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‘passported’ HB - UtT decision? LA must make own decision not rely on DWP decision.
Help please.
Trying to identify any Comm/UtT decisons that state relevant authority must make its own decision and cannot simply rely on a decision of DWP on the passporting benefit on the same question (such as alleged living together or R2R) - ” we stopped HB because DWP stopped IS”. That they must make a seperate submission to tribunal and cannot simply state they will follow the FtT decision on the ‘linked’ DWP benefit appeal(s).
R(H) 9/04 is quite a good one.
This involved an ex-married couple. Since they divorced the woman had bought another house. The man was down on his luck and she let him stay there from time to time, eventually charging him rent as a lodger. The Council rejected his HB claim on the basis they had been a couple in that house - the reason was that they had claimed couple rate JSA(ib). The claimant said they had not been a couple in the proper social security sense: she had described him as her partner because there wasn’t a more accurate term in the list of options. The Council said it didn’t matter: the eatlier JSA claim was binding on them - if DWP had taken the view that they were a couple the Council had to follow that.
The Commissioner says the Council is wrong. Sometimes the Council is bound by a DWP decision because the HB Regs are written that way, for example:
- if the claimant is on a DWP means tested benefit, that normally means the Council has to award max HB even if they would have been inclined to say the claimant had some income/capital, or a partner with income/capital
- a formal legal status determined by DWP is sometimes referred to in the HB Regs. For example limited capability for work: this is decided as part of an ESA claim and is not a question of fact for the Council to establish on its own initiative (see CH/4424/2004)
Otherwise, DWP benefits and HB require different decision makers in different jurisdictions to make their own decisions:
“Miss Webb [Counsel for the LA] pointed to the undesirability of different decision makers making different decisions on the same issue. She is right to say that is not a desirable state of affairs. However, it is an inevitable possibility unless provision is made to make one decision maker’s decision binding on the other decision maker. That could be done, but has not been done as regards relationship issues arising under Reg 9…”
These cases often arise from fraud investigations where DWP investigators have taken the lead and are sitting on the evidence - exchange of info between HB decision makers and DWP fraud staff is patchy. Even though they haven’t got a lot to rely on, Councils feel awkward ignoring DWP and so they tend to follow DWP’s decision in the first instance. As an LA rep in appeal cases I have sometimes had to ask the Tribunal to direct DWP to provide its evidence, otherwise the LA does not have much of a case.
Thank you!
Since the original post I have had a very ‘entertaining’ disscusion with the LA about why they think they are not required to respond to the appeal but will simply ‘follow’ the FtT decision in the ‘linked’ IS appeal! It is an alleged L/T case.
Others interested in this issue may also find the following useful.
AM v Chelmsford [2013] UKUT 245 (AAC) - CH/3343/2012 - an alleged L/T case - instructive on the powers of LA’s and tribunals.
CH/4014/2007 deals with a narrower technical point but may also be useful?