LB Southwark routinely concertiners its power to require a claimant to furnish information under reg 86 (1) of the HB regs and its powers to suspend under regs 11 and 13 of the HB (D&A) into the one decision letter. Something along the lines of....

"we have been notified by the DWP that your JSA ended on 15 September 2007. To enable me to work out your entitlement to benefit you must supply me with the information I need......In order to prevent an overpayment I have suspended your claim until you provide me with the details of your new circumstances.....To allow me to pay your correct benefit entitlement as soon as possible you should provide the requested information by 21 November 2007. If you do not supply me with the information I need then your claim will be terminated and you may have to repay any benefit that is overpaid."

Th list of info required then follows.

Nothing too wrong with that and I've seen much worse. However, I've got one at the moment where, in response to the information being provided by the claimant, the authority has then asked for additional (and in my view, entirely new) information on 1/11/07 - but has stuck with the 21/11/07 time-limit. Termination and overpayment decisions were issued on 21/11/07.

I reckon a further month needed to run from 1/11/07 and so termination under reg 14 is of no effect. Thoughts?....

I note that an overpayment has occurred in your client's case. This would mean that the decision to terminate was not made as a result of the failure to provide the information because if that was the grounds for termination then the effective date would have to be the date of suspension.

It seems the LA has disallowed from an earlier date. If so, then the grounds for termination must have been that the conditions of entitlement were no longer satisfied. It could be argued that this decision would have been made with insufficient information simply because the LA had asked for further information and because it was not supplied within the time limits it laid down, the decision maker decided to terminate on the evidence held. In those circumstances the decision to terminate may be revised if the relevant information is received within one month of the disallowance, showing that the conditions of entitlement remained satisfied..

Would that it were that simple.....

Client was claiming JSA, but advised by her obstetrician not to work due to complications in pregnancy (similar complications had led to premature birth and death of baby in previous pregnancy). Therefore claimed IS from 17/8/07 as unavailable for work.

However, whilst it seems that JSA was not paid from 16/8/07, her claim was not ended - and the local authority therefore not notified of the same - until 12/10/07. IS was only paid from 26/9/07 as it seems my client had some difficulty obtaining a med-cert from her GP (I know she can get a backdated med-cert to cover 17/8/07 - 25/9/07, but this is a different issue).

Client was homeless until 7/5/07 and applied for budgeting loan to cover costs of furniture in new accommdation - appears she lived on this (£345) during the period 17/8/07 to 25/9/07.

There are actually two HB overpayment decisions. The first, dated 5/11/07, is simply bizzare. It doesn't say so in terms, but it is clearly an overpayment based on a rent officer determination - ie rent of £184.62 p/w, new award of £86.54 p/w, overpayment of £98.08 p/w. It must be an overpayment caused by interim HB, because ongoing HB - and £9.00 p/w recovery from the same, forms part of the decision. However, there are only three awarding decisions; the first 21/8/07 awarded £80.00 p/w from 7/5/07 and is clearly an interim payment (it specifically states "indicative rent level"), the second dated 30/8/07 awards the full £184.62 from 6/8/07 (this, presumably, being the date of the rent officer determination) and the third, also 30/8/07, revises the 21/8/07 decision to award £184.62 p/w for the period 7/5/07 to 5/8/07.

So this first overpayment decision is just bollocks. Whoever made it clearly misunderstood the terms of the rent officer determination and failed to look at what the authority had actually paid by way of HB.

It was the 12/10/07 ending of JSA that prompted the authority to suspend and make an information request on 21/10/07 - client was given until 21/11/07 to supply. The information required was supplied - I have a letter dated 1/11/07 from the authority stating it was. That letter requests further information, but allows only until 21/11/07 for it to be provided.

The second overpayment decision is dated 21/11/07 and adds a further £519.24 to the overpayment - ie the £86.54 paid for the period 20/8/07 onward. This is on the basis of JSA ending and no evidence of income having been provided. Whilst the first overpayment decision is clearly nonsense, the authority will no doubt say that the effect of the second overpayment decision is to make the same amount recoverable for the same period - but on the later grounds.

I will have no trouble at all appealing the o/ps - there's a miriad of grounds. However, client has been invited to submit a new claim - and whilst I've advised her to do that, it will be far easier (particularly with this authority) to challenge the termination of the claim than it will be to get them to agree to backdating. And I'm not sure there's a particulary robust "good cause" argument should I need to take a backdate appeal to tribunal....

So it's really that issue in the opening post I need to focus on....

Actually, reading the above back, I've realised there's a potential additional problem....

The overpayment caused by the rent officer determination: either there is no overpayment at all because the rent officer's determination was that the full rent is payable or (the likeliest scenario, unfortunately) the authority's awarding decisions of 30/8/07 mistook the rent officer's determination. In the latter case, as the authority does not inform claimants of rent officer determinations, so long as my clienty has no on-going HB entitlement (and isn't therefore caught by reg 93 (3) of the 1987 general regs) we can argue official error and that my client could not reasonably have realised she was being overpaid should they attempt recovery.

But she will have an on-going entitlement.

However, reg 93 (3) provides for the recovery of an overpayment of rent allowance paid on account "where on the basis of the subsequent determination the amount of rent allowance differs...". I'd argue the use of the phrase "the subsequent determination" as opposed to "a subsequent determination" should prevent recovery. The subsequent determination was that the full £184.62 was payable. That determination could be replaced on revision or supersession by a new determination, but it's only "the" subsequent decision that allows recovery.

Alternatively, and perhaps more simply, we could argue that para (3) only allows recovery of an overpayment caused by a payment on account made under para (1). In this case, the overpayment wasn't so caused - the interim/payment on account decision awarded only £80.00 and it was "the subsequent determination" that caused the overpayment. Reg 100 applies.

