HB cancellation of claim due to the way evidence was submitted but problems with decision letter

Hi all

I was hoping to pick your brains.

I have a client (UC not applicable as he currently is in a gateway area and he doesn’t meet the conditions) and he and his family were in temporary accommodation, which was being paid for via HB until 4th June 2017.

He then moved into permanent accommodation (within the same borough) on 5th June 2017. On the 5th of June he emailed HB a covering letter explaining he had a change of address and he emailed them a copy of his tenancy agreement.

HB sent my client a letter dated 12/7/17 (client states that he didn’t receive this letter but I was advised by HB about this letter when I rang them yesterday) which was an automatic computer generated letter stating how much his HB award was until 4th June 2017 and then it said: 5th June, 0,0 weekly. It didn’t say that his HB had been terminated. HB couldn’t confirm to me over the phone whether this included information about his appeal rights. However they did say to me that they agreed that this letter wasn’t very clear. They also said that no one actively closed the claim, their systems just automatically closed it as his rent account at his previous property had closed.

He then got a letter from HB dated 21/7/17 (as they had notification that his ESA had stopped, which it had and he successfully appealed this subsequently) asking for him to provide proof of income and advised him that he needed to report his change of address via their online change of circumstances form. He emailed them on 25/7/17 with a covering letter explaining what income he had and that he was appealing the ESA decision. He also submitted bank statements.

Nothing happened for a long time, so my client’s Son told him to just put in a new claim for HB in September, which he did and it was awarded and backdated to August. They told him to apply for a DHP for June to August, which he did but this was rejected on the grounds he didn’t have a HB claim for the period the DHP was requested for. Now HB is in payment it fully covers his rent so he cannot get it now either.

The issue for the client is that there is a gap in his HB payments from 5/6/17 to 20/8/17, which has led to rent arrears and his landlord has issued a NOSP.

I have two questions:

1. What is the effect of the HB termination letter?

I don’t think that the letter of 21/78/17 is enough because it is not clear that HB was being terminated. At the very most it just looks like that he has been awarded £0 per week from 5/6/17. They also then wrote to him afterwards to request proof of income and to fill in an online change of circumstances form, so it might have sounded to my client that the claim was still live. When he failed to fill in the online change of circumstances form, there was no letter from HB saying that they had therefore terminated his claim.

I assume that this just means that the council has to issue a proper letter rather than meaning his claim was still legally live for this period? However, even if the claim wasn’t live I might be able to use the situation to say my client had good cause for not requesting a reconsideration within 1 month.

2. What scope do I have to argue that the council should have accepted his change of circumstances via email?

The whole time HB had all the information they needed to verify his change of circumstances. I know the regulations allow HB to prescribe the method of electronic communications but is there any scope in arguing that they were being unreasonable (Wednesbury unreasonableness?)? They want everyone to move to online accounts so were saying that he needed to register online and report the change of circs (however, even though you can upload evidence on your online account, you can also email them evidence - their email is expressly for the purposes of emailing them docs relating to your claim).

Alternatively, I don’t know if there is an argument under the Equality Act to make reasonable adjustments? When he first moved into the property he didn’t have a computer or the internet. When he was emailing HB he was writing hand written letters, taking pictures of it on his mobile phone, then emailing it to HB via his mobile. Its more difficult to set up online accounts via mobiles. Crucially, due to his disability he cannot get out and about easily, so wouldn’t be able to get to somewhere where he could use a computer.

If those arguments sound weak I’d probably still submit a reconsideration request and see if I can appeal to their good nature, explaining his disability etc.

I think there is a risk of over-complicating it if you start chucking Wednesbury and Equality Act at them.  It just needs the decision making to be clarified and I’m sure they will reinstate HB.

What you need is the decision ending HB from June to be revised.  There are several ways this can happen:

- the decision was made in error because the Council had already been told by email about the change of address.  Official error provides “any time” grounds for revision
- his email of 25/7/17 should be treated as an in-time application for revision of the decision notified on 12/7
- the Council’s decision notice is so poor that it doesn’t even pass muster as a valid notice at all, so the decision ending HB remains to be properly notified and the time limit to revise it has not even started to run yet
- he could submit an out of time application for revision now, with the reason for delay being that he reasonably thought he had already done enough to notify them
- he could appeal to the Tribunal against the decision of 12 July, who will 99% certain admit his appeal out of time, which opens up a further ground for revision

When he first reported his change of circumstance at the beginning, he might not have used a method that the Council had told him to use in previous decision notices.  If so, that would weaken the official error argument, but that still leaves you with four other grounds for revision.  I think the one most likely to convince them without a fight is the second - he applied for revision by email on 25/7.  The Regs do not prescribe any form for an application for revision other than it must be in writing (which it was).

If this involves my good friends at Hammersmith HB department you wont have any trouble getting it revised - it will be routed to a grown-up who understands all of the above perfectly well.  Cannot answer for other authorities in the vicinity though.

Why not lob in late MR request against whichever decision they claim was made to end entitlement (which is very unclear as Peter notes) and they either reinstate HB for the period concerned or if they refuse, your client has appeal rights on the MR refusal, whether on substantive grounds or refusal of late request?

Thanks both.

I’ve submitted the request and will let you know how I get on. It’s not Hammersmith and Fulham. Unfortunately it’s a council which is really slow (in the past it has taken them 2 1/2 months to respond to a simple query).

There is no such thing as MR in HB, just submit a late appeal and make them justify their decision.

They are free to revise in the meantime, but if they refuse, it will be for a Tribunal to determine whether or not the appeal can be admitted as a late appeal .

If the appeal is admitted , it will then go to a full hearing