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Lost HB Forms
Is there anyway of challenging a decision refusing to backdated HB.
Client made a claim for HB in March 2011. Client received nothing. Client called a few months later and was told they are dealing with her claim. End of August she called again and she was told that no claim was recorded on system.
Client made a further claim in September and requested backdating, however this has been refused. (Client has not evidence that she made the claim in March).
Anyone got any ideas how this can be challenged?
Client made a claim for HB in March 2011. Client received nothing. Client called a few months later and was told they are dealing with her claim. End of August she called again and she was told that no claim was recorded on system.
Ithink the only way to challenge this is to provide some sort of record confirming, on the balance ofprobability, there was a claim made in March.
Few questions, was the March claim made directly to the LA? Was there any record of the contact mad prior to August?
Client made a claim for HB in March 2011. Client received nothing. Client called a few months later and was told they are dealing with her claim. End of August she called again and she was told that no claim was recorded on system.
Ithink the only way to challenge this is to provide some sort of record confirming, on the balance ofprobability, there was a claim made in March.
Few questions, was the March claim made directly to the LA? Was there any record of the contact mad prior to August?
Hi,
Well, client states she called the office to chase the claim, we would have to request telephone records to see if this has been recorded. The application was sent via post and client has no evidence of this.
In my view, the basis of appeal should be two fold:
1) the commencement date of HB is wrong; it should be with reference to the claim made in March (thus completely circumventing any backdating consideration); or alternatively,
2) the clmt has continuous good cause for not claiming earlier and is therefore entitled to backdated HB (good cause then having to be demonstrated).
As for the whether or not a claim was made in March, that is entirely down to the evidence and/or credibility of the claimant. If a claim really was made in March, any subsequent delay in enquiry doesn’t matter - there is no time limit on deciding a claim once a claim is made. If the LA has no record, that doesn’t mean a claim was not made - that would be a question of it being mislaid. But, a mislaid claim is still a claim that must be decided - any further “claim” forms don’t count as claims, they are merely further information in support of the (mislaid) claim.
NB: If a claim was made in March, it is arguable that backdating cannot be considered - backdating relies on there being a failure to claim earlier.
In my view, the basis of appeal should be two fold:
1) the commencement date of HB is wrong; it should be with reference to the claim made in March (thus completely circumventing any backdating consideration); or alternatively,
2) the clmt has continuous good cause for not claiming earlier and is therefore entitled to backdated HB (good cause then having to be demonstrated).
As for the whether or not a claim was made in March, that is entirely down to the evidence and/or credibility of the claimant. If a claim really was made in March, any subsequent delay in enquiry doesn’t matter - there is no time limit on deciding a claim once a claim is made. If the LA has no record, that doesn’t mean a claim was not made - that would be a question of it being mislaid. But, a mislaid claim is still a claim that must be decided - any further “claim” forms don’t count as claims, they are merely further information in support of the (mislaid) claim.
NB: If a claim was made in March, it is arguable that backdating cannot be considered - backdating relies on there being a failure to claim earlier.
Sorry Kevin I am confused? Client is saying she did make a claim in March, how can we then argue she has good cause for not making a claim earlier? (Sorry heavy day!)
I have read that the question of backdating only arises when HB is requested for a past period for which the claimant has not already claimed HB/CTB. Client is saying she has already made a claim but has no evidence of this…does that mean that backdating cannot be requested (my head hurts).
What you are effectively saying is that client has continuous good cause for the ‘late’ current claim on the basis that her understanding was that the claim she had made in March had been received and was being processed. Now she has discovered the claim was apparently not received and the information she was given previously (that the claim had been received) was erroneous, hence she is making a late claim (if that makes sense).
Does she have an itemised telephone bill covering the period in question, which would show the calls were made? It would be useful.
What you are effectively saying is that client has continuous good cause for the ‘late’ current claim on the basis that her understanding was that the claim she had made in March had been received and was being processed. Now she has discovered the claim was apparently not received and the information she was given previously (that the claim had been received) was erroneous, hence she is making a late claim (if that makes sense).
Does she have an itemised telephone bill covering the period in question, which would show the calls were made? It would be useful.
Thanks Kevin yes that makes sense now…Just spoke to the client over the phone.
It appears the claim was suspended and then eventually closed because she failed to provide them with evidence of income, for example evidence of husbands self employment, child benefit, child tax credit etc.
Client made a new claim and requested backdating because she felt it was unfair that she could not obtain the evidence they were requesting. Old claim was closed in July/August…could this be good cause? :o/ I think I liked the first version…
I think success is going to hang on why she didn’t respond to the LA’s request for additional info. You indicate she has told you she couldn’t provide the info- why not? Did she contact the LA to explain what the difficulty was, etc? Were there health issues or some other factor which prevented her from understanding what was needed? I think it really is going to depend on the circumstances.
