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Any time revision for underpaid HB award

Paul_Treloar_AgeUK
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Client has been on partial lHB award for over 10 years as he had part-time earnings. He stopped working and claimed Pension Credit but doesn’t seem to have told the LA and so has been underpaid HB for the intervening period.

Do you agree that reg.4(7B) of the HB(D&A) Regs 2001 allow for any any time revision and for full backdating to be applied to his HB award? Looks pretty straightforward to me but just wanted to check I’m not missing anything obvious here?

Many thanks as always.

Amanda JB
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Per DMA regs 7 (2) (i) and 8 (14) if a person becomes entitled to a relevant benefit , or an increase in the rate of the benefit, the decision is superseded from the date on which entitlement arises

If any doubt quote CH/3524/2008

Paul_Treloar_AgeUK
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Brilliant, nice one Amanda, thanks very much for this.

HB Anorak
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A bit like the UC pensioners thread, the strict legal position might not be as advantageous as that but in practice I don’t think any local authorities stand on ceremony.

Since the claimant became entitled to SPC, the Council will have made a number of awarding decisions (annual upratings etc).  Any of these decisions that were made after the claimant started getting SPC, but before the Council was aware of that fact, would need to be revised if the Council is going back 10 years.  I don’t think the “relevant benefit” ground for revision applies in a case where the HB decision you want to revise was made after the claimant’s entitlement to the “relevant benefit” was already established.  It’s a straightforward case of a decision being made in ignorance of the facts and revision in the claimant’s favour is only possible if the matter came to light within a month of the decision being made.  But there is still no time limit to make a superseding decision under Reg 8(14), which means that if the law is applied rigidly the following rather strange adjudication history results:

- the operative decision which was currently in force on the date from which SPC was awarded can be superseded under Reg 8(14) down to the date of the next original decision.  there is no time limit for that.
- if SPC was not already in payment by the date of the next original HB decision, that decision can be revised under Reg 4(7B), again without time limit; but if SPC was already in payment it is now too late to revise that decision which was made in ignorance of the facts and presumably was not appealed at the time
- the same goes for each subsequent original decision in the 10-year period: if they were made in ignorance of the fact that SPC was being paid, it is now too late to revise those decisions*
- but once we get to the most recent 13 months , it becomes possible to start revising/superseding again: the claimant would still be in time to appeal any decision made up to 13 months ago, or the Council could accept an application for revision out of time; at the very least, a superseding decision could be made under Reg 8(4) to award max HB from the beginning of the week in which the SPC came to light.

The above action would leave a brief period for which max HB is awarded 10 years ago, then nothing more until some date within the past 13 months in which HB is once again increased.

Every authority I have ever spoken with about this takes the view that life is too short to be bothered with all of that malarkey.  If you are going back 10 years, you are going back 10 years, end of.  I believe that is also DWP’s view.  So I think you can expect full arrears to be paid in this case, unless someone in the Council really has too much time on their hands and feels like making a name for themselves.

*I remember debating this with Derek Stainsby over on HBINFO some years ago.  His view was that Reg 4(7B) can be interpreted so as to allow any time revision even if the relevant benefit was awarded before the decision you want to revise was made.  I don’t think it reads that way, and that isn’t the mischief that Reg 4(7B) is aiming at, but since literally no-one else cares (including DWP) it’s probably not going to be a problem!

Paul_Treloar_AgeUK
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Thanks for this Peter, I did wonder about how this didn’t get picked up on the annual reviews - however, apparently the client says he hasn’t heard from the LA in question for the 10-year period so presumably that adds some weight to his case that they should have picked up on this before?

Amanda JB
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I think if you quote the DMA regs and the caselaw they will go back, there is also the chance they got something from The Pension Service when Pension Credits was awarded too but that will be archived now.

The abolition of benefit periods is why cases like this go for years with incorrect incomes, the LA involved maybe see their pensioners as low risk so haven’t bothered to review them either, 10 years is a long time for a case not to be picked up on especially with all the mismatch reports we get

Paul_Treloar_AgeUK
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Thanks again both, this is really helpful.

Charles
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HB Anorak - 17 February 2021 01:34 PM

[...]
I don’t think the “relevant benefit” ground for revision applies in a case where the HB decision you want to revise was made after the claimant’s entitlement to the “relevant benefit” was already established.
[...]
but if SPC was already in payment it is now too late to revise that decision which was made in ignorance of the facts and presumably was not appealed at the time
- the same goes for each subsequent original decision in the 10-year period: if they were made in ignorance of the fact that SPC was being paid, it is now too late to revise those decisions*
[...]
*I remember debating this with Derek Stainsby over on HBINFO some years ago.  His view was that Reg 4(7B) can be interpreted so as to allow any time revision even if the relevant benefit was awarded before the decision you want to revise was made.  I don’t think it reads that way, and that isn’t the mischief that Reg 4(7B) is aiming at, but since literally no-one else cares (including DWP) it’s probably not going to be a problem!

Very interesting! From a legal perspective, what would you say about using any subsequent SPC supersession which increases the rate of SPC (for example the annual uprating) to supersede the HB decision in force at that point?

