Tue 13-Jan-09 12:37 PM by RayGuselli

Hi

I am a Local Councillor and a caring landlord.

The following issue has been asked of me by numerous people and I do not know the answer....hoping for some help please.

The rent Oficer applies different figures for LRR and LHA; with LHA being significantly higher than LRR.

This seems to suggest that those claimants for whom HB will now be paid direct to them receive a greater entitlement of HB than those who remain under the LRR scheme.

It means for example that a tenant under LRR may have received £70 per weeek for a property, wheras upon vacating, the incoming tenant will receive, for example £90.

Does this mean that because the RO provides higher figures for LHA than LRR, that this is good grounds for an appeal where a tenant is under the old LRR scheme and not receiving full entitlement because of a RO assessment under the LRR provisions?

Surely there should be some consistency in RO figures for LHA and LRR.....or am I misunderstanding the position please?

Any help would be appreciated.

Best wishes

Ray Guselli

There are differences between the way LRR and LHA are calculated. The populations are not exactly the same and use of the Median to calculate LHA is unusual.

The fact that there is a difference between the LRR and the LHA for a property is not in itself grounds for appeal.

Where a claimant would be better off under LHA it is possible for them to withdraw the claim and then make a new one under LHA. To achieve this, if the claimant is not a member of a couple and can’t therefore “swap” claimant and partner, they may have to have a weeks gap in their benefit depending upon how the LA concerned views the regs.

If you've tenants affected by this Ray refer them to us - all welcome!!!

Nicky

Much appreciate the feedback and help...also nice to hear from you Nicky...I will be in touch.

With reference to the post by JMembery from Ayulesbury; does this mean that where for example, a claim is made by Mr Jones for Mr and Mrs Jones, if the next claim is submitted by Mrs Jones, for Mr and Mrs Jones, as it is a new claim, it is now caught by the new provisions under LHA scheme please?

That seems an almost too simple way to move from one scheme to another which may be more beneficial?

Many thanks

Ray

Yes that's right. The claimant asks to withdraw his claim and on the same day the partner makes a new claim. This would result in the partners claim being processed under LHA.

Jeff

Jeff

Many many thanks.....so easy!!!!!!

Kind regards

Ray

First submission made as suggested where husband cancels claim and wife makes new application. Although eventually awarded, it was done reluctantly. Originally told cannot do this and there would have to be a gap in entitlement of 1 week, but after much discussion conceded to allow.

Second claim now submitted for another tenant who was asked "why do you want to do this"!!!! Total reluctance to invoke the change and claimant sent away with claim and the message that you will lose a week's Housing benefit.

Claimant has now been told her husband's claim will be cancelled from 23rd August (she went back to the Local Authority to re-submit the claim having been sent away) but will not be re-opened until 31st August 2009, creating a gap in entitlement of one week.

This apears yet again to me to be an attempt to dissuade this practice....but is the LA entieled to do this and/or is it within the HBR please?

Thank you

Ray

No, the LA is not entitled to refuse a claim and send partner away, nor, in the case of claimant and partner effectivly "swapping" who is claimant claim are they entitled to insists on a weeks gap.

Mon 07-Sep-09 07:37 PM by RayGuselli

Many thanks for your assistance........

I did not think the LA was correct but I am not an expert.

I wonder if I could ask you to clarify the Regualtion which might cover this please.

Your guidance is much apreciated.

Kind regards

Ray

Hi,

Sorry to trouble members here but it would be much appreciated if I could have an update regarding my reply above, as I would .like to refer this back to our benefits administration to review. Some qualification of my view i.e the appropriate Reg would he helpful.

Apologies for typing errors in previous message....too keen to post back!!!

This is how it should have read and I hope you can help.

Many thanks

Ray

I did not think the LA was correct but I am not an expert.

I wonder if I could ask you to clarify the Regulation which might cover this please.

Your guidance is much appreciated.

Kind regards

Ray

In the first instance i'd ask them to review it and ask them what Reg they are using to base their decision on.

Once you have that you can then build your case.

Nicky

Ray:

If your client(s) takes the route of clmt to ptnr / ptnr to clmt, there are two distinct and separate matters.

1) the ending of the existing claim by the current clmt. A clmt is lawfully entitled to end his/her HB/CTB prospectively just by asking it to end.

Next:

2) the current partner who now wishes to be the clmt simply submits a claim. A LA must provide a claim form free of charge - HBR 83(2).

3) once the claim is submitted, the LA is required to make a decision on a claim.

4) a LA CANNOT refuse to accept a claim.


If you get any resistence to the above approach, much of the above advice is sound. In short:

- your client(s) should make a formal complaint, making it clear it will be taken to the Ombudsman if necessary.

- either within the formal complain, or by separate correspondence, your client(s) should set out very simply what they are seeking and, should the LA continue to refuse / drag its heels, that same correspndence should ask the LA to explain the legal basis of its views / actions - insist on legislation / legal authorities and make it clear circulars are of no legal force or effect.

One other thing: even if you have your client(s) full authority to make enquiries, even act, on their behalf, I STRONGLY advise all correspondence is signed by your client(s). This prevents any possiblity of the LA refusing to accept requests for revisions and/or appeals etc.

Wed 09-Sep-09 12:48 PM by trishc

Just to expand a tiny bit on the above responses:
Circular G10/2008:
"Whilst there is no statutory mechanism expressly permitting a customer to withdraw their claim after it has been decided, there is a body of case law which holds that a customer cannot be forced to continue receiving benefit when they have indicated that they no longer wish to do so.
The relevant case law that we have considered is:
• CJSA/1332/2001
• CDLA/1589/2005
• CJSA/3979/1999
Commissioners have held that it is a fundamental condition of an award of benefit that the claimant is prepared to receive payments. In other words, if a person indicates unequivocally and freely that they no longer wish to receive benefit, entitlement should cease from that point on."


That being accepted, as JMembery says the claimant should withdraw their claim, and at the same time, their partner should make a new claim, which by virtue of being new, will fall straight under LHA rules without the need for a weeks gap. Bingo. No such easy get round for the single claimant though.

Co-incidentally, the ESA guidance is full of instances where a “better-buy” calculation should be carried out for CTB/HB, and if the family would be better off if the claimant and partner swapped roles, then this should happen. Without the need for a weeks gap or, apparently, a new claim…but I’m not an assessor and haven’t looked into this bit. But it reinforces the claimant/partner swap as a legitimate method of maximising benefit entitlement.

As Kevin says, make sure the customers sign everything.

My thanks to all for the help and guidance.

It really is much appreciated and I will follow the advice given and see what happens.

Very best wishes

Ray

My thanks to all for your help, the problem has now been resolved.

I visited HB Department and asked under what Reg the claimant had to lose a week as confirmed by HB in writing....they confirmed there was none but were acting on the guidance of a DWP circular.

I was told however that there was a way around this to avoid a loss of benefit for one week....the claimants simply needed to swap who was making the claim......I explained that was precisely what "this" claim was!!!!

A few days later a new determiantion arrived with payment at the new LHA rate without a gap in entitlement.

So, may I thank all for your help and guidance which was very much appreciated.

Kind regards

Ray