Terms & Conditions

[lizc]

Hi

I would be very grateful if anyone could tell me whether or not we are legally obliged to send a notification letter following a Rent Officer Decision where the referral was because the previous decision was 52 weeks old and the Rent Officer’s Decision is exactly the same as the previous one. So there is no change to entitlement.

Currently we do not notify and the RO does not send the customer a copy of the determination, so surely we need to notify because they’ve got the 6 weeks to ask for a redetermination?

Thanks!

[Anonymous]

I’m only guessing here, but I think my answer would be yes, you do need to send notification.

You stated quite rightly that the client has 6 weeks to appeal against the rent officers decision (unlikely, I know if it’s still the same), and the fact that you are “setting the rent” for the period means that I would have thought a notif letter would be mandatory, and if not would surely be good practise. 8) (P.S. we send one out in these circumstances!) 😉

[Anonymous]

Liz,

Yep Jon is right and you sure do have to send the decision letters out, (one to claimant, and one to L/L if L/L is payee). You have to send the letters as you are superceding the previous decision. Although a zero-sum change, it is still a change, (its a bit like year-end letters for GPC or IS cases in private sector lets. The rent doesn’t change, the HB doesn’t change, but the letters still have to be sent).

Hope this helps…

[lizc]

Thank you very much both! I wonder if either of you (or anyone else) could point me to the specific legal provision that says we must, so that I can show my manager that we must do it? I have tried to find it myself with no success hence my original post.

Thank you very much!

[Anonymous]

Try this link to new reg 90 (HB regs)

https://hbinfo.org/menu2/hbregs06/090_06.shtml

8) 😉

[lizc]

Thanks! Do you think this is sufficient to include a decision with no change? That was the bit I was trying to be sure about really.

Cheers!

[Anonymous]

This can seem elusive, can’t it? There is an element of subjectivity in establishing what amounts to a decision, as opposed to some internal admin action of no consequence. Every time an issue arises that could theoretically affect the amount of benefit in some way, the Council needs to consider whether there is a need for a substantive superseding decision at a new rate. But often, it will be necessary to announce, with rights of appeal, that the Council has considered the issue and concluded that no substantive change is required. This might happen where, for example, the claimant has requested a superseding decision but the Council does not consider it necessary.

For legal references you need to look at a couple of Commissioners’ decisions in the DLA jurisdiction where refusal to supersede is a common reason for dispute (“I have got worse, please increase my DLA” “No you haven’t”). In R(DLA) 6/02 the concept of “supersession at the same rate” was coined; but in Wood v Sec of State the court simplified that by concluding that refusal to make a superseding decision is itself a first instance decision. Either way, a notice is required with appeal rights.

As I say, it’s a subjective call when you do this. HB Spec raised the example of a year-end decision on a private sector HB claim where the claimant is on a passport benefit – that’s a borderline one. If the claimant is getting the full rent with no restrictions, you could argue that there is no conceivable change that could be made and no new decision is required.

[Anonymous]

Liz, although I can see some validity in Peter’s argument outlined above, as new reg 90 says
“90. Notification of decisions

(1) An authority shall notify in writing any person affected by a decision made by it under these Regulations—
(a) in the case of a decision on a claim, forthwith or as soon as reasonably practicable thereafter;”……….. etc

I think it is applicable here.
You have made a decision to pay using the new rent referral. I think that the fact it is still the same as the old amount is immaterial. You have made a decision therefore you must notify anyone affected. 8)

[Anonymous]

Liz, again Jon is quite right…

I have had ‘managers’ like yours before, best to avoid if you have the chance!!! But, as per the above, Reg 90 (1) (a) (new regs), confers no powers on you, (or even the chief exec of your LA) to not issue letters. It is a blanket rule, a must do power, rather than a can do choice…. So you should remind your manager that the regs give you no power not to send letters, rather than looking for powers to withhold letters, as those powers do not exist (your manager is asking you to prove negative, which is silly).

