reg 36(7)(b) D&A Regs 2013; Late notification of housing costs upon end of TA

Dear all

Couldn’t find anything quite on point using the search function so here goes.

Client was in Part VII TA at time of his application for UC in June 2020 and his HB therefore continues whilst his legacy benefits stop. He is paralysed from the waist down but has no mental health conditions. He has LCWRA (and indeed double enhanced PIP) from the start of his claim and journal comms are minimal.

In Feb-March 2023 AP he moves into social housing with his LA. He claims CTR apparently on the joint HB/CTR claim form and seems to have thought that covered his new housing costs.

In June-July 2023 AP he declares a change of address and says no housing costs.

Soon after, the LA inform him of his rent arrears.

He then redeclares a COC on the journal (so within 13 months) and is eventually awarded UC from July-August 2023 AP onwards.
So 5 months of arrears accrue by the time HCE is in payment.

There are no material changes to his UC award within the post-move period, so there is no opportunity to latch onto a s.10 supersession decision and make an appropriate application for any grounds revision.

There are no communications or data on the journal except for the June declaration of ‘no’ housing costs.

Only the third and fifth reg 36 D&A conditions are really in issue:

‘(4) The third condition is that the Secretary of State is satisfied that it is reasonable to grant the extension.

(6) The fifth condition is that the Secretary of State is satisfied that, due to special circumstances, it was not practicable for the applicant to give notice of the change of circumstances within the relevant notification period.

(7) In determining whether it is reasonable to grant an extension of time—

(a)the Secretary of State must have regard to the principle that the greater the amount of time that has elapsed between the end of the relevant notification period and the date of the application, the more compelling should be the special circumstances on which the application is based;
(b)no account must be taken of the fact that the applicant or any person acting for them was unaware of, or misunderstood, the law applicable to the case (including ignorance or misunderstanding of the time limits imposed by these Regulations); and [...]’

1. I’m wondering if, despite reg 36(7)(b), there is any scope for running an argument along the lines of ‘I didn’t know that my rent was not being paid’ or ‘I thought the council was paying my rent’. The SSWP’s argument, I gather, would be ‘really this is ignorance of obligations to declare changes of circumstances within the assessment period and/or ignorance of what amounts to a change of circumstances’ (and I certainly see the force in that given the apparent intention of reg 36).

2. The other point I note (and this may be grasping at straws) is that within the structure of reg 36, you have the 5 conditions to meet for the extension to be granted. The prohibition on considering misunderstanding (to me at least) seems to be confined to the third condition: ‘that the SoS is satisfied that it is reasonable to grant the extension’.

So might it be argued that the lack of knowledge amounts to special circumstances sufficient to meet the fifth condition, and THEN an assessment of reasonableness is required, without having regard to the ignorance of law point, allowing a relatively broad view of the client’s circumstances to be taken.

3. Alternatively, on damage limitation, is it possible to argue that the change of address declaration thus securing one additional AP more of HCE.

Perhaps there is a complaint against the LA for failure to advise appropriately following allocation of social housing but am keen to try to take an appeal forward if possible.

Thanks as per

Alex

I think Reg 36(7)(b) is aimed at situations where the claimant didn’t realise a life event would increase their benefit entitlement and therefore didn’t mention it to anyone:

- didn’t realise they would get an extra bedroom if they started receiving overnight care
- didn’t realise that a special guardianship arrangement would allow them to claim for a child

In your case, it’s more that the claimant was misled by the facts leading into to the change of address that his rent would continue to be met by HB.  Yes it does involve ignorance of the law around how HB and UC interact in such circumstances, but it’s not as if he neglected to declare his rent to anyone at all.

His case will weaker if the Council notified him promptly that his HB was terminating and why.  If they did not, that strengthens his case and also gives him Plan B as back-up: a complaint against the Council.

Thanks very much, that’s really helpful. I suppose that provision has been knocking around in various forms since at least the 1999 D&A Regulations but feels like it would have much broader scope within UC given that ‘the law requires you to declare relevant changes of circumstances before the end of the AP’ could relate to 1001 different things. Much appreciated.

Alex