Right to reside/HB/ESA issues

Hi everyone, I’ve picked up this case yesterday and was wondering if I could pick some brains on how best to proceed as it is a bit of a complicated one. Concerns ESA and HB but have put it in this section as the pressing issue is that client is getting perilously close to being evicted - L/L have already got possession order and are now threatening to apply for eviction warrant. Client has been advised to see housing advice whilst I look to see what can be done.

Client claimed JSA in October 2015. As part of this claim her details were passed over to LA in order to start a claim for HB. Client was paid JSA as a EU workseeker. Housing Benefit wrote to her requesting further info about her rent (which she provided) and telling her that she needed to update them of any change to her JSA award. It seems for a short time HB was in payment.

Client could not cope on JSA and claimed ESA in December 2015. This claim was turned down in Jan 2016 as she failed the HRT. She appealed the decision. She attended the HB office and was told that she would need to provide confirmation of how she was supporting herself. In the meantime her HB was suspended. A couple of weeks later client responds bringing in a letter from her mother confirming that she was supporting her as her benefits had stopped. However by this point HB have cottoned on to the HRT issue and tell her that they cannot pay her as a nil-income claim. The case appears to have been passed to be double checked before being stopped. On 18/04/16 her HB was cancelled with the following explanation given:

“I have superseded your Council Tax Support and your Housing Benefit from 14 December 2015
as your JSA ended 10.12.15.

As you are not currently in work or claiming a qualifying benefit such as Income Support
or Employment Support Allowance, you do not qualify for Council Tax Support and / or your
Housing Benefit as you have not retained your worker status.

If your circumstances change and you start working or claiming as Income Support or
Employment Support Allowance, please contact within a calendar month of this letter for
this decision to be looked at again.”

Whilst this is all going on client missed a medical assessment for her ESA on 20/02/16. She was a bit vague about this in terms of good cause - I’m not sure if she knew about the appointment but didn’t attend as she didn’t see the point as she had been told that she was not entitled or didn’t know at all about it.

On 08/07/16 client makes a revision request for her HB stating “I’ve lived her over 19 years and I’ve also appealed the DWP decision and am getting help from my mother”. She enclosed a letter drafted by another advice agency requesting a reconsideration of the ESA RtR decision.

On 31/08/16 client won her Right To Reside appeal for ESA. At this point she did not inform HB

On 12/09/16 client was sent a letter refusing her revision request as “You have failed HRT and you had no income to enable us to action your Housing Benefit” . Unfortunately this means that her 13 month extended appeal period expired yesterday. She sends the Trib decision in on 19/09/16. Housing Benefit write back to her acknowledging the decision but stating that her HB cannot be reinstated until she provides proof that the DWP have acted on the Tribunal Decision and put her ESA into payment.

Unfortunately the missed medical means that client’s ESA claim is closed. She is only paid for the brief period between the start of her claim and the date she missed her medical. Housing Benefit refuse to put the HB claim back into payment. No correspondence was sent to client but the internal notes at this point seem to be saying that she is not entitled as she had not provided proof of her income for the whole period

At some point (I am waiting for callback from DWP to confirm dates) client calls ESA to find out why she is not being paid despite winning her tribunal. She says that she was told that she needed to make a new claim. She followed this advice and…failed the HRT again. To rub salt into the wounds, this time she has attended her medical and has been placed in the Support Group. Her ESA claim is currently open but credits-only.

Last month client made a new claim for Housing Benefit. DWP sent a notification confirming that client’s ESA claim was being maintained clerically and that she was currently being paid 00.00pw, without any further details about the 2nd HRT failure. The Housing Benefit department seem to have accepted this and are currently paying client HB. They do not seem to be aware that client has failed HRT again.

So…
With the ESA it seems to me that client is out of time to try and run a good cause argument re. her missed medical. So on this I think I can only pursue the HRT, refer DWP back to the previous Tribunal decision and ask them to identify what they think has changed (client states nothing has changed - the tribunal awarded her RtR as a dependent family member of a EEA worker).

The HB is the more complicated one. As above client seems to be out of time to do ‘normal’ appeals against the decisions to stop her HB. Essentially as far as I am concerned the HB team changed their minds about what they needed once the RtR tribunal decision was received - moving the goalposts from it being a RtR issue to it being a proof of income issue. But the problem is that by this point client’s claim was cancelled. So it could be argued that further requests for information would only be required had the client made a new claim. Is there anything that can be done with the fact that when the HB review decision was made, the ESA tribunal decision had already been made?

Sorry this is so long! I was just hoping somebody would be able to come up with a bright idea that could solve things as otherwise the best we can do is stop the arrears getting bigger and hope that HA does not follow through on applying for an eviction warrant.

THANKS!!!

For clarity - client failed the Right to Reside element of the Habitual Residency Test (I had run out of characters)!

One idea that has come to me…

As above Housing Benefit wrote to client on 22/09/17 acknowledging that they had received the Tribunal Decision and that HB could be reinstated if client provided confirmation that the DWP had actually implemented it. Could you possibly argue that in effect this was a new decision, with appeal rights, resolving the RtR issue but still refusing Housing Benefit on the grounds that there was insufficient evidence of income/passport benefit? If so we are still just about in time to challenge.