Stainsby
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Glad to come back into the debate after so long

I think you need to bear in mind that since 2004 HB awards are made for an indefinite period.

Uprating decisions in HB (unlike other social security benefits) are appealable but I don t think that the time limits to appeal should detract from it being possible to correct the mischief here

The change of circumstances on giving up work and becoming entitled to SPC would enable the preceding HB to be superseded from the date of the award of SPC (D&A Reg 7(2)(i) and 8(14)

The practical result will be that the award will be increased and notwithstanding the uprating decisions it would otherwise be increased for an indefinite period. 

Once SPC is awarded, all income and capital must disregarded (HB (SPC) Reg 26)

All subsequent uprating decisions if left unchanged arguably become erroneous in law once the superseding decision following the award of SPC takes effect

It is nevertheless the case that HB (SPC) Regulation 60(7) provides

(7) Where a change of circumstance occurs in that a guarantee credit has been
awarded to the claimant or his partner and this would result in an increase in the rate
of housing benefit payable to the claimant, the change shall take effect from the first
day of the benefit week next following the date in respect of which the guarantee
credit is first payable

A claimant who is also on pension credit need only notify the changes listed in HB (SPC) Reg 69(6)-(8) so it is strongly arguable that the ” advantageous change”  rule in D&A Reg 8(3) will not apply in any case.

The sum total of all of this is that the LA should go back all the way and increase this person’s award

 

[ Edited: 17 Feb 2021 at 05:05 pm by Stainsby ]
HB Anorak
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I fondly remember this debate, and I take on board everything Stainsby says about reporting duties and effective dates of superseding decisions, but my answer to that would be that this is only a change of circumstance/new relevant benefit award in relation to the operative decision which was in force at the time when it happened.  Any supersession of that decision could only carry increased HB down to the date of the next original HB decision, which would then need to be revised if grounds could be found.

Interesting suggestion by Charles though - each SPC annual uprating provides fresh grounds for a further superseding decision under Reg 8(14) and if the date fell nicely it could cover almost a complete year.  And because SPC is uprated from the first benefit week to begin on or after 6 April, in most years the dates will fall nicely; in fact the only time the dates would not fall nicely would be if the claimant is a weekly rent payer, and the first Monday in April is the 7th, and the SPC benefit week begins on the 6th.  Otherwise, the decision will last most of the year.

That is a way for any local authority struggling with a grain of doubt about these cases to ease its conscience.  In practice, no-one is this pedantic anyway!

Paul_Treloar_AgeUK
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Crikey, not as straightforward maybe as I anticipated, thanks all.

Stainsby
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On reflection, it is much simpler

As Peter says the operative decision can be superseded and the suppression will be effective in accordance with the SPC award.

The question of revision of the uprating decisions is a red herring though because those decisions can legitimately be superseded (HB(D&A) Reg 7(2)(b)

Reg 7(2)(b) provides

(2) The appropriate relevant authority may make a decision under paragraph 4 of
Schedule 7 to the Act upon its own initiative or on an application made for the purpose
on the basis that the decision to be superseded is a decision–

(b) which is erroneous in point of law or made in ignorance of, or was based
upon a mistake as to, some material fact provided that the decision–
(i) cannot be revised on the basis of that error, ignorance or mistake; and
(ii) is not a decision prescribed in regulations under paragraph 6(2)(e) or(4)(a) of Schedule 7 to the Act;

This makes the process simple in that any retrospective supersession may provide the grounds to supersede (rather then revise) all decisions that were effective subsequent to the effective date of that supersession

This is one instance where revision and supersession can be effective from the same date

HB Anorak
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Reg 8(4) prevents an advantageous superseding decision for ignorance of the facts from having retrospective effect though

Stainsby
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My argument is that once you make a retrospective supersession in these circumstances , this may render decisions that were effective subsequent to the date of the retrospective supersession erroneous in law.

There is an alternative argument regarding revision that is to an extent the corollary of Sier and CH/3083/2005

A claimant who is on guarantee credit only has to report specified changes in circumstances, the duty to report anything other than those specific changes rests on the DWP, so it becomes arguable that the uprating decisions can be revised on ground of official error by the DWP in failing to report the fact of and increases to the claimants entitlement to pension credit or any determination of assessed income periods

Charles
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Stainsby - 18 February 2021 01:54 PM

My argument is that once you make a retrospective supersession in these circumstances , this may render decisions that were effective subsequent to the date of the retrospective supersession erroneous in law.

Even if the subsequent decisions are erroneous in law, wouldn’t the effective date of a supersession of those decisions be the date the superseding decision is made, or applied for by the claimant?
None of the provisions in Reg 8 of the HB(D&A) Regs apply, so we revert to Para 4(5) of Sched. 7 to the Child Support, Pensions and Social Security Act 2000.

Stainsby
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You are right, I must have had a senior moment there by overlooking the application of D&A Reg 8

I think we are all agreed that it does not make sense to make a supersession effective from 10 years ago only for a closed period if the circumstances prompting the supersession remain unchanged.

There are thankful other ways around the problem in this case such as DWP official error