Update - client has produced decision dated 26/10/07 revising (downward) the previous awarding decisions of 21/8/07 and 30/8/07.

I don't think this changes anything.

(There's two sorts of sad on these boards - posting at 10 o'clock at night or at the weekend and holding a conversation with yourself. Anyone else fancy a crack at this? )

sadly, i think the second overpayment'termination decision is bollocks too. : )

her award didn't have to end when JSA ended, because she didn't start work or increase her hours or pay (reg 77) so all they're really saying is no evidence of her income provided...they know that she has been paid IS from 26/9/07, and she provided the information requested on 22/10/07 within 1 month. if they later gave a further evidence requirement, they have to allow her 1 month (or longer)from the date it was required, in which to provide it. i don't think they could successfully argue otherwise - they are expected to be reasonable!

guessing they are focussing on what she lived on during the 5 weeks or so between payments of JSA and IS...i don't really see why they are making such heavy weather of it...she came off JSA on 16/8 and claimed IS on 17/8...ok... they didn't pay her until 26/9 but because of lack of med ev not income... gaps between switched claims are not uncommon - there was no gap in this case... it's amazing how often authorities state 'no evidence' of income when they mean no proof of nil income, ignoring a statement of nil income or whatever, which is, of course, evidence...or require proof of nil income, which is impossible to provide...it beats me why they didn't check the RAT or whatever they call it these days for an IS claim when they received late notification from JSA, (or why the notifications don't give 'IS claimed' as a reason for end of JSA?)...but the decision to suspend is discretionary, and in JSA to IS cases, not very practical, i would have thought...see also HB reg 86 re evidence requirements...

the termination of her award on 21/11/07,presumably under D&A 14 appears erroneous in law...the filling of her gap, if you'll pardon the expression, by med ev, is going to mean that she has been in continuous and on-going receipt of JSA/IS...where are they going to go with this...? and the overpayment, which has lost me somewhere, sounds like official error she couldn't have known about...

Normally, I wouldn't put up a post to support a purely technical argument.

But, just how many times has the legislation failed to match the (I assume) intention? Well, it's happened again - at least I *think* it has (otherwise 90%+ of LAs were in any case getting suspensions wrong)....

In short, it appears that the LA hasn't heard of either CH/3736/2006 or CH/2995/2006. In particular, CH/2995/2006 is a nightmare for LAs. For example, @ para 28:

"....there can be no suspension under regulation 13(1) unless the claimant has failed to comply with at least one request for information."

I have not yet spoken with an LA that appears to fully understand the effect or significance of these two CDs. I think Tribunals will have a field day once reps start utilising these....

And nope, I haven't got it in for LAs - it's just time that the DWP actually produced legislation that said what it meant and meant what it said. Erm, yeah.... Right.....

Interestingly enough, I've written the above after a GOOD day... .

Regards

Kevin -

I appreciate what you're saying about "purely technical" arguments. However, there are genuinely practical reasons for challenging termination in this case (and, I suspect, others).

The authority suspends and makes its first information request on 21/10/07 due to having been notified of JSA ending from 16/8/07. It makes a further request for new information on 1/11/07. But when it terminates on 21/11/07, it purports to do so from 19/8/07!

It has been suggested to my client that she makes a new claim and that she request backdating to 19/8/07. But I have never known this authority grant backdating without resistance - and if the backdating issue were to progress as far as tribunal, they would certainly not volunteer information in respect of the actual date of termination. This would leave my client having to demonstrate "good cause" for the period 19/8/07 - 21/11/07, when this really ought not to be in dispute. Of course, this will all get sorted now that she has professional assistance - but God help the unrepresented claimant.

jj -

I can uderstand why the overpayment lost you - it lost me too, initially. Maybe if i set it out more clearly?

Client is homeless and moves into accom 7/5/07. Claims HB at the same time. Rent is £184.62 p/w.

Decision awarding payment on account 21/8/07 - £80 p/w awarded from 7/5/07. Decision complies with reg 93 (2) and notifies client of recoverability of any overpayment caused by payment on account.

Substantive decisions 30/8/07 - one gives ongoing entitlement of £184.62 p/w from 6/8/07, the other revises the 21/8/07 decision to award £184.62 from 7/5/07 to 5/8/07.

The authority does not provide claimants with rent officer determinations as a matter of course, so I can only guess that the significance of 6/8/07 is that this is the date of the RO's decision. But I'd be surprised if I'm wrong.

Two further decisions 26/10/07 revise the 30/8/07 decisions - £86.54 p/w is now awarded for 7/5/07 to 5/8/07 and form 6/8/07 on.

5/11/07 - overpayment decision making £98.08 p/w (£2059.68 total) recoverable because of RO determination. Decision assumes ongoing HB entitlement and clearly invokes provisions of reg 93 (3), though doesn't actually cite the legislation.

My view is that para (3) of reg 93 only allows for recovery of overpayments caused by payments on account made under para (1). In this case the overpayment was caused by something entirely different...

yes, i agree. the 21/8/07 decision awarding £80 pw was the payment on account under reg 93. the 30/8/07 award and revision were regular decisions, not made under reg 93 and therefore not recoverable under reg 93(3). definitely sounds like a reg 100(2) whoopsie... getting tired of benefit systems becoming revenue sources by inefficiency default...

past caring: Based on the info given, I completely understand your position in this case - I don't think we have any fundamental difference of opinion where LAs make such clangers. And, for what it's worth, I share your sentiment about unrepresented (or badly represented) claimants.