peters’ conclusion that Reg 13 C changes are effective from the start of the week in which they occur, regardless of timely reporting or their advantageous/disadvantageous nature.

    For what it’s worth here is my reasoning –

    Regulation 13C states when a maximum rent (LHA) is to be determined. Amongst the triggers for the new determination are the notifications of changes to the category or dwelling or the death of a linked person.

    Having received such notification, 13C (1) then goes on to state that the authority shall determine a maximum rent (LHA) in accordance with regulation 13D

    13D (1 )Then goes on to state that the maximum rent (LHA) shall be the local housing allowance determined by the rent officer by virtue of his orders applicable to the BRMA at the relevant date

    13D(12)(b) then goes on to define the relevant date as being the date on which the change of category, or dwelling, or death occurred (rather than the date it was notified)

    D&A Reg 8(15) then tells us that the superseding decision decision takes effect from “the first day of the benefit week in which in which the determination in accordance with Reg 13C was made.”

    The determination in accordance with Reg 13C is made “in accordance with Reg 13D.” The determination made in Reg 13D, is that the LHA shall be that determined by the RO at the relevant date. So if we accept that the determination referred to in 8 (15) is in fact the ROs’ determination at the relevant date, then that brings us back to the start of the week in which the change happened.

    If that is the way the regulations are intended to work then it’s pretty convoluted but it could be summed up as follows –

    13C – When notified of a relevant change a new LHA is to be determined.
    13D – The maximum rent will then be the LHA determined by the RO at the relevant date
    D&A 7A(2) A superseding decision should be made
    D&A 8(15) The decision will be superseded from the the Monday of the week of the in which the LHA was determined by the RO on the relevant date via Reg 13C and 13D.

    Any takers??

    #94454
    mw2014
    Participant

    I would like to take the thrust of Nicky’s suggested argument, as it applies to changes of circumstances, further.

    Whilst Richard has indicated his agreement with Peter’s view, that the event date is all important, the logic used in the end hinges on the key D&A Reg 8(15) as amended. This can be summarised as follows:
    [quote:e0c7a64529]A decision shall take effect from the first day of the benefit week in which the determination in accordance with regulation 13C was made[/quote:e0c7a64529]
    Under everyday interpretation, surely the determination is made on whatever date the rent officer or local authority decides the maximum rent applicable to the case under consideration? The relevant date is necessary to deciding from which set of values to choose, but would appear to have no bearing on the date from which changed benefit becomes payable.

    Peter is clearly right to point to the lack of any safeguard against a claimant withholding information that would otherwise cause the maximum rent to be reduced, and thus also avoiding an overpayment.

    However, D&A Reg 8(6) concerned with rent officer (excepting 52 week) determinations works in broadly similar terms to 8(15), and perhaps more clearly sets the effective date
    [quote:e0c7a64529]as if that determination or redetermination were the relevant change of circumstances[/quote:e0c7a64529]
    The same issue for disadvantageous changes therefore existed before, although LHA could arguably increase the potential for this type of situation to arise.

    This really does seem to be something that remains too open to interpretation, and I see remains open on the LHA issues log still.

    #94455
    Anonymous
    Guest

    Your points are well made mw2014.

    To date the DWP have yet to give me their interpretation of the new D&A Regs, and it is a shame that the LHA manual overlooks them entirely.

    Also, I think that because 13C relates to “notification” of a change which affects the category of dwelling, it would appear not to apply to a change in age of an existing occupier as these changes do not require notification under regulation 88(3)(b).

    So a 16 year old moves in and the notification of this triggers Reg 13 C and D&A 7A (2). But an existing dependant sharing a room with a sibling does not trigger 13C on their 16th birthday. (Unless this constitutes “relevant information regarding a claim” under 13C (2)(b))

    #94456
    Debbie_Perry
    Participant

    Further to this thread then, (which I am not sure I have fully understood), what will those responsible for training be telling benefit staff who will be responsible for the assessment of any such changes? Examples would be helpful.

