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Are Local authorities getting non-dep deductions wrong for people in the ESA assessment phase ?

andrew at cobalt advice team
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Cobalt Welfare Benefits Advice Team Liverpool L11

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The Local authority had incorrectly applied back-dated non-dependent deductions to this client’s Housing Benefit.

The client had two non-dependants who were under 25 and who were claiming ESA at the assessment rate.  Both non-dependents were on the ESA assessment rate for a long period – well in excess of the 13 week “assessment period”. 

They were eventually assessed and moved onto the ESA main-phase – the client then became liable for two non-dependent deductions. The client reported the change of circumstances to the LA.

The Local Authority decided that the client was liable for the non-dependant deductions from the end of the 13 week “assessment” period. 

We appealed - details attached - the representative successfully argued that the regulations state that if the non-dependant transfers to main phase within the “assessment period” 13 week period then the non-dependant deduction should start at week 14 and if the transfer happens after the “assessment period” then it should only apply from the housing benefit week immediately following the decision (reg. 79 Housing Benefit Regulations 2006, further explained and applied in guidance circular HB/CTB A18/2008 circular in which Paragraph 22- 23 give examples) and the authority agreed and changed its decision.

Rachel Ealey – WR Specialist -  Cobalt Welfare Benefits team.

HB Anorak
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Benefits consultant/trainer - hbanorak.co.uk, East London

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Agreed, that’s correct.  There was originally going to be an amendment to the HB&CTB; D&A Regs to make this clearer but DWP decided that it wasn’t necessary because the Regs already delivered the policy intention.  Except of course it isn’t obvious because the odd council still does what the authority did in your case.  Sometimes more regulation aids simplicity.

SarahJBatty
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Money Adviser, Thirteen, Middlesbrough

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Brilliant post. We have similar problem with an authority in our area. But they just apply the non dep deduction as standard from 13 weeks point on the basis that that’s how long the assessment phase lasts. Except it doesn’t. And as you point out, that’s not what the law says. It says a deduction applies where the non dep has a component in there ESA.
It is complicated by the fact that ESA tell me that their system shows a claim as ‘main phase’ after 13 weeks, even if still on assessment rate and no component awarded as no assessment yet done. It matches what a certain LA tells me about a couple of cases of mine.