Reasonable adjustment to benefit backdating rules
I have a client who has run up Council Tax arrears/costs as he has been unable to make a claim for Council Tax Support online due to learning disabilities. There is some evidence that he did inform Council Tax several months ago that he was struggling to make a claim online due to disability. I have now made a claim on his behalf but the local scheme is quite strict with no backdating of claims allowed (except for pensioners). Would it be feasible to ask for a backdate as a EA reasonable adjustment to this policy on the grounds of disability? If the LA refused would a Valuation Tribunal consider an EA argument or would he need to make a separate claim at the County Court for an amount equivalent to the backdated Council Tax Support he has lost out on?
could they be exempt as smi?
The other thing I was thinking is to apply for discretionary reduction under s13A LGFA and appeal if refused.
Whilst hypothetically you could, following RR, probably ask the VTE on appeal to disapply parts of the scheme so far as is necessary to restrain discrimination in breach of the Human Rights Act (rather than the Equality Act), it seems to me that you would tactically be better off being able to address the merits of the case at large on a s13A appeal than limiting yourself to a fiddly discrimination argument.
Outside of the VTE, I think you need to distinguish between a challenge to the scheme itself (e.g. on grounds that the failure to provide for backdating amounts to unjustified discrimination or that there was a failure to apply PSED in adopting the scheme) which probably needs to be a JR - or a challenge to the treatment of your client (e.g. in a failure to account for his needs in terms of being unduly prescriptive as to how an application can be taken or similar) where the remedy might be a civil claim or (more practically) a corporate or LGO complaint.
I’d certainly lodge a complaint with the local authority that they’re in breach of their EA duties in respect of your client (and probably also their PSED duties if this is a broad policy).
You could try the Equality Advisory Service perhaps for some guidance on that http://www.equalityadvisoryservice.com
Telephone helpline 0808 800 0082
On Elliot’s point about the LGO, the Ombudsman aren’t accepting any new complaints at the moment.
I would try SMI, Discretionary Payment and Section 13 of the Local Government and Finance Act in that order.
Discretionary reduction and s13A(1)(c) are the same thing, but yes I agree keep it simple. Try SMI, then if you want a quick result, ask for a discretionary reduction equal to the amount that would have been awarded if the scheme allowed backdating to the date requested. There is a right to appeal to the VTE if that application is rejected. Introducing the stuff about reasonable adjustments and PSED etc at this stage is just over-complicating what ought to be a straightforward case. These arguments should be kept back to use as the final option if more conventional tactics fail.
What is the evidence that he contacted them and advised of his difficulties in making a claim? Could that be treated as him starting the claim process and ‘reasonable time’ being required (and allowed) to provide the full application details? This would get round the need for a backdate request.
Thanks for all the replies and ideas of how to achieve the desired outcome in this case.
The GP has stated surprisingly that the client is not SMI in this case. I did consider a S.13(a) application but as this requires a financial statement I didn’t think I would get very far on hardship grounds (client is single and has LCWRA element paid) plus it will inevitably end up at a VT taking at least 12 months to get heard.
I’m currently at the negotiation stage to see if benefits section can be persuaded gently to do the right thing. Any challenge using the EA would just be based on my client’s circs ie. a failure to make a reasonable adjustment to the backdating rule due to his disabilities. I could use Mairi’s point too and argue that my client should have been treated as making his claim the day he contacted benefits to tell them he was struggling to claim online and thus avoid the backdating rules altogether. Client could also pursue a corporate complaint of course, although I would have to signpost him elsewhere for support with that.