    Are trainers going to be using the DWP Trainer’s brief or are they developing their own training programmes?

    #94457
    Anonymous
    Guest

    Good question debbie.

    As a trainer I shall be explaining what the legislation says (Reg 13C and D&A Reg 7A and 8(15))

    I will also explain what the DWP informed me the was their intention for the legislation (that is that superseding LHA decisions are to be effective from the Monday following the relevant change, regardless of date of notification) and I shall also be explaining why this is not really possible with the regulations in their current form.

    In fairness to the LHA implementation team, they have been willing to listen to the concerns raised and have passed them on to their solicitors. I intend to provide trainees with update bulletins when I am notified by the DWP of the solicitor’s conclusions, but until then there is not much else trainers can do.

    It’s not merely trainers that are having to wrestle with this issue either: the software suppliers are having to make programming changes, and DWP informed me that two suppliers had raised the same concerns as discussed in this thread, and presumably they too will be waiting on DWP solicitor’s advice.

    One thing I do not intend to do is use the DWP Trainer’s Brief. (As already mentioned on this forum) one of the examples contained in that document (on page 20) has an example of an LHA being superseded due to a claimant’s income increasing. It’s quite disappointing that they can issue information like that which is just going to add to the confusion.

    #94458
    pbirks
    Participant

    Can I just ask for any comments/points of view etc on this please?
    lets go back to the scenario originally described – a non dep moves into a property im May 2007.
    This is(potentially) beneficial because it INCREASES the lha used in the claim
    and is (potentially) a detrimental change because of the non dep charge. so….
    Lets say that the non dep moveds in on 15.05.08 –
    LA are not notified until 30.06.07
    Non dep charges are taken from 19.05.07 and creates an o/p (max charge for 6 wks 19.05.08 – 29.06.08)
    The new lha rate is used from 07.07.08 (mon after notified)
    Can o/p be reduced by u/ent – had the custonmer told us in time of his actual circs, hb would have been more as the new (higher) LHA would have been used???
    I want to say “YES!!!” of course, but……. Im not sure… am training this afternoon – any arguements one way ot tother would be appreciated!!! cheers ๐Ÿ™„

    #94459
    pbirks
    Participant

    Can I just ask for any comments/points of view etc on this please?
    lets go back to the scenario originally described – a non dep moves into a property im May 2007.
    This is(potentially) beneficial because it INCREASES the lha used in the claim
    and is (potentially) a detrimental change because of the non dep charge. so….
    Lets say that the non dep moveds in on 15.05.08 –
    LA are not notified until 30.06.07
    Non dep charges are taken from 19.05.07 and creates an o/p (max charge for 6 wks 19.05.08 – 29.06.08)
    The new lha rate is used from 07.07.08 (mon after notified)
    Can o/p be reduced by u/ent – had the custonmer told us in time of his actual circs, hb would have been more as the new (higher) LHA would have been used???
    I want to say “YES!!!” of course, but……. Im not sure… am training this afternoon – any arguements one way ot tother would be appreciated!!! cheers ๐Ÿ™„

    #94460
    pbirks
    Participant

    Can I just ask for any comments/points of view etc on this please?
    lets go back to the scenario originally described – a non dep moves into a property im May 2007.
    This is(potentially) beneficial because it INCREASES the lha used in the claim
    and is (potentially) a detrimental change because of the non dep charge. so….
    Lets say that the non dep moveds in on 15.05.08 –
    LA are not notified until 30.06.07
    Non dep charges are taken from 19.05.07 and creates an o/p (max charge for 6 wks 19.05.08 – 29.06.08)
    The new lha rate is used from 07.07.08 (mon after notified)
    Can o/p be reduced by u/ent – had the custonmer told us in time of his actual circs, hb would have been more as the new (higher) LHA would have been used???
    I want to say “YES!!!” of course, but……. Im not sure… am training this afternoon – any arguements one way ot tother would be appreciated!!! cheers ๐Ÿ™„

    #94461
    Nicky
    Participant

    I’ve just been browsing the guidance manual and it does cover advantageous changes at paragraphs 3.68 and 3.69.

