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HB and decision making

AngelaM
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Staying First, Shepherds Bush Housing Group

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Joined: 1 September 2016

Hi all

I have a client who was on Housing Benefit as he was working part time. However, HMRC then advised HB that the client had an income from a second job. His income was therefore too high for HB so they ended his claim (and also said he had been overpaid).

HMRC information was incorrect, as the client was not working for this second company. I rang HB and they said they had to follow what HMRC were saying. At the time my boss said that HB are supposed to make their own decision based on the evidence they have, rather than just following what other agencies say. My boss is now on annual leave so I cannot ask him which legislation states this.

I have been chasing the company to ask them confirm that my client doesn’t work for them. Today they finally replied and they have confirmed what my client has been saying all along. I will pass this confirmation to HMRC to ask them to amend their record, but this may take some time. I also want to send this letter to HB and ask them to reinstate the client’s claim on the basis of this letter without waiting for HMRC to update their records. This is because my client is being taken to court for eviction.

What legislation can I refer them to so they can make this decision based on the evidence the client has provided?

Thanks

ClairemHodgson
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Solicitor, SC Law, Harrow

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sned the letter and refer them to the evidence which confirms what your client said all along, and ask them to reinstate, back the back money owing and stop any overpayment proceedings.  you don’t need anything more.  on the eviction, ensure your client actually attends court to explain all this to the judge, with the copies of the relevant evidence.  the court should defer any decision whilst this is sorted.  there should be a duty solicitor at court who should be able to assist.

C Browne
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Macmillan Cancer Support

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Dear AngelaM,

You could try Regulation 4 Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001. It doesn’t mention HMRC.

A local authority benefits service is required to follow a DWP determination of entitlement to means tested benefits but there is no equivalent provision for income as assessed by HMRC. I suspect that, because of the local authority access to the government data matching exercise, they have revised your client’s entitlement and that is right and proper, as they have evidence (from HMRC) on which to make a decision - they haven’t just done it on a whim. 

You are entitled to challenge the validity of that evidence with your client’s own evidence, which is what you propose to do. I would suggest that you challenge the HB decision with this fresh evidence and ask them to expedite the revision because of the prospects of the eviction proceedings. Your letter to the local authority can then be disclosed to the Court in the possession proceedings.

Cheers

Chris Browne

Lillith
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Welfare Benefits Team Staffs North and Stoke CAB

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Dear AngelaM
Your boss is correct.  We disagree, respectfully, with the colleague who suggested otherwise.
The idea that HB have to ‘follow’ decisions made by other agencies seems to be widespread amongst local authorities.  We feel it should be challenged vigorously whenever it is encountered.
The idea comes from the principle of ‘passporting’, which we think has always been a misleading piece of language.  The way a person is ‘passported’ to HB entitlement by an award of IS, say, is by the operation of paragraph 4 of Schedule 5 of the HB Regs 2006, which provides that where a person has an award of IS the whole of the persons other income or capital is disregarded for HB purposes.  In other words, once the DWP has decided that there is entitlement to Income Support, HB cannot independently apply a means test to HB entitlement.  In that, specific, situation, HB are, in effect, ‘bound’ by the DWP decision.  But that is as far as it goes.  On any other question HB should be making their own decision.
This is the first time that we have heard of a local authority extending this mistaken idea to HMRC, where there is not even the equivalent of ‘passporting’.  This is simply a myth that seems to persist & grow.
There is no actual legislation that says HB are wrong, but this has to be looked at the other way round, we would suggest.  There is no legislation that says they are right.  Happily, though, on our side there is case-law.  We recommend you have a look at the UT decision in AM v Chelmsford Borough Council (HB) [2013] UKUT 245 (AAC).
We’d love to hear how you go on.

AngelaM
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Staying First, Shepherds Bush Housing Group

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Thanks all, I shall let you know how I got on.

Mike Hughes
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Senior welfare rights officer - Salford City Council Welfare Rights Service

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I have had this happen a couple of times. A couple of thoughts:

1) Consider lodging a complaint. Clearly label it as such as it then has to be recorded as part of their stats. This will not make you their friend. It will move things along quickly. Make it clear that you intend to exhaust the complaint process and pursue to the Ombudsman via the MP.

2) The evidence they cite does no more than suggest there “may” not be entitlement. Therefore the correct action would be to suspend because a “question has arisen”. The ending of the claim is illegal. They may argue that HMRC information must be taken at face value as credible. I have twice argued successfully that all the evidence from UT cases and newspapers suggests the exact opposite. Google and Rightsnet are your friend in such circumstances. In such circumstances of course they should take the assertion seriously but it merely raises a question. It does not necessarily provide grounds for supersession.

3) As previously stated by others get your evidence in.

AngelaM
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Staying First, Shepherds Bush Housing Group

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Joined: 1 September 2016

Hi

Just a quick update, they’ve put HB back in payment. However, he’s now on JSA which they verified on their systems but still used his wage as income even though he longer receives it!