I have just received a verbal response from the housing Benefit Department at St helens MBC , About a tenant of ours who is on PC guranteed credit and her daughter who was the NON DEP which moved out of the property in December 2003, hiowever she only informed the housing benefit section in march 2004, when she was contacted by the rent arrears officer about non payment of the Non Dep . this is when it was determined that her daughter had moved out a written statement was sent to the HB DEPT but they will only backdate to April the non dep moving out there reply over the telephone was because the tenant hadnt notified them of the CIC within 1 month of it occuring they wont backdate . our tenant was led to believe tha ther daughte rhad tolf the HB DEPT of he moving out .

can this be right not to backdate


Colin Hannon

The Council are enforcing Reg 8 of the HB/CTB (D&A) Regs viz:

(2) Subject to paragraphs (3) and (6), where the superseding decision is made on the grounds that there has been, or it is anticipated that there will be, a change of circumstances, the superseding decision shall take effect on the date on which the change of circumstances is to take effect in accordance with regulations 68, 68A or
68B of the Housing Benefit Regulations or, as the case may be, regulations 59, 59A or 59B of the Council Tax Benefit Regulations

(3) For the purposes of determining the date on which a superseding decision is to take effect in accordance with paragraph (2), in a case where–
(a) the change of circumstances is a change of circumstances that is required b regulations to be notified, other than any change of circumstances to which regulation 68A Eor 68B of the Housing Benefit Regulations or regulation 59A Eor 59B of the Council Tax Benefit Regulations applies; and
(b) that change of circumstances is notified more than one month after it occurs, or such longer period as may be allowed under regulation 9; and
(c) the superseding decision is advantageous to the claimant,
the date of notification of the change of circumstances shall be treated as the date on which the change of circumstances occurred.


The Relvant parts of Reg 9 of the HB/CTB (D&A) Regs are as follows:

9.—(1) For the purposes of making a decision under paragraph 4 of Schedule 7 to the Act a longer period of time may be allowed for the notification of a change of circumstances in so far as it affects the effective date of the change where the conditions specified in the following provisions of this regulation are satisfied.

(2) An application for the purposes of paragraph (1) shall–
(a) include particulars of the change of circumstances and the reasons for the failure to notify the change of circumstances on an earlier date; and
(b) be made within 13 months of the date on which the change occurred.

(3) An application for the purposes of paragraph (1) shall not be granted unless the appropriate relevant authority is satisfied that–
(a) it is reasonable to grant the application;
(b) the change of circumstances notified by the applicant is relevant to the decision which is to be superseded; and
(c) special circumstances are relevant and as a result of those special circumstances it was not practicable for the applicant to notify the change of circumstances within one month of the change occurring.

(4) In determining whether it is reasonable to grant the application, the appropriate relevant authority shall have regard to the principle that the greater the amount of time that has elapsed between the date one month after the change of circumstances occurred and the date the application for a superseding decision is made, the more compelling should be the special circumstances on which the application is based.

(5) In determining whether it is reasonable to grant an application, no account shall be taken of the following–
(a) that the applicant was unaware of, or misunderstood, the law applicable to his case (including ignorance or misunderstanding of the time limits imposed by these Regulations); or
(b) that a Commissioner or a court has taken a different view of the law from that previously understood and applied.

The HB Regs require notification to be in writing, but I think you should be able to argue that speical circumstances apply in that your client belived, albeit erroneously, that the Council had been notified at the time.

The most important part of Stainsby's post is:...

"In determining whether it is reasonable to grant the application, the appropriate relevant authority shall have regard to the principle that the greater the amount of time that has elapsed between the date one month after the change of circumstances occurred and the date the application for a superseding decision is made, the more compelling should be the special circumstances on which the application is based".

What this means is that if your client told the local authority of the change one day before the total 13 month period expires, (you have one month to tell the LA, and a further 12 months to tell the local authority about the late change), you should have been in a coma, or clinically dead etc. However, by the same token if the LA is notified of the change one day late, then your client could have been washing his/her hair, going shopping etc. This nuance in the regulations is often 'missed' (not really understood), by day-to-day HB/CTB decision makers in LA's, (because there is insufficient/No training, not because of the staff themselves).

You & your client are in the 'sticky' three to nine months' part of the reg, which is harder to argue than just being a few weeks late, (but easier than the post 9 months period, which is very very difficult to argue). However, that is where I think you need to concentrate your argument, that it was not reasonable for your client to either have been aware of the regs, (the LA's decision letters and any publicity will be crucial to you being successful, esp. if this clearly increases the chances of your client not knowing of the one month date of change rule), and/or that his/he circumstances were such that it was not reasonable for him/her to have told the LA at the appropriate time...

Be careful here though, you have used the expression that the LA will not ‘backdate’ the change. I would advise against using that particular word. Whilst your usage explains what you mean., the word ‘backdate’ has separate legal meaning, that has the potential to confuse the mindset of the decision-maker. The correct legal expression will be a refusal to supersede/revise, (from what you have said, this looks like a refusal to supersede rather than revise, in line with Stainsby’s posting of the HB/CTB (D&A) regs).

Steer well clear of any argument about your cleint being unaware of the rules, and concentrate on the fact that she believed that the Council had already been notified.

See Reg 9(5)of the D&A Regs:

"no account shall be taken of the following–
(a) that the applicant was unaware of, or misunderstood, the law applicable to his case (including ignorance or misunderstanding of the time limits imposed by these Regulations); "

"

OKay, this is where it gets complicated...

I did not advocate that the LA had made an error of law, and to use that as a way around things, mine argument is more one of reasonableness, which can be used as an argument to say that reg 9 (4) has been met, reg 9 (5) to which stainsby refers, is but a small exclusion from the provisions of reg 9 (4), as it says in reaching the decisions under reg 9 (4) no account shall be taken of the 'law', it does not say that no account should be taken as to the unreasonablesness of the local authority's actions, nor of it's responsibilities to take it's powers under reg 9 (4) seriously.

I stick by my advice, purely because the reg that Stainsby notes, should not be used in isolation, it excludes some parts of 'knowledge' that the claimant might have from consideration of reg 9 (4).

The fact that a the LA's notifications are deficient might (and I do not say will), add to the special circumstances previously discussed, and could well give rise to a finding of fact under the 'the more time that has passed, the more important the reason for the late delay should have been' when used in conjunction with whatever arguments that you have for the late delay.

My post should not be taken as a 'do this and you will be fine', but as an addition to what you already have, a small note... so as per Stainsby, do not argue misinterpretation of law, but a deficiency in the LA's publicity and possibly reasoning, try and shift the burden of proof still further, (actually the burden of proof already rests with the LA by the sound of things, make them defend their decision).

You refer to an arrears visit in your original posting. I am assuming that the arrears accrued for non payment of the non dep deduction (because your clients circs alone are such that no rent would be payable).

If the non payment coincides with the date upon which the daughter left (or thereabouts)I would accept that your clients belief that the dept had already been informed could be supported and constituted a good reason for not telling them again.

In order to be successful I would expect something to have happened, which caused your customer to act or not act as they did, at the point that the daughter left, otherwise the spirit of the policy intention is lost.

The spirit is that the late notification of a beneficial change indicates that the customer didn't "need" the benefit at the time, otherwise they would have been minded to do something. If there is another reason as to why there is late notification, that reason might mean that the requirement to notify on time can be waived on that occasion.

Could be a long shot, but there is one other possibility you could consider. If, when she moved out, the non dependant herself claimed council benefits or was included as a non dep on somebody else's claim, you could claim the LA knew that she could no longer have been a non-dep with your client.