Moving from the old scheme to LHA

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  • #38953
    peterdelamothe
    Keymaster

    A decision has now been made on this, at least for single claimants. The one week gap requirement has been confirmed:

    http://hbinfo.local/wp-content/uploads/CH%20999%2010.doc

    #110318
    Anonymous
    Guest

    There’s only a gap if you accept the SOS’s argument that the new claim isn’t made until the old award has ended (which the UT judge obviously did). He seems unaware that you could end your claim and claim again in advance on the same day, both actions having effect the following Monday. A bad decision but no longer relevant now. We now have to expain to people who we encouraged to change why their benefit will be going down to LESS than they were getting before!

    #110321
    Kay_Tade
    Participant

    Agree with Chris……

    #110323
    peterdelamothe
    Keymaster

    [quote=Chris Dring] We now have to expain to people who we encouraged to change why their benefit will be going down to LESS than they were getting before![/quote]

    Not in every part of the UK Chris! As the Rent Officer has pointed out, rents are moving up sharply in some parts of the UK and the LHA rate is being dragged up. Not so mych in the South of England of course; the caps kick in.

    #110324
    peterdelamothe
    Keymaster

    Also barrister Paul Stagg was involved at least at Tribunal level so I am sure all the issues were raised.

    #110326
    Anonymous
    Guest

    “He seems unaware that you could end your claim and claim again in advance on the same day, both actions having effect the following Monday.”

    This was addressed in a roundabout way. At the end of para 14 and start of para 15:

    “In Judge Mesher’s view, the withdrawal must be unequivocal. That reasoning was also accepted by Judge Jacobs in CJSA/1332/2001 (paragraph 10)… I am satisfied that this must be correct …there can be serious consequences from a claim being withdrawn and then a new claim made to take supposed advantage of a change in regulations… it is rightly held that a claim can only be withdrawn explicitly.”

    It is important to note that in this case, the claimant had refused to withdraw the award.

    In any case, I don’t see how such a request could be unequivocal if it is accompanied with a new claim.

    #110359
    Julian Hobson
    Participant

    Withdraw monday – reclaim friday. It simply wasn’t addressed in the decision. Given the very clear decisions about how a withdrawal and reclaim might work so as to create a break in entitlement with a withdrawal and reclaim in different weeks,applying that same logic to a monday withdrawal and friday reclaim means no break.

    #110360
    Kay_Tade
    Participant

    [quote=Julian Hobson]Withdraw monday – reclaim friday[/quote] That’s always been my view. Nothing I have heard, seen read changes that. But then again I’m no Judge. 🙂

    #110361
    Anonymous
    Guest

    There is a first-tier tribunal decision from Richard Poynter which addresses this.

    The withdrawal request is notification of a change in circs effective from the Monday following. The new claim cannot be treated as a claim because it is made at a time when there is still an existing award. It takes effect as a further change in circumstances, which contradicts the previous request in asserting that the claimant does want to receive HB after all. So there is no longer any ground to supersede on the basis that the claimant wishes to withdraw their award.

    There was no need to address hypothetical situations in this CD – it relates solely to the facts of the case. In this case, the claimant refused to withdraw her award. Any comments about what might have happened in a Monday withdrawal Friday new claim scenario would surely be obiter…

    #110367
    Kevin D
    Participant

    In CH/4085/2007, Cmmr/Judge Rowland also found that a claim form cannot have effect as a claim whilst an existing award is still in place. The same Cmmr/Judge found similarly in CH/0524/2004, albeit in a different context.

    Even if a clmt unquestionably “withdraws” a claim on Monday, I’m not sure how that takes it any further forward. If a LA receives the request on Monday, the change doesn’t take effect until the following Monday (the “1st” following Monday). Any claim form submitted during that last benefit week is of no effect as a claim because an award is still in place (this is surely consistent with Judge Poynter’s FtTD as cited by Michael). Any claim made on the 1st following Monday cannot provide an award of benefit until the 2nd following Monday (HBR 76(1)). In my view, that is exactly the effect of Judge Ramsay’s decision. As far as I can see, the “advance claim” provision does nothing to change the basic premise of a claim not being possible during an existing award.

    #110370
    Kay_Tade
    Participant

    [quote=Kevin D]As far as I can see, the “advance claim” provision does nothing to change the basic premise of a claim not being possible during an existing award.[/quote]

    If that principle applies then a claim can’t be made when there is no entitlement to benefit as well, No?

    Time lines 13, 17 weeks apply to a “nil” entitlement period for advanced claims so I would presume the same should apply to a period when an award exists. As an aside what about an intention to claim from the Monday?

    #110384
    Kevin D
    Participant

    Kay, did you have in mind “closed period supersessions”? If so, and I may have mentioned this once or twice before :bigsmile:, my view is that CPS’s are not lawful in relation to HB/CTB….

    On the intention issue, there is still the bottom line “date of claim”. Even if an intention was submitted, no successful “claim” can be in place during as existing award. However, I’ve noticed Derek Stainsby has posted on the main forum about the FtTD case he is involved in (the Judge Poynter case) – leave to appeal to the UT has been granted and he suggests the argument(s ) will include trying to distinguish Judge Ramsay’s decision. *Hopefully”, that will nail all aspects once and for all (whichever way it goes). By that time, my I expect my “interest” in benefits to be history in any case….

    #110386
    d-stainsby
    Participant

    CH/999/2010 may well not be the final word on this. Judge Poynter has given leave to appeal to the Upper Tribunal in the cases where I represented before him.

    CH/999/2010 is distinguished by those appeals because my clients made explicit requests for the subsisting awards to be withdrawn before making the subsequent claims. The requests to withdraw the awards and the claims were made in the same week, and so the issue of the one week gap is still open.

    The arguments also seem to be more detailed than in CH/999/2010

    #126248
    d-stainsby
    Participant

    Its now settled by CH/2008/2011(just handed down) that there must be a one week gap because a claim made during the currency of an award is to be treated as an application for supersession. Judge Mark notes at paragraph 6 of CH/2008/2011:

    “It is further the case that a purported fresh claim made during the currency of an existing award takes effect as an application to supersede that award at least where the claimant is simply applying for increased benefit (R(IB)2/04, at paragrpahs 146 and 197)”

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