To relate your managers intended actions to law, have a go at CH/1675/2005 (link at end of this post). This will advise your manager of the practical implications of his/her actions if you do not send the letters. In a nutshell, if the LA concerned do not issue the decision letter(s), any later identified O/P will not be recoverable…

“[i:c3184845b1]In CH/1176/2003 it was held that the ‘notice’ referred to in regulation 99(2) must relate to the payment, and not the overpayment.. A claimant will always realise that he has been overpaid once he receives a notice to that effect, and regulation 99(2) would therefore provide no protection if it could apply to a notification that an overpayment had occurred. The decision of the tribunal is therefore erroneous in point of law, and must accordingly be set aside[/i:c3184845b1]. CH/1675/05, Para 9…

The law that says supercessions are notifiable decisions are not in the HB regs (ignore the government spiel that the consolidated regs ‘wrap up’ HB, they don’t!). Your starting point is Schedule 7, (Para 4) of the Child Support, Pensions and Social Security Act 2000, which gives you power to superceed decisions. Reg 7 of the HB/CTB D&A regs confirms, “[i:c3184845b1]The appropriate relevant authority may make a decision under paragraph 4 of Schedule 7 to the Act upon its own initiative or on an application made for the purpose on the basis that the decision to be superseded is a decision – […] which adopts a rent officer’s determination [/i:c3184845b1].

So your supercession is a decision, and therefore must be notified… Sorry this is so long, haven’t written a post like this in ages, but hope it helps…

http://www.osscsc.gov.uk/aspx/view.aspx?id=1876

[lizc]

Thank you all very much indeed – your help is much appreciated.

[Anonymous]

OK, lets break down the issues here.

There’s nothing new about Reg 90: it’s just the old Reg 77 renumbered. What is says, like it always said, is that you must issue a decision notice when you have made a relevant decision.

Relevant decision is defined in Sched 7 to the 2000 Act as a decision on a claim, or a superseding decision; there is duty to notify when either of these types of decision is made for the first time, and again if either type of decision is subsequently revised.

But none of this gives you an exhaustive definition of what is, qualitatively, a decision on a claim or a superseding decision in the first place. For that, you need to exercise some subjective judgment, guided by the case law that I referred to earlier.

In the particular case of a renewed RO decision at the same rate, I think I would lean towards the view that it is a decision and as such requires a notice: although the amount has not changed, the projected period for which it can safely be relied upon has. This is useful informatiopn for the claimant in planning important life decisions, like whether to move or not. If the amount set by the RO is not the full amount, there is a fresh right to seek a redtermination. These are relevant matters that do, I think, cross the threshold into being a substantive decision.

[Anonymous]

Another thought: an RO decision at the same rate is given an effective date by D&A Reg 8(6A)(a) – this suggests that it should be regarded as a substantive outcome decision rather than a non-decision.

[Anonymous]

Peter, then I think that we agree…

My only reservation would be the ability for decision-makers (at all tiers) to decide what constitutes a substantive decision, and therefore to not issue (or suppress), no change letters. I have worked with LA’s where in the not too dim and distant past, minimum change rules apply (eg. the LA won’t make a retrospective change in entitlement, if the change is less than xxx pence per week. So clmts lose additional monies or LA’s have better PI’s because of reduced O/P’s), and this is under the guise that the change is not substantive (& in one case, it was argued, not cost effective for an LA dealing with public funds, it costs more to make the change in officer time than we would pay out etc).

So whilst the contributors of this form are of course skilled at decision-making, some of the more questionable management decisions out there are well, questionable. What you and I might consider substantive, might not be so for a 3rd party, (as illustrated above). There are I think 408 LA’s that administer HB. I would bet my hat that not all would agree with any common decision about what is or is not a substantive decision. So my rule of thumb, if you re-assess a case on a HB system, regardless of the reason, then you issue the letters that result. This also has the effect of possibly reducing the ‘I couldn’t reasonably be expected to know I was being overpaid’ argument made by a claimant. As my counter argument would be, “but you received how many letters? What did you do with them all?”. I would rather work with too many decision letters, than only 1 a year… Also, the non-issue of the ‘no-change’ letter, might be that any resulting O/P might not be recoverable, as per the above case law…

[Author]

Posts