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HB claim cancelled

Timothy Seaside
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Housing services - Arun District Council

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Joined: 20 September 2018

It’s been a while since I’ve seen one of these. I would welcome any observations.

Claimant and partner get UC and CHB. They completed a paper HB application form when they were placed in homelessness accommodation in July. The form was submitted to HB by the HO officer.

This is what the letter says:-
“We’ve cancelled your housing benefit claim
This is because you haven’t completed the form in full.
We’ve closed your claim and we won’t write to you again.
We can still reopen your claim
But only if you complete our online claim form [within one month]”

I’m thinking it’s an any time revision because there’s no such thing as cancelling a claim - they either decided it was defective, or they made one or more adverse inferences. But I wonder if there are a couple of other points:-

The bits of the form that are missing are a section about other benefits, questions about capital, and questions about the property (property/rental details were covered separately by HO). Reg 83(7) says the LA may “request the claimant to complete the defective claim” - so is asking them to complete a whole new online claim really completing the defective claim? It seems to me that the LA is asking too much - and not even giving any indication about what was missing. The claimant had actually included all the benefit information (allbeit in different sections) and in any case, the LA can (and will) get all the benefits info from Searchlight. So it just leaves the capital information. Was it reasonable to ask for so much?

I’m also wondering whether there is a separate official error argument because of the circumstances of completing the form. Thinking about this, I can see we’d need to know more about what involvement the HO officer had and what he said to the claimant, and whether he checked it through before taking it from them.

 

HB Anorak
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Benefits consultant/trainer - hbanorak.co.uk, East London

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That better hadn’t be one of your lot, because if it is I obviously didn’t train them properly two years ago.  Rule 1 in HB adjudication: you never, EVER use that word.  And for good reasons: it obfuscates the decision making process and can lead you to do things you don’t have the power to do.  Sometimes it is possible to salvage the decision by establishing that what was done in substance was lawful, but sometimes you have an inchoate mess, a category into which I think this case might fall.  About 12 years ago I was handed the poisoned chalice of a decision like this to defend at the UT in Edinburgh - I should never have taken the gig, it turned out to be my second worst* experience in benefit appeals.  It was Douglas May and anyone one who has appeared in front of him will know what I’m talking about:  I honestly thought he was going to climb over the table and deck me at one point. 

Anyway, one serious legal observation.  You mention Reg 83(7) which says the Council “may” refer a defective claim back to the claimant to be properly completed.  I don’t think this is “may” in the sense of “we could give you a second chance, if we felt generous, but equally we could just reject your claim outright then you’ll be sadder and wiser”.  I think it’s more “may” in the sense of “we are not obliged to accept your claim in that state, we can insist on you patching it up before we put your HB into payment”.  That means the claimant should always be given a month and immediately rejecting the claim is premature.  If he wasn’t given a month to correct the defect then the decision (if indeed there has been one) can be revised on the official error ground as you say.

I think in this case it is more likely that there has not been a proper decision and that such a decision still falls to be made - which should take into account any further evidence and information that has been supplied in the meantime even if it was missing from the claim form

*CSH/67/10 if you want to wince on my behalf.  I’m still too embarrassed to talk about the worst one, it was more recent.

Timothy Seaside
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Housing services - Arun District Council

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Thanks, Peter.

It might have been sent by an agency worker. But it looks like it was a standard letter template; which is worrying.

I did wonder about both the degree to which the “may” was discretionary, and the timing of the decision (whether they should wait until they’d given the claimant a chance to put it right before deciding the claim was defective). I don’t think the wording of Reg 83(7) is completely clear, but natural justice supports both points that you’ve made. Do you know of any caselaw on either point?

On the question of whether using the term “cancelled” was wrong in itself, I think my argument would be that it’s not at all clear what the basis of the decision was - defective claim or adverse inference. It doesn’t seem reasonable to allow the LA to decide retrospectively. Could an adverse inference decision be made straight away without allowing the claimant to provide further information? Seems like that wouldn’t be very fair.

In this case another point has just occurred to me. The couple are getting UC, so there can’t really be any adverse inference decision on capital can there? The fact that they are getting UC means they are treated as having nil income and nil capital doesn’t it?

HB Anorak
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Benefits consultant/trainer - hbanorak.co.uk, East London

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The only case law I’m aware of concerns the requirement to make some kind of decision and the existence of a right of appeal (R(H) 3/05), and a couple of cases that look at the scope of that right of appeal.  I recently made the following comments on an HBINFO thread with extracts from the case law:

The only question is the scope of the right to appeal.  You have two options when rejecting a claim for lack of evidence: simply say the claim is defective, or assume that the unverified facts are to the claimant’s maximum disadvantage (an “adverse inference”).  With an adverse inference the right to appeal includes a right to dispute the facts that have been inferred - the claimant gets another bite of the cherry and can produce the missing evidence in support of the appeal.  Is the right of appeal against a defective claim decision limited to the question whether the claim was defective on the date of the decision?  Tribunals can only take into account circumstances obtaining down to the date of the decision and if at that point the claim was defective maybe that’s the end of the matter?  So the appeal would be limited to whether the evidence request was reasonable, or whether the claimant had good reasons for failing to comply etc.

I don’t think this issue has ever been definitely resolved.  CH/3564/2007 contains the following passage:

12.    I would accept that there may be some inclarity in the law as to the consequence of a claim being “defective”, within the meaning of reg. 83 of the 2006 Regulations. In particular, it may be unclear whether, if the local authority refuses to consider a claim on the ground that it was “defective” (because insufficiently evidenced), a tribunal on appeal is bound to determine not whether the claim was defective, but whether the conditions of entitlement to housing benefit were satisfied at the date of that refusal.

The Commissioner doesn’t have to decide the point because the decision under appeal in the case was more of an adverse inference, but he does make some further comments suggesting that he prefers the wider right of appeal (i.e. the claimant can simply produce the missing evidence as part of the appeal).

In CH/3736/2006, the Commissioner was dealing with the very closely related issue of termination following suspension: again adverse inference is available as an alternative (and is the only way to create an overpayment as termination is prospective only).  He says: “One consequence of the [adverse inference] option is that the appellant could subsequently produce the necessary evidence in support of an appeal against, or an application to revise, the decision.” - which implies s/he could not do that in response to an award being terminated.

It is certainly important that the Council expresses its decision clearly as either one or the other.  “Made ineligible” is horrible and should be filed in the same dark place as “cancelled”.