Regulation 83(12) Housing Benefit Regulations 2006: Backdating

A claim made on or after 6 October 2008 can only be backdated for up to six months, rather than the 52 weeks that was possible before that date. Note that the DWP has said, in the explanatory memorandum to SI 2008 No 2424, that the policy intention is to move to a three-month backdating period, in line with the period introduced from 6 October 2008 for people of pension age. It is introducing the reduction to a three-month backdating period for working age claimants on a staged basis, starting with the introduction of a six-month period, to provide more time to work with stakeholders on helping to mitigate any adverse impact. The Government will monitor the policy change and will review these arrangements at the end of 2009.

For para (12) to apply the claimant must have made a claim for a past period (referred to as a “claim for backdating”); secondly, from a date in that past period up to the date of the claim for backdating the claimant must have had continuous “good cause” for her/his failure to make a claim for HB. If these two conditions are met then the claim for the past period is treated as made on the later of either the first day from which the claimant had continuous good cause, or the day six months before the date of the claim for backdating . So what is to be taken as the date of the “claim for backdating”? Is it the date the claim for backdating is actually made (ie, the date a claimant requests backdating, in writing or by telephone), or is the date to be determined by para (5) above? As the claim for backdating is a claim for HB, it is arguable that the date should be determined by para (5). If this is right, it would produce the same result as in Leicester City Council v LG [2009] UKUT 155 (AAC) , but because of the requirement to show good cause for the failure to claim HB, with a potentially less generous result.

Absent a person having been appointed under reg 82(3) to act on behalf of the claimant, the test of “good cause” applies to the claimant her/himself and not her/his landlord, even where the claimant is in supported housing and the landlord may, in fact, have been assisting the claimant with her/his claims for benefit: CH 1791/2004 para 25.  However, this decision emphasises that in the latter situation the actions or errors of the landlord will not be irrelevant, but have to be viewed from the perspective of whether the claimant acted reasonably in all the circumstances, in particular in allowing his or her landlord to act for her/him.

In the case of a couple (see reg 82(1)), it is for the member of the couple who makes the claim for backdating to show that s/he has “good cause” and it is irrelevant whether the other member of the couple can show good cause or not: CH 3817/2004 para 8.

The period over which the backdating occurs is a past period of up to six months prior to the claim for backdating, not from the original claim for ongoing benefit if this differs. The Court of Appeal in R vAylesbury Vale DC ex p England [1996] 29 HLR 303 held that ordinarily a claim for HB is to be treated as prospective only so an express request must be included if backdating is required. For the position where a request for backdating

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