Bedroom tax loophole - hadn’t thought of this one before

Thanks Shawn!
I should have said guidance rather than policy - HB U1/2014 is pretty clear at Para 2 “Instead their eligible rent MUST ( my emphasis ) be determined in accordance with regulations 12 and 13 as set out in Paragraph of Schedule 3 to the Consequential Provisions Regulations.”

I don’t have time to fight battles that do not need fighting! Also as I said before, why close a “loophole” unless it exists in the first place.

Anyway, peace has now broken out between us - he accepts the argument and like all LA’s I expect, they are identifying cases - 450 so far apparently, not an insignificant number.

Should stress that in this case we, along with most if not all authorities, are following the guidance.

If our subsidy paymasters the DWP tell us to do it and it is in the interests of the customer, then of course we will do it.  From what i recall, the original poster was questioning the ‘having your cake and eating it’ position as regards guidance and legislation, which seemed a fair comment to me.

I posted because it seemed to be a very harsh decision to delete an account, for what seemed like not toeing the RN line (and being a bit rude with it!) but the clarification from Shawn does explain this.

:-)

Guidance is useful to particularly dense/ complex legislation but of course I know the difference and as far as I am aware I have never used guidance at an appeal! To make a general point that all welfare benefit workers use guidance when it suits them is just ridiculous….

Anyway, nuff said, lets move on… like all of you out there I have good relations with our LA HB department as we can resolve problems quickly if possible. Occasionally we fall out, but we all kiss and make up at the end.

There seem to be a number of potentially contentious issues surrounding the pre 1996 cases.

One is whether or not any DHP’s paid on account of wrongly imposed bedroom tax can be recovered.  In my view they can’t because there was no error in assessing the DHP, the error was in assessing housing benefit. The circumstances in which overpaid DHP’s can be recovered is prescribed by DFA Regulation 8(2)

“(2) Without prejudice to the generality of paragraph (1) above, a relevant authority
may, on any such review, cancel the making of further such payments and recover a
payment already made where that authority has determined that–
(a) whether fraudulently or otherwise, any person has misrepresented, or failed
to disclose, a material fact and, as a consequence of that misrepresentation or
failure to disclose, a payment has been made; or
(b) an error has been made when determining the application for a payment, and
as a consequence of that error, a payment had been made which would not
have been made but for that error.”
 
DHP’s may have replaced the discretion under Regulation 69(8) of the 1987 Regulations to increase the amount of HB paid to a claimant, but the current DFA regime is to a large extent self contained, entitlement to Housing Benefit being nothing more than a condition of entitlement to be considered for a DHP award.

The Discretionary Fincancial Assistance Regulations were made under S69 of the Child Support Pensions and Social Security Act.  The enabling legislation for HB is S134 of the Social Security Administation Act 1992 so DHP’s are clearly not awards of housing benefit. 

There is no provision in the DFA regulations for treating retrospective payments of benefit or other income as a change of circumtances which has a retrospective effect on entitlement.  There are such provisions in the HB Regs [CF HB Reg79(6) and (7)].  If there was such a provision in the DFA Regs a large proportion of DHP’s would effectively be paid as loans.

The other potentially contentious issue could arise where LA’s have weeded old records and deleted computer data making it very difficult to establish that the claimant meets the condtions for transitional protection.

In my view it will be arguable that LA’s in that position will have a duty to make every effort to retrieve or replace that data and/or collect secondary evidence in order to build as accurate a picture as possible [ R(IS)11/92, CH/1757/2009]

I suggest that anyone dealing with a recalcitrant LA now submits a late appeal against the original decision (which would have been made in March 2013) to impose the bedroom tax.

I know that the original decision can be revised at any time on the ground of official error, but there is no appeal against a refusal to do so if that decision was notified more than 13 months ago [R(IS)15/04].  Its therefore important to get the appeal in now if there is any indication that the LA may not play ball.  You will at least be in a position to get the LA to justify itself to a Tribunal.  The only other option would be JR with all the expense involved.

Time for the Ophelia to reappear?

Gareth Morgan - 23 January 2014 05:00 PM

Time for the Ophelia to reappear?

For anyone wondering what on earth Hamlet has got to do with any of this.

http://homepage.ntlworld.com/ma.rathfelder/Benefits/Ophelia.htm

Edited to fix link

Apparently the link didn’t work so, hopefully, the new one will.

If you didn’t already think the slaughter of WW1 was incomprehensible, here is a case where Germany and Britain conduct court proceedings in a polite and orerly manner about the ownership of a boat while at the exact same time their unfortunate soldiers are killing each other by the hundreds of thousands in Belgium. Truly absurd.

I think verdun here.

regs are out ...

The Housing Benefit (Transitional Provisions) (Amendment) Regulations 2014

http://www.legislation.gov.uk/uksi/2014/212/made

Guardian guide to bedroom tax loophole by HB Anorak -

http://www.theguardian.com/housing-network/2014/feb/06/bedroom-tax-loophole-guide-councils-housing-associations

Hmm, it needed to lose some words to comply with the limit but I think a bit of refinement might be in order there.  I’ll get onto them

http://nearlylegal.co.uk/blog/2014/02/negative-instrument/

here’s the EDM .. only 4 signatures at the moment -

http://www.parliament.uk/edm/2013-14/1057

Stainsby - 23 January 2014 11:43 AM

The other potentially contentious issue could arise where LA’s have weeded old records and deleted computer data making it very difficult to establish that the claimant meets the condtions for transitional protection.

Notwithstanding the previous comments in this thread about the merits of relying on guidance, I note that A1/2014 says:

Q2: What happens in situations where the LA’s records do not go back to 1996 to help to identify the affected cases? Examples of what the LA could use in “balance of probability” decisions

As long as LAs take proportionate steps to identify affected claimants and verify their exemption from the size criteria this will be seen as sufficient. LAs should get as much information as possible and err on the side of caution. The regulations entitle LAs to request such documentation as they think reasonably necessary. Where a claimant is unable to provide documentation LAs will need to make a judgment based on the evidence available.[...][...]

I’m unclear on what “err on the side of caution” means, but it might be read as: err on the side of assuming the exemption does not apply.

However, CAB specialist support have provided an opinion which is essentially the opposite, boiling down to “We do not think that the emphasis is necessarily on the claimant because the LA are the ones who must show that they made a legally correct decision to reduce benefit in April 2013”.