Hi,

Has anyone seen any Students who have not yet had their student loan (there appears to be a backlog of cases and Student loans company have not paid out to many students since September – according to BBC website)

I am wondering what can be used as proof of income to HB / CTB to make them lift a suspended claim.

(Student can claim HB as meets criteria, but depending on what loan they get the amount may not be full)


Thank you

all bank statements showing lack of income, plus printouts of the various (innumerable) news stories on the web about the fact that the student loans company has c*****ed up big time?

Sadly as student funding (with some minor exeptions like child-related grants) is treated as notional income, LA might not be interested whether the student is actually receiving it or not. Perhaps better route would be to direct the student to apply to Access to Learning Fund (ALF). ALF is a non-repayable hardship fund available to students who are not international or EU (again, some exeptions apply). It is run by universities and can help with all kinds of financial emergencies, except fees debt. Students can apply for max £3500 within one academic year.

The student union should have an advice centre (majority of SUs do) or there might be a welfare adviser at the uni who'd help the student to apply to ALF.

On a more general note: nearly all Student Unions or Guilds operate advice centres and have welfare advisers. As students-related welfare advice is now so specialised- so many areas of advice are affected and different just because a person is a FT student!- it is often worth it to check with a client if they have seen their SU welfare adviser.
There used to be assumption that SUs offer mainly academic advice but this is far from the current state of affairs.
Most advisers belong to a professional association- National Association of Student Money Advisers and are highly skilled.

Tue 09-Feb-10 11:44 AM by stainsby

Student loans may be treated as notional income, but you need to look at what the provisions actually say

HB Reg 64(1) provides:

"64.—(1) A student loan shall be treated as income."

HB Reg 64(3) provides:

"(3) A student shall be treated as possessing a student loan in respect of an academic year where–
(a) a student loan has been made to him in respect of that year; or
(b) he could acquire such a loan in respect of that year by taking reasonable steps to do so."

The point in this case is that a student loan has not been made despite the person taking all reasonable steps to acquire one.

Its more than arguable that in these cases the HB should be assessed on the basis of the income that the student actually has until such time as the the student loan is sorted

Won't the student then face an overpayment (as the student funding, once finally paid by SLC, will be "backdated" to 1st of September)? If, on the other hand, student was to apply to hardship fund (ALF) for help with housing costs- no such problem (although ALF is discretionary so there is no guarantee of the award or the amount).
In my experience LAs never agree to accept the argument that student loan has not arrived despite student's effort. But perhaps other advisers are having more luck.

Access funds may count as inome (Reg 65)

An LA cannot leave an award suspended indefinitely, there comes a point when a decision has to be made, and of course that decision will be appealable.

I would use the following from paragraph 18 of R(IS)4/02 to support the argument that the Council cannot take income that is not received into account unless there are specific deeming provisions allowing it.

18. I do take that view. That stems fundamentally from the general meaning of income within the income support legislation, in the light of the decision of the Court of Appeal in Leeves. I set this out in the following paragraphs of CIS/5479/1997 (where an overpayment of an occupational pension was being recovered by the Italian authorities by withholding the complete amount of monthly payments of the pension, possibly at the claimant's request):

"9. The starting point is that there is no general definition of "income" in the Income Support Regulations or the Social Security Contributions and Benefits Act 1992. Therefore, as was accepted by the Court of Appeal in Leeves, the term should be given its natural and ordinary meaning. I agree that the decision in Leeves has no direct application to the circumstances of the present case. The context of a student who had received a payment of grant, which was by regulations to be treated as income for the whole of a term, and who came under a certain obligation of immediate repayment after withdrawing from the course during that term, is different from that of the present case. However, there is some significance in the Court of Appeal's approach that in the ordinary meaning of the words and subject to specific provisions to the contrary, it was income which was received which counted in the Income Support Regulations. That confirms my view of the general context of the Regulations, which is that income to be taken into account is income which is actually paid to a claimant. Without going into any great detail, that is seen in the many references to "payments" of income (e.g. in regulation 29(2) on the period over which a payment is to be taken into account, regulation 31 on the date on which a payment is to be treated as paid, and the terms of regulation 42 on notional income, especially where income is due to be paid but has not been paid). There are some other provisions which are not entirely consistent with that approach, but that does not affect my view of the general context. I shall discuss regulation 40(3) specifically below.