Have you seen the application for revision of 8 July 2016?  Is there any possibility it could be interpreted as an appeal to the Tribunal?  In HB there is no mandatory recon stage: if the Council declines to revise its decision on receipt of an appeal, it must submit the appeal to the Tribunal.  There is no requirement for the claimant to say anything further.  Councils often try to make it a two-stage process by saying something like “OK, so you appealed on 8 July.  We have had another look, but we are convinced we have got it right.  Now are you sure you really want to appeal?  If you don’t say yes, we will assume not”.  If that is what happened here, your client still has an appeal outstanding against the decision to end her HB.

As to whether the appeal will succeed, HRT seems to be the main issue.  Apart from any period where she was “passported” through the HB HRT by virtue of ESA(ir), the Council will have to take its own view.  Mere presence in the UK for 20 years does not guarantee that she has a permanent right to reside

HB Anorak - 16 October 2017 08:09 AM

Have you seen the application for revision of 8 July 2016?  Is there any possibility it could be interpreted as an appeal to the Tribunal?  In HB there is no mandatory recon stage: if the Council declines to revise its decision on receipt of an appeal, it must submit the appeal to the Tribunal.  There is no requirement for the claimant to say anything further.  Councils often try to make it a two-stage process by saying something like “OK, so you appealed on 8 July.  We have had another look, but we are convinced we have got it right.  Now are you sure you really want to appeal?  If you don’t say yes, we will assume not”.  If that is what happened here, your client still has an appeal outstanding against the decision to end her HB.

As to whether the appeal will succeed, HRT seems to be the main issue.  Apart from any period where she was “passported” through the HB HRT by virtue of ESA(ir), the Council will have to take its own view.  Mere presence in the UK for 20 years does not guarantee that she has a permanent right to reside

Thanks for the response HBA. This will be a bit briefer than I wanted - I tried posting a slightly longer response but the page had timed out and I lost everything :’(

The application for revision is in the form of a cover sheet for documents dropped at a council office - begins “please can you revise my claim”. No mention of appeal or the tribunal service. Am I understanding you correctly in that you are highlighting an issue where claimant makes what is clearly an appeal and LA reconsiders the decision, does not change it, and then re-offers appeal rights to claimant rather than pass the matter on to TS? I don’t think in this case I can really argue that client’s request was anything other than a revision request.

The more positive news is from ESA - they are willing to look at changing the HRT decision (provided client can provide sufficient extra evidence re. her mum’s worker status and her dependence on her). The second ESA claim actually started on the 29/08/16 - i.e. before the revision decision. If we can get the ESA reinstated would it be possible to request an any time revision of the HB on the basis of an official error by the DWP?

Sorry for the delay getting back to you Samw.

Am I understanding you correctly in that you are highlighting an issue where claimant makes what is clearly an appeal and LA reconsiders the decision, does not change it, and then re-offers appeal rights to claimant rather than pass the matter on to TS?

Yes, exactly

I don’t think in this case I can really argue that client’s request was anything other than a revision request

OK, lets try Plan B then.

It appears the decision ending HB had effect from more or less the same date as the decision refusing ESA - around December 2015.  Since then, the ESA decision has been overturned on appeal so that the claimant is entitled to ESA(ir) for a few weeks up to Feb 2016.  If the effective date of the ESA entitlement precedes or coincides with the date from which HB ended, that provides the Council with an “any time” ground for revision:

- HB&CTB; D&A Reg 4(7B) and (7C) cover retrospective awards and favourable revisions of DWP benefits.  There is a slight lacuna in those Regs which means they do not cater precisely for the events in your client’s case, but I think the intention is that they cover all events of this type
- But in any case Reg 4(2)(a) probably applies (official error).  The UT has held that where a decision is changed on appeal that means as a matter of law that the original was made in error - even if the Tribunal has done no more than take a more generous view about agreed facts.  The only way it would fall outside the scope of official error for HB D&A purposes would be if the claimant contributed to the error (eg by not providing evidence requested by DWP at the time of the original decision, then providing that same evidence in support of the Tribunal appeal).

Now, if you can make out “any time” grounds for revision of the December 2015 decision, everything is back on the table going forward - the reinstated HB award could only end from a later date if the Council has reason to believe that the claimant’s circumstances no longer support entitlement.  If they can see that her issues at the DWP end do not suggest she has suddenly come into income or capital likely to affect her HB, there is no need for the reinstated HB award to stop at any point.  The stuff about her not having income enabling them to “action” HB is nonsense of course (never trust anyone who uses action as a verb).

Thanks, that is really helpful!

Unfortunately in December 2015 the dates were as follows:

JSA end date 10/12/15
HB was in the end ceased from 14/12/15
ESA claim starts 29/12/15.

If client had backdated her ESA claim to the date her JSA stopped we would have been good to go :(.

I’ve had a couple of thoughts but need to shoot off so will get them down later