Forum Home → Discussion → Housing costs → Thread
Signposting or decision notice?
We have a client who moved last year from London to Liverpool because of particular circumstances and his vulnerability. On ESA and HB in London. He was placed in supported Accommodation with a social landlord in Liverpool. He made a claim for HB, received an acknowledgement and then a letter directing him to a claim for UC. In fact, we consider it arguable that he is in Specified Accommodation - either exempt or managed. The letter starts off by saying “You have recently made an application for Housing Benefit and Council tax benefit ....... As you live in an area that comes under Universal Credit rules you are no longer able to apply for help with your rent in the form of Housing Benefit. You most now make a claim for Universal Credit…” Then goes on to say they will process his CTS claim and give some general information about UC, help from CA etc. We feel that this is a case where a claim has been made and no decision or appeal rights has ever been made - it is in effect still live. We are wondering if there is anything we have overlooked.
When precisely last year - or rather, what is the date of the letter? Because depending on the date, it may not matter - even in the (seemingly unlikely) event that it could be properly construed as a decision, are you still within the 13 month absolute time limit for an appeal?
But fwiw, it really doesn’t sound like its a decision.
This would be an inchoate decision (non compliant with Sch 9 HB Regs)
The clock will have not started to run as far as any appeal rights are concerned (see Anufrieva, R(P)1/04 and the Northern Ireland decision C110 07-08(IS))
Why pick a lane? Its either a defective decision or no decision at all. Either way you can make your case.
The only worry here is whether a decision is required at all. Both Article 7 of the No 23 Order, and its replacement from July last year - Reg 6A of the UC(TP) Regs 2014 - say that a person may not make a claim for HB. There is a right of appeal against a “relevant decision”, which is defined (so far as is relevant here) as a decision on a claim - Sched 7 to the CSP&SS; Act 2000. The issue is: if you cannot make a claim, do you even get as far as a decision or is signposting with no decision the correct action?
The counter argument relies on the very strong obiter passages in the second half of Neil Wood v Sec of State for W&P, which establishes a right of appeal against a refusal to make a superseding decision as if it were a decision. If those principles are flexible enough to cover a claim, there would be a right of appeal against a refusal to accept and decide a claim. I think Charles used that argument in a couple of Tax Credit cases and it might even have got an airing at the UT - cannot remember, maybe Charles will comment if that’s the case.
[BTW: why can’t I post or edit ” CSP&SS; Act 2000” without a semicolon appearing in it?]
[ Edited: 24 Sep 2023 at 12:22 pm by HB Anorak ]Yes I had a similar worry that the LA could argue that the correct procedure for a HB claim for supported accommodation is to make a claim for UC and tick Yes for the “supported accommodation “ question. The claim then goes to the Local authority for a decision on whether or not it meets the criteria. However (I may be wrong on this as I haven’t experienced the process yet) if the LA considers it supported living the claimant would still have to fill out a HB claim. It wouldn’t just be passported from the UC claim. In which case it would be hard for the LA to argue that our client did not make his claim in the manner set out by the DWP..
Not exactly the same situation - however, Circular A8/2014 has advice to Local Authorities as to what to do about signposting back claimants incorrectly directed to claim HB by Universal Credit i.e. where the LA decides that the claimant does not meet the specified accommodation criteria. This Circular advises them to signpost back “either as part of the HB decision notice, or through a separate conversation.” The implication is that a decision is needed.
Sorry, posting as I work my way through all the references. Surely in Reg 6A of UC(TP) regs 2014, Reg 6A paragraph (2) provides an exception for claimants in Specified Accommodation from the general ban on making claims for HB set out in paragraph (1)?
Sorry, posting as I work my way through all the references. Surely in Reg 6A of UC(TP) regs 2014, Reg 6A paragraph (2) provides an exception for claimants in Specified Accommodation from the general ban on making claims for HB set out in paragraph (1)?
Yes, that’s why it’s highly desirable that the Wood approach applies here: otherwise there is no appeal on the facts about whether or not the claimant does occupy specified accommodation when the Council thinks they don’t. I don’t think JR is an adequate remedy for that.
My further thoughts are that there will be a small number of people who fit the criteria for any of the specified forms of accommodation and would also be entitled to partial Housing Benefit but not to Universal credit, perhaps if they are earning or have other income. They would have to make a claim for HB, but it would be direct, not through the route of a UC claim, ticking a box about supported accommodation and then being directed to claim HB. Therefore there must be a procedure for assessing a direct HB claim (possibly by writing out to find out about the level of support, possibly through the LA contact with Registered Social Landlords ) and there must be a proper decision notice sent out to them. In any case we have started the process by writing to the LA to say there has been no decision on his claim, so I will keep you posted.
BTW: why can’t I post or edit ” CSP&SS; Act 2000” without a semicolon appearing in it?]
Looks like &SS; is something used in coding from what I can see from a quick search .. so perhaps that’s confusing our forum software?
CSP & SS Act 2000 seems to work fine ...
Thankfully, the LA has agreed with us that a proper decision notice should have been issued. Of course we still have to establish that it actually meets the criteria for specified accommodation but we feel quite hopeful on that. Thanks to everyone for their comments.
My further thoughts are that there will be a small number of people who fit the criteria for any of the specified forms of accommodation and would also be entitled to partial Housing Benefit but not to Universal credit, perhaps if they are earning or have other income. They would have to make a claim for HB, but it would be direct, not through the route of a UC claim, ticking a box about supported accommodation and then being directed to claim HB. Therefore there must be a procedure for assessing a direct HB claim (possibly by writing out to find out about the level of support, possibly through the LA contact with Registered Social Landlords ) and there must be a proper decision notice sent out to them. In any case we have started the process by writing to the LA to say there has been no decision on his claim, so I will keep you posted.
All claimants in supported accommodation should claim HB from the Council in the normal way or, if still on ESA(ir) etc, claim via DWP and an input document will be generated - same as it was before UC came along. The only difference in procedure since UC rolled out is that UC claimants don’t have the option of claiming HB through the DWP: the UC IT system was not designed to support the input document process and HB Reg 83(4) was therefore not amended to include UC.
Informally, as a sort of common sense liaison procedure, DWP will generally defer to the LA about whether someone does or does not occupy specified accommodation. If the Council has signposted the claimant to DWP, UC should be assessed on the basis that the people who know what they are talking about say it’s not specified accommodation. This does of course rely on the claimant selecting the right option on the housing costs screen - DWP normally won’t query that.
A problem arises in certain situations:
- when the claimant is not already on UC for living costs and has no inclination to claim it if s/he can avoid it, or wouldn’t qualify anyway without a housing element as in Ruth’s last post.
- when the eligible amount would differ between HB and UC. This will be the case if the claimant believes that s/he occupies exempt accommodation (as distinct from any other category of specified accommodation) and the landlord is not a registered HA
- more rarely when the claimant has a significant amount of income other than earnings that would make the UC means test less generous than the HB means test
In any of the above scenarios, the claimant firmly believes that s/he occupies specified accommodation. S/he tries to claim HB and the Council says it’s not specified accommodation. Should s/he get a decision and a right of appeal? I think so but can see why some would say there is no claim and therefore no decision
BTW: why can’t I post or edit ” CSP&SS; Act 2000” without a semicolon appearing in it?]
Looks like &SS; is something used in coding from what I can see from a quick search .. so perhaps that’s confusing our forum software?
CSP & SS Act 2000 seems to work fine ...
Thanks, I’ll try to remember to use spaces in future!