Safeguarding and Housing Benefit
Is anybody aware of any safeguarding guidance built into HB anywhere?
And with the same client; has anyone any thoughts around whether the duty to notify a recipient of the possibility of persuading the LA that they cannot obtain information required under reg 13(4) HB & CTB (Decisions and Appeals) Regs (information required when an award might be suspended) might be able to be read into reg 86 HB regs (general power to require information on new claims or during a claim) for a new claimant?
I think such an argument would be Human Rights/Public Sector Equality Duty compliant and I’m minded to run it but thought I’d throw it to the floor and see what folk think.
Yes, I think something like the Reg 13(4) principle is implied into Reg 86 by the word “reasonably”.
A bit more context would help: what is it that the Council has asked for and why do you think the claimant should not have to provide it?
It was bank statements, we have; eventually, provided them, but the claim was closed after the standard month. No consideration of whether my vulnerable client might need additional time to get them together or; as was the case no attempt to clarify with the claimant that it was their duty to provide them rather than the council writing to the solicitor and bank.
Perversely the DM has accepted the late appeal as duly made because client has mental health problems and their advocates let them down, however has refused to extend the time limit to provide the statements on the same basis.
Edit to include that R(H)3/05 means the Tribunal can determine the claim rather than tell my client to bog off. I am pleased![ Edited: 5 May 2016 at 01:22 pm by Dan Manville ]
One useful point to put to the Council at this stage might be: have they decided that the claim was defective because the info requested was specifically referred to on the form or accompanying instructions? If so, the right of appeal might be restricted to whether that was so at the point when the decision was made (but see note below about case law).
If the info was supplementary to that requested on the form/instructions, the Council can only refuse benefit by way of an adverse inference: in the absence of evidence to the contrary they assume that the unproved matter is to the claimant’s maximum disadvantage. This is better from the claimant’s point of view because the right of appeal is then on the grounds that the inference was inaccurate, with evidence to demonstrate that - it gives the claimant another bite of the cherry.
Moreover, while there is as yet no definitive case law (as far as I am aware) on the scope of an appeal against a “defective claim” decision, there is a hint of which way the UT will go when a case turns on it. In CH/3564/2007 the Upper Tribunal notes the “inclarity” of the scope of a claimant’s right to dispute a defective claim decision:
“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 Judge tentatively leans towards the view that the recon/appeal does give the claimant a second bite of the cherry without needing to decide the matter: that was because, in CH/3564/2007, the nature of the decision made by the Council was more in the way of an “adverse inference” than a defective claim.
HB Anorak - 05 May 2016 01:21 PM
: that was because, in CH/3564/2007, the nature of the decision made by the Council was more in the way of an “adverse inference” than a defective claim.
That’ll be due to the Tribunal’s findings in R(H)3/05 as well.
Thanks Peter that is very useful.
I don’t suppose you’ve got a copy of CH/3564/2007 you could share? It isn’t cited in Findlay and doesn’t show up here or on the UT database.
The Brunswick Centre, Kirklees & Calderdale
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- CH_3564_2007.doc (File Size: 35KB - Downloads: 300)
R(H) 3/05 established that the Council cannot just not make a decision on a defective claim - every HB claim has to proceed to some kind of firm conclusion with an appealable decision, even that decision involves an adverse inference.
The HB Regs were amended following R(H) 3/05 to remove the provision that absolved councils from the requirement to make a decision on a defective claim and the meaning of “defective claim” was altered as well - the amended Reg 83 seemed to contemplate that “defective claim” could be a decision in its own right, as distinct from an adverse inference. At the same time the Decisions and Appeals Regs were amended to allow a right of appeal against this new kind of decision. But that still left some uncertainty as to what is up for grabs in any such appeal, hence the comments in CH/3564/2007.