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reg 83(4)(a) HB Regs following official error revision of irJSA refusal (HRT) decision from 2018 (+JSA online claim form)
Dear all
As indicated by the title this is quite a convoluted one…
Client has now been awarded irJSA by FTT from 2018-19 following official error appeal as she had a permanent right to reside (though FTT decision not implemented yet)
She is adamant that (and my reading of CPAG 2017/18 version and HB & CTR Legislation seems to support this in principle) part of the online JSA form she completed in April 2018 provided for a HB claim to be made, and she completed this.
JSA was never awarded at the time, there is no evidence of independent written communication to the council (I’m instructed that, communicating in person at the civic centre, she was advised that as her JSA had been refused, there was no entitlement to HB (reading between the lines it would seem that if DWP said no R2R for JSA purposes then no real prospect of council coming to a different view for HB). So she doesn’t seem to have directly sent anything to the council amounting to a claim within the meaning of Novitskaya.
On my reading of reg 83(4)(a) HB that would be a claim in writing ‘sent or delivered to the appropriate DWP office where the claimant or his partner is also claiming [...] a jobseeker’s allowance [...]’, as she was claiming JSA, albeit that she was not in receipt of it. The commentary to reg 83 seems to assume the possibility of making a HB claim on a JSA form: eg ‘This requirement [to forward to council within 2 working days] does not apply if the HB claim is made on the same form as that for [...] JSA’.
1. Is anybody able to help with whether it’s possible to go back and convert that form into HB entitlement for 2018-19? My thoughts are either pre-action to DWP on ongoing failure to refer HB to the LA to make a decision on HB entitlement, and/or pre-action to council for failure to so decide.
2. Sadly I wasn’t doing welfare rights pre-UC full service - was refusal of means-tested benefits on HRT grounds generally prejudicing claimants’ housing costs entitlement through HB? As I can see why no independent HB claims to the LA might be made in these scenarios.
3. Does anybody have access to the content of the JSA claim form from that time (I appreciate this is posted in the housing section)? Trying to get hold of the original through a SAR but much appears to have been deleted (I’m sure it would be provided if it was an overpayment/fraud case!), I’m interested to see what would actually have been asked of claimants.
Many thanks in advance! Thanks especially if you’ve managed to read to the end…
Alex
The online claim form mirrored the paper claim form. There were indeed questions about whether you wished to claim HB (and if so, the address of the LA etc. was requested in the form also).
The procedure, at least with paper forms (and I am sure this would have been the case with the online form also) was that the paper JSA form was not actually sent to the LA; rather, DWP extracted the relevant info and then sent that (electronically) to the LA. The LA, in turn, would then issue its own HB claim form - or direct the claimant to its online claim form. A failure to complete the LA’s own form would allow an LA to refuse benefit on the basis that required evidence and information had not been provided.
However, where HB has been claimed on the JSA form, a HB claim has been made and has to be decided. If a claim was made and the LA has not decided it, it is still under a legal obligation to do so. That is the route you’re going down.
I’d be looking at a separate SAR/request for the HB file directed to the LA - that could well throw up what your are looking for. As part of that request I’d specifically ask for data/records from the LA’s ATLAS and CIS notification records (these show what info has been sent to the LA by the DWP) as these may well provide evidence of whether the JSA info was received by the LA.
You’re not looking at a time limit, so I’d get everything from both SARs before making any formal application to the LA that it determine the claim.
I’d not want to offer an opinion at this stage as to whether an arguable case could be made for an LA having failed to determine a claim in circumstances where the issue is whether, on the balance of probabilities, a claim was actually made at all (i.e. where there’s no paper or electronic evidence to indicate a claim was made). Your client’s statements are pretty convincing - it certainly was possible to claim HB via a JSA claim and the statement she visited the LA’s office and was told she had no HB entitlement because JSA has been refused on RtR grounds may well have happened (I worked in an LA’s welfare rights team up to 2017 and we had a lot of direct interactions with HB - what your client has said would not surprise me). But I’ll leave it to wiser heads about whether such an argument could get off the ground - in any event, you don’t need to worry about that until you have all the records from DWP and the LA.
Thank you very much - especially for the insider info re what specifically to ask for from the LA! Some more digging to be done.
I’d also consider whether 83(5)(d) might apply:
(d)except where sub-paragraph (a), (b) or (c) is satisfied, in a case where a properly completed claim is received in a designated office, an authorised office or an appropriate DWP office within one month, or such longer period as the relevant authority considers reasonable, of the date on which the claim form was issued following the claimant first notifying, by whatever means, a designated office, an authorised office or an appropriate DWP office of his intention of making a claim, the date of first notification; and
If she can argue that she notified the LA of her intention to claim, they haven’t provided a claim form yet then can she argue that the one month time limit hasn’t even started?
I’d also consider whether 83(5)(d) might apply:
(d)except where sub-paragraph (a), (b) or (c) is satisfied, in a case where a properly completed claim is received in a designated office, an authorised office or an appropriate DWP office within one month, or such longer period as the relevant authority considers reasonable, of the date on which the claim form was issued following the claimant first notifying, by whatever means, a designated office, an authorised office or an appropriate DWP office of his intention of making a claim, the date of first notification; and
If she can argue that she notified the LA of her intention to claim, they haven’t provided a claim form yet then can she argue that the one month time limit hasn’t even started?
#
Thanks very much for the response. I think my issue is that is that 83(5)(d) just fixes a date of claim doesn’t it? So I fear that just brings it back to evidencing the original claim/notification of intention to make the claim. The DWP seem to have lost the original claim and are making her complete a new one so this may help a little down the line!
Thanks again
A