Benefit Cap appeals : Am I mad, in a coma or back in (victorian) times

I am confused about challenges to the benefit cap:

The HB guidance circular A15_13 says

“Appeal and reconsiderations
63.  The regulations do not allow for an appeal which is based solely on the application of the cap of the amount set out in the legislation.  Any appeal in respect of an award of HB where the Benefit cap has been applied will be treated in the same way as any other appeal against an award of HB.  As the LAs will be making a new HB award decision at the time of applying the cap, claimants will be able to appeal against the actual decision and the normal appeal process will be followed to assess if it is in jurisdiction or not.
64.  The cap will still apply while any appeal to an exempt benefit is outstanding.”

The response to the frequently asked questions state:
“27. Is there an appeal against being capped?
    Individuals cannot appeal against the decision to apply the benefit cap.
    If DWP is going to cap their benefit we will write to them to inform them of this.
    If they think benefit cap has been calculated incorrectly they may contact DWP to review this.”

Does anyone understand the process of review, appeal etc.?

HB - Basically, the claimant can appeal against the HB decision resulting from the application of the cap on the basis that, income, capital, rent, household composition etc is incorrect, or that the reduction in HB is not consistant with the notified amount of the cap, but not appeal against the fact that they are subject to the cap.

DWP- They can appeal against the calculation of the cap, but not against the fact that there is one.

There are two pieces of legislation that rule certain matters out of a Tribunal’s jurisdiction in HB appeals.  They are:

- para 6(2) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000 which says there is no appeal against the effect of a DWP work conditionality sanction, the Council’s war pension policy, adoption of rent officer determinations and rates of benefit provided for by law.  What all these have in common is that they are beyond the control of the person making the individual awarding decision so there isn’t really any point disputing these issues in an appeal against a single HB decision.

- the Schedule to the HB & CTB (Decisions and Appeals) Regs 2001, which prevents appeals against a range of administrative matters - method of payment, evidence requests and so on.

As far as I can see, neither of these provisions has been amended to exclude Benefit Cap appeals.  Someone remarked the other day that the benefit cap regulations are inserted in a Part of the HB Regs that was already excluded from the Tribunal’s jurisdiction under the Schedule to the 2001 Regs.  This is not correct: the benefit cap regs form Part 8A of the HB Regs and the Schedule does not refer to that Part, nor does it refer to a continuous range of Parts including Part 8A.

Interestingly, s97 of the WRA 2012 amends the corresponding part of the Social Security Act 1998 which governs appeals against DWP benefits: there is no right to appeal against a decision of the Secretary of State to apply the benefit cap so the 1998 Act is future-proof for UC roll-out.  But while the cap exists only as part of working age HB, the 1998 Act does not apply.

Some aspects of benefit cap decisions will be caught by the existing provisions in the 2000 Act and the 2001 D&A Regs: the amount of the cap is set at £500 a week by law so that cannot be appealed because of Schedule 7.6(2).  But it seems to me there is a right to appeal against any of the following:

- whether the claimant belongs to one of the many exempt groups to whom the cap will not apply
- whether the cap has been calculated correctly
- whether the superseding decision to apply, amend or stop the cap has been applied from the correct date

These are all things the Council is capable of getting wrong and there is nothing to say the claimant cannot appeal.