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Exemption of Council Tax because of SMI

Stuart G
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Local councils will consider exemption of council tax liability if a GP provides evidence that the claimant has a Severe Mental Impairment.

I understand that, whilst it is useful to have been awarded a disability benefit, this is not essential as long as the applicant is eligible for a disability benefit.

I have a client who has been certified by the GP that there is a Severe Mental Impairment but does not have a disability benefit (they never applied partly because of their mental state).  The local council will not consider SMI exemption because there is no disability benefit.  Although I pointed out that there is no need to to actually have the disability benefit the council is not budging.

I there anything laid down that I can quote to the council?  Also, how does a client demonstrate they are eligible for a disability benefit without applying for one?

Thank you.

Stuart

Jon (CHDCA)
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There may be some things you can pick out of a couple of previous threads, though NB these are mainly about the barrier to claiming being over pensionable age:

https://www.rightsnet.org.uk/forums/viewthread/10525/

https://www.rightsnet.org.uk/forums/viewthread/14431/

 

Stuart G
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Thanks, Jon.

Very interesting link.  However, the discussion raises the same issue.  Although I’ve told the council that my client is eligible for a benefit but the council insist that they need to receive a benefit. I could put in a complaint, but I’d prefer to be able to quote chapter and verse.

The second link takes me back to my post.

Jon (CHDCA)
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Oops sorry, this was meant to be the other one: https://www.rightsnet.org.uk/forums/viewthread/12317/

I’d have thought that definitive chapter and verse would be difficult on this.
(Analogy with benefit law probably doesn’t help. s1 of the Soc Sec Admin Act 1992 says that to be entitled to a benefit, generally you must have claimed it, though perhaps “entitlement” and “eligibility” aren’t quite the same thing.)

Ruth_T
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The relevant statutory references are:
Local Government Finance 1992 Sch 1 para 2, and
Council Tax (Discounts Order) 1992 SI 1992/548 Article 3

Stuart G
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Thanks Jon and Ruth.

The statutory references quoted by Ruth are helpful.  However, how do I demonstrate to the council that my client is entitled to a disability benefit without them applying for it?

Stuart G
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Hello

This issue has resurfaced.

A client’s son has been certified by their GP with Severe Mental Impairment.  Because of mental health issues no disability benefit has ever been applied for.  Council want the client’s sone to contact the DWP to determine eligibility of benefit before considering exemption.  Client no longer has contact with her son.

Even if our client was still in contact with her son,  it would be impossible to expect him to contact the DWP because of his SMI.

I want to take this up with the Local Government Ombudsman.  Has anyone had experience of a convincing argument and the LGA agreeing that councils should accept GP medical evidence of SMI and apply council tax exemption without the need to contact the DWP?

Thanks.

ClairemHodgson
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Stuart G - 06 August 2019 12:58 PM

Hello


A client’s son has been certified by their GP with Severe Mental Impairment.  Because of mental health issues no disability benefit has ever been applied for.  Council want the client’s sone to contact the DWP to determine eligibility of benefit before considering exemption.  Client no longer has contact with her son.

i may be being thick - but council tax exemption would only be relevant if the SON was responsible for it and thus could apply for the exemption.  the parent wouldn’t be if the son is not living with her, and it is implicit that he is not if she has no contact with him.

if the son in fact has his own place for which he is responsible for council tax, then mother can only do anything if she is appointee, and surely, if she has no contact, she isn’t…...

am I missing something? or is something missing from the circs?

Stuart G
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Thanks, Claire.

I should have explained that client’s son is an adult who used to live with his mother (our client).

Son has been certified as having SMI since January 2000 and I’m trying to get exemption for him backdated.

ClairemHodgson
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Stuart G - 06 August 2019 01:42 PM

Thanks, Claire.

I should have explained that client’s son is an adult who used to live with his mother (our client).

Son has been certified as having SMI since January 2000 and I’m trying to get exemption for him backdated.

that makes sense

but, if he has capacity your client, the mother, has no standing anyway; if he doesn’t have capacity, does he have an appointee?

seems to me even if you can show the council it is wrong generally, your client doesn’t have any right to get herself involved/do anything unless she IS appointee

Stuart G
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Hello again

You might be right but that isn’t an issue with Barnet Council.  They are happy to consider exemption for client’s son but want him to contact the DWP to check that he’s eligible for a disability benefit.  As our client is not in contact with her son, and as his mental health issues prevented him from claiming benefits, getting evidence of eligibility from the DWP is unlikely to be achieved.

I understand that, where no disability benefit exists, some councils will agree exemption of council tax on the basis of evidence from the GP.  Where this does not happen, as in my case, it is possible to take the matter up with the Local Government Ombudsman.