    Unfortunately these appear to completely contradict each other, the law and DWP policy – don’t they?

    I’m just confused even more now………….

    #94462
    Anonymous
    Guest

    I agree Nicky. Here’s the extract:

    [quote:b1373a4fb6]3.68 The rules on applying the new rate when notification is late are unchanged. If the claimant has good reason for the late notification, the new eligible rent will apply from the date of change of circumstances. [HB Reg 79]
    If there was no good reason and the change was
    โ€ข favorable, it will apply from the date of notification
    โ€ข unfavorable, it will apply from the date of change of circumstances

    3.69 However, if the claimant does not report a change of circumstances on time, the new maximum rent is based on the LHA applicable at the time of the change, not when the change was notified.

    [b:b1373a4fb6]Example[/b:b1373a4fb6]
    Claimant circumstances change on 1 October, but the local authority is not notified until 3 November. The claimantโ€™s new maximum rent is based on the October LHA, not the November LHA.[/quote:b1373a4fb6]

    There are two difficulties with this: one legal and one logical.

    The legal difficulty is that the rules setting a time limit for reporting advantageous changes do not apply to superseding decisions under Reg 7A of the D&A Regs – so there needs to be some amendment there if DWP intends LHA changes to fall under the one-month time limit rule.

    The logical problem is that, even if you do import the one-month rule into LHA changes, the advice at para 3.69 is saying that you treat the claimant as if they had a change of crcumstance in October in November (yes I did mean to say that, no I know it doesn’t make sense). It can’t be both: either you pretend the change happened in November or you don’t, but it would require some completely new and carefully drafted content in the D&A Regs to bring about the effect suggested there: it seems to me that the guidance is proposing a mechanism whereby you implement the change as it would have been implemented in October, but don’t actually do it until November. That is not how the one-month rule currently works, even if it did apply to LHA changes, which it doesn’t.

    #94463
    cbuck
    Participant

    [quote:827e2708ad]you implement the change as it would have been implemented in October, but don’t actually do it until November.[/quote:827e2708ad]

    I presume this is the point of the ‘relevant date’ definition in reg 13D:

    [quote:827e2708ad](b) the date of the change of dwelling, change which affects the category of dwelling, or date of death, to which a notification referred to in regulation 13C(2)(c) or (d) relates[/quote:827e2708ad]

    This ensures that it is the LHA rate effective on the date the change happened in reality, rather than any deemed date that may arise from applying HB effective dates to the event, that is used following a CoC.

    But then we are left with the muddle of when to actually apply the October (in Peter’s example) LHA rate from. For what it is worth I agree that the disadvantageous rule does not apply to the application of a new LHA rate and this must go back to the Monday of the week – whichever week this may be – per DMA 8(15).

    #94464
    Debbie_Perry
    Participant

    ๐Ÿ˜• Am I on the right track here

    Claim paid on 2 bed LHA rate. Coc’s 1/10/08 resulting in entitlement to 3 bed LHA rate but LA not notified until 3/11/08.

    If one month time limit applies and no good reason for late notification the effective date for supersession Mon 10/11/08 using Oct 3 bed LHA rate.

    If one month time limit applies and good reason for late notification accepted the effective date for supersession Mon 6/10/08 using Oct 3 bed LHA rate.

    Anniversary date in both instances would be 1/10/09.

    #94465
    Andrew Plant
    Participant

    Hello all

    Sorry not really contributing to this rather interesting thread, but thought this was the best one to ask on.

    Looking at 7A of the DAR it makes reference in its title to Paragraph 4 (4A) of schedule 7 of the act.

    I have looked and looked and can not find 4(4A) can anyone point me in the direction please.

    Thanks

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