LA wont remove the Benefit Cap until informed by DWP

Hi
Apologies if this is a basic one/been discussed already (I’m not a WR worker). We have several clients with recent benefit awards which exempt them from the Benefit CAP. Our LA states they are unable to remove the cap, even after receiving evidence of the benefit award from the client, as they can only remove it once notified by the DWP. Is this right?

No it isn’t right.  Here are the relevant extracts from the HB Regs:

75A.  Unless regulation 75E or 75F applies, a benefit cap applies where the relevant authority makes a determination ...

This sets the general tone that the benefit cap is determined by the Council as part of an HB decision.

75B. —(1) A relevant authority may make determination as to whether the benefit cap applies or whether to change the amount of any reduction made in accordance with regulation 75D (reduction of housing benefit) but a relevant authority is not required to do so unless paragraph (2) applies.

(2) This paragraph applies where a relevant authority receives notification from the Secretary of State that–
(a) the benefit cap may apply;
(b) there has been a change in the amount of a welfare benefit to which a claimant is entitled; or
(c) there has been a change to the relevant amount which may affect the amount of housing benefit to which a claimant is entitled.

This means that the Council has to consider whether to apply or change the cap in response to any notification it receives from DWP.  In particular there is no requirement for the Council to apply the cap in the first place if it does not want to unless DWP has sent a notice.  It does not say the Council has to wait for DWP’s instructions, it just says they cannot turn a blind eye when DWP has notified them.

In your case the Council has enough information to establish that the claimant is exempt under Reg 75F without waiting to be told by DWP.  The Council should be making a superseding decision on the grounds that the claimant or a member of the claimant’s family has become entitled to a relevant benefit.  If the Council persists in refusing to do so there is a right to appeal to the Tribunal against the refusal to supersede.

Thank you so much for this….very helpful.

The Local Authority HB dept should have a template form + direct link to the DWP cap processing team in Belfast to resolve the issue. In my experience it is a quick process and is usually resolved in a matter of days.

To get it sorted asap, might be worth directing LA to the guidance at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/538067/g7-2016.pdf

Which states:
3. It is particularly important that in the following circumstances, LAs continue to complete the template as soon as possible to avoid claimants being capped
incorrectly:
• exemption identified not picked up by DWP

Also you could call the DWP benefit cap helpline on 0345 605 7064. The operators there can pass an individual request to the processing team to action. As above, seems to only take a few days for the remove cap notification to be received by the LA.

Thanks for this-much appreciated, will give this a try as well.

As HB Anorak has pointed out , a decision to impose the cap is appealable..

Sch 7 paragraph 6 of the Child Support Pensions and Social Security Act was not amended by S96 (6) of the 2012 Welfare Reform Act.  S96(6) only provides that:

In Schedule 2 to the Social Security Act 1998 (decisions against which no appeal lies) after paragraph 8 there   is inserted—
“Reduction on application of benefit cap
8A A decision to apply the benefit cap in accordance with regulations under section 96 of the Welfare Reform Act 2012.”

The net result of the reform is that there is no right of appeal against a UC cap but there is still a right of appeal against an HB cap