I think success is going to hang on why she didn’t respond to the LA’s request for additional info. You indicate she has told you she couldn’t provide the info- why not? Did she contact the LA to explain what the difficulty was, etc? Were there health issues or some other factor which prevented her from understanding what was needed? I think it really is going to depend on the circumstances.
It was simply because she could not obtain the evidence. She said that the department she requested the evidence from, HMRC and husband providing self employment record etc took forever to obtain.
I think that this would be difficult to challenge because it would have been an incomplete claim. Looking at the time limit from when client made the claim and when it was withdrawn, it looks like the LA gave the client sufficient time to provide the evidence…
Thanks for all your input…great help. Just wish i was told the full story from the beginning!!
Its a pity she didn’t notify the LA of the difficulties (and obtain an extension of the time limits) but it’s probably still worth a shot. A sob story letter along with all the income evidence covering the relevant period and the new claim form may do the trick.
Its a pity she didn’t notify the LA of the difficulties (and obtain an extension of the time limits) but it’s probably still worth a shot. A sob story letter along with all the income evidence covering the relevant period and the new claim form may do the trick.
Client did make a new claim with all the evidence. She requested the claim be backdated but it was refused. I am looking at ways we may be able to appeal and challenge further.
From what the client is saying she did keep them informed, but we are talking 4-5 months. It seems the LA did give an extension, but once this was granted the client simply failed to keep them informed further. I think it would be a long, long, long shot, don’t you think?
Probably. Again, it will depend on the circs. I suppose there was no illness in the family or other stressful situation which would have affected your client’s ability to request further extension from her LA on getting the evidence to them/keep them informed of progress?
Probably. Again, it will depend on the circs. I suppose there was no illness in the family or other stressful situation which would have affected your client’s ability to request further extension from her LA on getting the evidence to them/keep them informed of progress?
No unfortunately not, I have queried this. She states she simply could not obtain the evidence required in the time given.
The onus is different, depending on whether the council are terminating an existing claim, or refusing an initial claim. I read the initial post as saying the latter is the case here?
The onus is different, depending on whether the council are terminating an existing claim, or refusing an initial claim. I read the initial post as saying the latter is the case here?
Yes the client moved from one borough to another and made a new claim for HB & CTB.
Clients husband was self employed at the time, however worked little in the winter months as he is a gardener. The LA wanted evidence of his income, child benefit and child tax credit. I think the problem was with providing evidence of employment income.
It appears the LA gave the client ample opportunity to provide the evidence (3-4 months), however client failed, hence the claim was suspended and subsequently terminated.
Client made a further claim in September, providing all evidence required and requested her claim be backdated to March, however this was refused.
So are you saying the claimant was receiving HB up to March but it stopped because of her failure to cooperate with enquiries?
In these circumstances, there is a very high chance that the authority did not handle the process correctly. They have two options:
- suspend and then terminate the award, or
- make an adverse inference about the claimant’s substantive circumstancesFrom the appellant’s point of view, there are pros and cons associated with both.
The suspension/termination mechanism requires the Council to comply with complex requirements in D&A Regs 11 to 13. It sounds like there might have been a regular review or “intervention” in your client’s case, and the Council may have asked for some evidence. If the claimant failed to provide what was asked for within a month, the Council might then have suspended her HB and issued her with a further request for specific evidence, which should also have explained that the claimant is entitled to suggest that the evidence does not exist or is not reasonably accesiible to her. If they didn’t say that, they failed to adhere to the procedural formalities that lead up to termination. On the negative side, if they did terminate correctly any right of appeal is quite narrow - the issue is whether that was the right thing to do at the time, irrespective of whether the claimant has produced the evidence subsequently. Councils so often get this wrong:
- failure to specify what evidence they require, for example terminating because they have been unable to arrange a home visit
- failure to spell out the other two options apart from providing the evidence (i.e. it doesn’t exist/I can’t get it right now)
- arbitrarily “cancelling” benefit without any clear idea what legal procedure they are relying onIf the Council has made an adverse inference, the procedure is not as rigid so there is less chance they have got it wrong on a technicality. The Council is entitled to say, after a period of trying to get evidence from the claimant, “we cannot be sure that you still qualify for benefit, so we will assume you don’t” and apply a worst case scenario inference to the item or items that have not been proved - in this case, the income is too high. The advantage of this from the claimant’s point of view is that the appeal can rely on the substance of the inference: you inferred that I have too much money, well I don’t. That can be proved at any time during the course of the appeal, it doesn’t matter that the claimant was originally slow to cooperate.
Whether a claim for backdating is an appropriate way to react to an event like this has always been a messy point. There is authority in UT/Commissioners’ decisions for a Tribunal not to stand on ceremony - don’t let form triumph over substance. The claimant can probably say “I submit that the Council was wrong to end my HB when it did, but alternatively if I lose on that point I submit that I have had continuous good cause for failing to claim since my last award ended”.
Do you still think she would be able to appeal for having continuous good cause for failing to claim earlier? As in could not obtain P60 to provide evidence of income. I believe the Inland Revenue took their time sending the document? Not sure client kept the LA informed though…