One week break

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    I know this has been covered extensively but would appreciate further thoughts etc.

    I work for advice agency and my client will be better off under LHA than under the LRR rules. The extra HB should cover the week’s break in 5 weeks. The council say they will only accept a move with a week’s break.

    The problem is how to move the client over and appeal the break without risking the claim not being moved over at all.

    I thought the client could request his current claim ends, then wait a week and put in a new claim, requesting backdating for the week gap. The good cause for backdating would be that the council have advised him he has to wait a week. If on appeal, the council’s advice was correct, he would continue on LHA and there would still be the gap. If the advice was wrong, the claim would be backdated to cover the gap, but would still be LHA.

    Can anyone see any holes in this argument? Or think of a better way to do it?

    And does anyone know if there have been any appeals about the week break issue yet?


    One possible way to do it for future cases:

    – Find out the claimant’s HB paid-up-to date
    – Request the gap from 1 week before the paid-up-to date. This will create a one-week overpayment
    – Make sure the LA use ‘underlying entitlement’ to wipe out the one week overpaymeny.

    Hey presto! There will be a one weeks gap in entitlement, but the claimant will not lose benefit for it.

    (hope that makes sense)



    I don’t agree with spencers’ suggestion – I don’t think you can retrospectively withdraw your entitlement. You cannot relinquish the right to something you have already received.

    If you can get the timing right, and depending on processing times of the local authority, you might be able to trigger an LA-error non-recoverable overpayment for the break. If your claimant is paid 4-weekly, find out when the next payment is due to be made then submit the withdrawal request at close of business of the Friday before the payment is due. As long as they sit on it for a day or so and release the 4-weekly payment you could argue that the last week is a non-recoverable overpayment!

    [quote:8d1747442a]I thought the client could request his current claim ends, then wait a week and put in a new claim, requesting backdating for the week gap. [/quote:8d1747442a]
    The danger of this is that if the LA follows DWP advice, they will treat the backdating request as a request for a revision of the decision to withdraw the claim. Your client would be saying that actually, he did not want to relinquish his benefit entitlement for that week, so claim continues at the previous rates. Might be best to submit the backdating request after the new claim has been assessed.

    Good luck!

    Julian Hobson

    I’d be very interested to know what you decide to do and the outcome.

    I agree with what you suggest as being a real goer (I have suggested this to DWP and others).

    I also agree with Mwigg’s advice that DWP suggest the LA treat the Backdate request as a request for revision of the decision to withdraw.

    I’d love to see one of these at tribunal. To my mind there is no ground for revision in such a case, there is simply no ignorance or mistake as to a material fact.

    Reg 4(1)(b) (D&A regs)only comes into play if the revision is made within 1 month of the decision so even if it did apply to such cases there will be those cases where the backdate request is made after that month.

    That leaves us with Reg 4(2) (D&A Regs) and it only deals with official error and decisions that were originally more beneficial. So that one never applies in such cases because there will be no official error and the decision to be revised can never be more beneficial than the one replacing it.

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