Terms & Conditions

[Anonymous]

I remember reading somewhere on the boards that in order to pay benefit you need a valid claim (obviously), but also need a valid claim to calculate underlying entitlement. Which from my reading of Reg 104 of the HBR 2006 also seems to be the case.

So here’s the scenario:

Award is in payment and in December 2006 the claimant notifies us that he had a second job for the whole of October.

The award is reassessed and, on the basis of the increased income, the claimant is not entitled to benefit from the time he starts his second job.

The claimant submits a new application form in December 2006 and, from the evidence available, it is clear he would have had some entitlement from the beginning of November onwards, when the second job ceased.

There is an overpayment from October to the paid up to date in December (which precedes the date on which the latest application was made).

Can we calculate underlying entitlement?

[Anonymous]

Andy,
If you have the information you would need to do an assessment for the period of the overpayment I don’t think its a case of can you, more like one of “you must calculate u/e to reduce the overpayment”.
You had a valid claim which was cancelled when new info came to light (and thus created the o/p).
You now have to reduce this overpayment by the amount of u/e. 8)

[Anonymous]

[quote:c8fae028b5]You had a valid claim[/quote:c8fae028b5]

Not trying to be pedantic, but I didn’t have a valid claim, I had an award – and as Reg 104 only talks about “on the basis of the claim” this is where the problem arises.

[Anonymous]

I think at the time of payment you did have a valid claim. It was only stopped / made invalid when you made your (subsequent) superceeding decision.

[Anonymous]

Sorry, but I still have to disagree. The DWP have themselves made the distinction between a claim and an award – the claim ceases to exist once a determination has been made on it, following which you have an award. This is why a claimant cannot withdraw their claim once a determination has been made – the claim has ceased to exist, thus cannot be withdrawn.

[Kevin D]

Andy,

I completely understand the distinction being made. I’d go so far as to say that para 2 of Sch 7 of the CSPSSA 2000 is so poorly thought out that it is in grave danger of inviting the usual derision reserved for ambiguous and rubbish drafting.

But, I have a sneaky feeling that Cmmrs would find a way of deciding that “claim” & “award” are interchangeable for the purposes of [b:f40d874e7e]HBR 104[/b:f40d874e7e].

Once again, a challenge to the DWP: Any chance of dealing with these ambiguities? Er, yeah, thought not…..

[Julian Hobson]

sorry this reply is a bit late.

I don’t think the use of claim in 104(1) (a)(b) or(c) creates any real problem.

There is no doubt that the claim existed at some point, the fact it has now ceased to exist doesn’t mean that we cant look at how it used to look.

Even if we are talking about a CoC that clearly couldn’t have existed at the time of the claim, 104 (1) (b) refers to claim.

In order for this to operate you have to suspend reality and think about how the claim would have looked if the customer had been able to forewarn us that a change of circs would happen at some point in the future.

[Anonymous]

The issue was clarified under the old (Pre October 200) version of Reg 104 by the Court of Appeal in Adan v SOS and LB Houslow. [R(H)5/04]

Under the old Regs a new claim had to be made if the HB claim was ended on termination of IS. It was previously held in R v Wye BC ex p Lord that in the absence of a new claim there could be no underlying entitlement. This was followed in CH/4871/2002

Lord and CH/4871/2002 were overturned by R(H)5/04.

There is no doubt that underlying entitlement has to be awarded even in the absence of a claim

[Author]

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