10. It is plain that from some date prior to 5 April 1993 the claimant did not receive any actual payment of his Italian pension. However, is he to be regarded as having received payment because the amount of the pension that he would otherwise actually have received was diverted to reduce his debt to the Italian authorities for the previous overpayment? Or, to put it another way, is the reality of the situation that the claimant has been paid his Italian pension, but has expended the full amount of it on paying off the overpayment? It is usually the case that what income is spent on has no effect on the taking of the income into account as such for income support purposes. There is certainly a good deal of general force in such points, and some support in principle from cases on other areas of law, such as income tax. They could also be regarded as supported by decision CIS/212/1989. I have found this to be an extremely difficult issue, although one in which, as explained above, an oral hearing would not be likely to reduce the difficulty at all. I have eventually come down in favour of the claimant for the following reasons.

11. The first and main reason is that, although there is considerable general force in the points mentioned in paragraph 10, I conclude that the scheme of the Income Support Regulations rests on a more straightforward, and perhaps crude, approach to the receipt of income by claimants. If a claimant who has not actually received income is to be treated as having that income, that has to be achieved by a specific provision in the legislation. That is why, for instance, in addition to the regulations mentioned in paragraph 9 above, there has to be specific provision for circumstances in which payments are made to a third party in respect of a claimant or a member of the family. That does not mean that there are no controls over abuse of the system, as the provisions on notional income will be relevant, as discussed in paragraphs 14 and 15 below."

I went on to say that regulation 40(3) of the Income Support Regulations (providing in the case of British social security benefits that where there was a deduction by way of recovery the gross amount was to count as income) would have been unnecessary if the law had been against the claimant in CIS/5479/1997, and provided further support for the general scheme and context of the Regulations being as I had concluded. A new appeal tribunal was directed to consider any case put forward by the Secretary of State that the claimant was to be treated as notionally still having the income under the intentional deprivation rule"

The Commisioner also held that the general rule was supported by the Court of Appeal in Leeves and went on to hold at paragraph 20

"..It may be that Leeves dealt with different circumstances, but as stressed above, it is the general approach in Leeves which shows the structure and context of the income support scheme rather than the specific result on the facts."

I dont think LA's can ignore decisions of Commissioners, Upper Tribunals, or the Courts

you take my breath away, stainsby and not in a good way, lol
So what are you saying? How does the caselaw you have quoted help students who are waiting for SLC to process their funding to argue with LAs that this funding should not be treated as "notional income"? I am having problems interpreting the Comm's decision- but then I am not very experienced in doing that.

"If a claimant who has not actually received income is to be treated as having that income, that has to be achieved by a specific provision in the legislation." And you have quoted the specific provision in your earlier post, HB regs 64(3)

One of my colleagues commented: Hard to see how a student loan wouldn’t be taken into account in the event of a student having applied for it but not received it, when it IS taken into account when a student does not apply for it at all.

A student loan can only be taken into account as notional income either if the loan is actaully made or the could acquire a loan by taking reasonable steps to do so. (Reg 64(3))

That provision does not extend to a student who has in fact taken all those reasonable steps but still the loan has not been made. In other words Reg 64(3) is too limited to apply to a case such as this, because the person still cant acquire the loan.

Put very simply, the Commisioners and the Courts have held that income means periodical payments received, and if those payments are not received, they cannot form part of the persons alimony and are therefore not income.

There are provisiosn in the Regulations that can create a legal fiction and may deem a person to have income that he actually does not have. Reg 64(3) is one such provision in that a student is deeemed to have acquired a loan if he does not apply for one but could get one if he did apply for one.

This case is different, the person has applied for one but for reasons beyond his control he still does not have one. You could see this as analogous to a parent who has an assessment of child support, but the absent parent does not pay and the CSA has not enforced the assesment. The assessed child support cannnot be considered to be income, it has simply not been paid.

There have been other Commissioners decisisons in a similar vein, eg in CIS/745/1999, it was held that the part of a claimants occupational pension that had been attached by a court to be paid over to his ex wife was not part of the claimants income. The Commisioner held at paragaph 27

"27. That view is, I think, supported by the judgment in the Leeves case. Although that judgement dealt with a factual situation which was different from the facts of this case and which gave rise to a different legal relationship between the claimant and the provider of the payment, it applies one of the cardinal rules of statutory interpretation which is that ordinary words are given their ordinary meaning. Consequently in the General Regulations if there is no statutory provision to the contrary "income" as used in the General Regulations can include only what can be said to be the claimant's income in the ordinary sense of that word. In my view in its ordinary sense "income" means money paid regularly to the recipient or to his order but not money which is paid and which he cannot prevent from being paid directly to a third party instead of to him."

I agree that at some point, the LA may well have to re-asses HB to take into account the loan, and given that Reg 64(1) deems that a loan shall be treated as income (not capital), there may well be an overpayment. That overpayment can only be recovered at £9.75 per week, and so the student will still benefit.
"

Thank you very much for your explanation- I will certainly take this route next time when challenging LA.