All I want to know is, does anyone have any experience of taking such matters up successfully with the LGO?

Thank you.

Elliot Kent
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Stuart G - 06 August 2019 04:52 PM

All I want to know is, does anyone have any experience of taking such matters up successfully with the LGO?

I really don’t think that the council can be sensibly criticised for refusing to essentially speculate on the last twenty years of hypothetical benefit entitlement for the son, especially given that the son has now disappeared and there is no first hand evidence of any of the matters which would speak to his entitlement.

LGO decisions can be found online at http://www.lgo.org.uk. There are currently 18 results for “Severe Mental Impairment”. 5 appear to have been upheld but none of those really seem to be on point. The closest is probably the Barnet case (18 000 435) but in that case, the LA accepted that SMI applied and backdated but was criticised for having delayed in doing so. There was also a lot of involvement from social care in his case so there was clearly something of a duty of care from the Council when it came to that sort of thing.

In most of the cases directly concerning SMI, the LGO has summarily refused to deal with the complaint because of the possibility of appeal to the Valuation Tribunal (see e.g. 18 017 050 and 18 018 975).

If you could find some way of getting your case to the VTE, then perhaps this is a better option. I think the VTE would expect a very very detailed submission from you explaining exactly which benefits you say the son would have qualified for and when and probably a painful degree of detail as to how he met the qualifying conditions for those benefits at the particular times.

Stuart G
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Thanks, Elliot

I’ll have a look.

Stuart

Stuart G
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Hello Elliot

I take your point that it is difficult for the council to speculate on someone’s entitlement.  However, I also think that if someone is certified as having SMI, and their SMI prevents them from claiming, or proving their entitlement, there should be some middle ground to enable someone to be exempt from council tax liability. 

Thanks for your helpful research, much appreciated.  I can certainly see now that it would be more appropriate to appeal to the Valuation Tribunal than the LGO and thank you for pointing me in that direction.

I’ve had a look at the VT forms and am willing to go down that route if the client is happy for me to do so.  Interestingly, in all my exchanges with the Council, not once have they said that I have the right to appeal to the VT Service. 

Thanks again.

Elliot Kent
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I think I should reiterate that an appeal to the VT on this will not be an easy ride.

Assuming that there is no issue about the threshold question (i.e. whether it is conceptually possible for a person to be “eligible” for these purposes without having claimed), your case is still going to have to be very carefully presented bearing in mind:

1. The VT members are unlikely to know much at all about the benefits system or the qualifying conditions for the relevant benefits. They are clever people, but they are not coming into contact with this in their day jobs. You will need to spell out very carefully which benefits you are asking them to look at, what the qualifying conditions are and why they were met.

2. The benefit system has changed very significantly over the period you are looking at. Showing that the son would have qualified for ESA in 2001 is meaningless because it didn’t exist. You are going to have to reflect on which benefits would have been accessible at the relevant times and which counted for SMI purposes at which times.

3. The burden of proof is entirely on you. You can’t expect the Council or the VT to do any heavy lifting. If you fail to make out your case, the appeal will fail. It is very unlikely that anything at all will be done in terms of investigating the son’s health.

4. Given that you can’t contact the son, your client is probably your best (perhaps only) witness. You will need to have her set out clearly and fully in a witness statement all of the facts which are relied on as to proving eligibility to benefit. e.g.

“I believe that [son] would have scored points under descriptor 15(a) which relates to getting about. I believe this because [son] would never leave the house even when accompanied. He would leave the house only a handful of times a year and only when I dragged him out to hospital appointments and so on. He would never come to family functions and I had to make excuses for him which became a source of increasing tension in the family. He missed his brother’s wedding due to his anxiety in leaving the house which he found deeply upsetting.”

(That’s made up of course but that is just I think the sort of detail which you would be looking for).

Here are some cases:

Tribunal rules against claimant on the threshold question:
http://info.valuation-tribunals.gov.uk/decision_document.asp?appeal=/decision_documents/documents/CT_England/1775M100213176C.htm&Decision=liability

Appeal dismissed because claimant failed to make out case:
http://info.valuation-tribunals.gov.uk/decision_document.asp?appeal=/decision_documents/documents/CT_England/1445M212393084C.htm&Decision=liability

Council sends claimant on wild goose chase looking for DWP evidence of entitlement before Tribunal concludes no evidence of AA entitlement:
http://info.valuation-tribunals.gov.uk/decision_document.asp?appeal=/decision_documents/documents/CT_England/3935M72750212C.htm&Decision=liability

I wasn’t able to find a successful one I’m afraid. You can check for yourself https://www.valuationtribunal.gov.uk/decisions-and-lists/

Stuart G
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Thank you again, Elliot