WTC overpayment and disability premium

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  • #37870
    mthorne
    Participant

    I have a claim where the claimant has an overpayment of Housing Benefit because they did not declare their Disability Living Allowance had been taken off them. So far so good.

    I have now received an appeal saying that their Working Tax Credit included the disability element so the Housing Benefit claim should as well. They then go on to say that HMRC have removed the disability element from March 10 and will be recovering the overpayment from future entitlement.(clmt is appealing that too but thats a different story)

    I am happy (I think) that I take the amounts of Tax Credits as they received them. But…. What about the Disability premium? Do I award that for the periods they received Tax Credits which included the disability element (but later found not entiteled to it) or just the amount of the tax credit.

    (they do not have any other circs that would give them the disability premium)

    Thanks for any help

    #106548
    Clive_Buckman
    Participant

    My understanding is that you need to consider Part 3(Paras. 12 and 13)of Schedule 3(Premiums)to The HB regs 2006. Para 13(a)(i) specifies that a claimant is entitled to a disability premium if they are in receipt of the disability element of WTC. Perhaps surprisingly there is nothing in the sub-paragraph referring to actual entitlement of the disability element of WTC. So, unless somebody can demonstrate that I’m mistaken, it seems your claimnt remained entitled to a disability premium in HB while they remained in receipt of the disability element of their WTC whether or not they were actually entitled to this element.

    I would be grateful if there is anybody out there who could confirm my interpretation.

    #106552
    JULIE RYAN
    Participant

    I agree with Clive’s interpretation.
    We’ve had a similar case with the 30 hour earnings disregard. Our customer clearly stated on the application form that they worked less than 30 hrs, so we didn’t want to award the extra earnings disregard. However they were receiving the 30hr element within WTC, and when we checked, we have to award the disregard in the HB/CTB calculation, because the ’30hr element within WTC’ is 1 of the qualifying criteria (even though we know they’re not really entitled to it !)

    #106554
    Clive_Buckman
    Participant

    Thanks Julie. 🙂

    #106555
    mthorne
    Participant

    Thanks both- this is what I suspected and should make for a happy claimant 🙂

    #106556
    Kevin D
    Participant

    This is tricky. In the context of passporting benefits, “in receipt of” has already been the subject of scrutiny by the Courts, Cmmrs et al. To date, “in receipt of” has been interpreted to mean being entitled (e.g. CH/1820/2006; CH/0411/2007; “Prince”).

    Passporting benefits are taken into account for HB/CTB over the period to which entitlement is attributable whereas LAs take Tax Credits into account on the basis of the amount paid at the time on the basis of HBR 32 (supported by DWP guidance). However, a further muddying of the waters has been created by CH/0653/2009 which, depending on how you view it, could be authority for arguing that HBR 79 trumps HBR 32. If that latter analysis is correct, it would mean that CH/1450/2005 (and one or two others) are wrongly decided. It would also mean that the disability premium should not be allowed.

    For what it’s worth, I lean more and more to the view that the difference between the respective functions of HBR 32 and 79 mean it is strongly arguable that retrospective reductions in TCs should in fact be treated as a change in circs under HBR 79. All HBR 32 does is provide the means of calculating the amount to be taken into account; it cannot set the effective date which is the express purpose and function of HBR 79.

    All in all, I don’t think the DP is payable on the facts of this case and would be happy to argue as such to a Tribunal (and UT if necessary).

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