Could anyone clarify what happens when under verification framwork housing benefits do not process a claim because there is not enough information/evidence provided by claimant to support the claim. I understand this is not a decision which capable of being reviewed/appealed. What do you then do when client sees you several months later and its necssry to request backdate to date of orginal claim which was not processed. HB refused backdate on the grounds that you are seeking re-instatement of earlier claim which has now lapsed. Any thoughts? Assume it must be a common occurence for those LA's with verification.

As the law currently stands, Councils can legally just not make a decision on a claim that is not properly completed.

I, and many others in the business, believe that recent decisions on other benefits indicate that this practice will soon be found to be contrary to the Human Rights Act and changed. For the moment, however, the LA has acted within the law on that point.

Saying this, they can’t have it both ways. Either there was a valid claim for an earlier period, in which case they must make a decision on it and offer rights of appeal. Or, if there was no valid claim for the period (as evidence was not provided) they must make a decision on the quite separate claim for backdating and again give a right of appeal if this is refused.

On a slightly separate note, if no decision has been made on the earlier claim due to the need for further evidence the LA is able to increase the time limit for supplying this evidence. This time limit can be extended retrospectively and it would be worth you asking the LA to consider this. Even if they refuse it would strengthen your position in your appeal against the decision not to backdate

I dont think backdating here is really the issue. In CIS540/2002 it was decided that if the issue is whether or not a claim has been properly made (and that included supplying the evidence), then any decision regarding that matter is a decision that has appeal rights.

As far as retrospectively extending the time limit for providing evidence, the case to get is R v Westminster City Council ex p Berisha (1998)

I say backdaing is not the issue because if the Council has simply refused to decide a claim, that does not mean that no claim has been made, and so there is no need to make " a claim for backdating"

The other argument you may have is that VF is not the law, and the Council may be applying the VF guidelines so prescriptively that they have ended up demanding evidence that is not reasonably required

This is the position I put to DWP and have received some agreement on.

Claim made with insufficient evidence is not a properly completed claim.

When the evidence is provided (even years later)it becomes a properly completed form.

If the LA accept the reasons given for lateness (in effect they extend the time limit for provision) the claim is now complete and is made on the date the "form" wa received at the LA (subject to any other rules on determining effective date of claim.

If the LA don't accept the reasons for lateness the claim is now complete and is made on the date the further evidence was provided.

In both cases a decision is now required which would attract appeal rights.

Presumably in the first scenario no appeal would be made on the question at issue here.

In the second case an appeal might quite properly be made on the question of the effective date of claim. If the customer can show good reason as to why the info was provided late, this would not constitute "backdating" it would simply mean that the tribunal have found that the period for the provision of the information was extended.

I would appreciate any comments on this approach.

I also understand (having seen a draft circular) that the issue "will" be resolved this year by way of amending regs. However I was concerned that the draft amendments would not have the desired effect unless LA's are specifically required to take action upon receipt of the information requested, however late it might be.

One of the major problems with the VF is that LA's sometimes ask for even more evidence/information than is actually necessary to determine the claim and the claimant has already provided sufficient information/evidence.

In these cases it may be worth writing to the LA requesting a decision (and thus a right of appeal) or stating that if no decision is to be made then you will consider judicially reviewing them to seek to force them to make a decision (an order of mandamus), on grounds of unreasonable delay.

I would want to draw the distinction between the late provision of what was requested and failure to provide (at all or in part).

Commissioners have confirmed on more than one occasion that the requirements of reg 73 are exactly that. In most cases it is counter productive to refuse to provide the information requested on any ground apart from "point scoring".

Clearly there will be occasions when someone is unable to provide the info requested, any decent decision maker will take this into account BUT that might mean that no HB/CTB can be paid, the fact remains that as a benefit with entitlement conditions and evidence requirements, it is sometimes not possible to make a decision without the evidence. There are circumstances where a finding of fact cannot be made without evidence.

If however someone is able to provide but believes the requirement to be excessive or unwarrented then I'm sorry but my "sympathy" evaporates. The solution is to provide what you have been asked for, that way you get a decision that you can then appeal against should you believe that the information should not have been taken into account.

You might all be interested to know (?) that Commissioners' are still considering whether CIS/540/2002 has any relevance to HB at all. CH/4415/2002 still remains to be decided on this subject, 9currently before Commissioner Rowland).

However, a Tribunal of Commissioners' will take place in May/June to decide whether claims can be 'lapsed' (treated as withdrawn, or just not processed/decided because of a lack of information), in line with HB reg 76 (2) and when/how the LA is to make that decision, how it is to be notified to the claimant, and whether that decision is appealable at all, and if so when and how any appeal should proceed, (the cases arrising before the Tribunal are CH/2155/03, CH/3423/03, CH/3511/03 & CH/3600/03).

I have a copy of the Commissioners' listing directions if anyone would like a copy, but I am currently asking TAS to 'stay' appeals pending that Tribunal decision, and not rely on CIS/540/02.