As was reported here, we have been working very hard on a case where a tenant ceased claiming housing benefit under the old rules. Then, three weeks later claimed again which in our opinion should have gone onto the new higher LHA rate. However, Cardiff council refused and treated the new claim as continuous from the old and therefore the tenant continued to receive the lower amount of benefit (in this case there was a considerable difference between the two rates).
We spent literally hours on this case working until midnight for many nights which is why we have been a little quiet lately.
Anyway, despite been all ready for our day at the tribunal which was going to be this Wednesday (21/6/10), Cardiff council have withdrawn and are now revising the decision and the tenant will be on the LHA rate from 9 November 2009.
I think therefore, though there is no decision, it is fairly certain that there is a high chance of success should anybody wish to take a similar case further.
In this case, there was a fundamental error on the part of the council, in that the reason they gave for continuing the benefit was because the tenant continued to receive income support during the three weeks he was not claiming housing benefit.
“On the 18th November 2009 the decision of the 30th October 2009 was revised as the relevant local authority had made an assumption on 30th October 2009 that the claimant was not entitled to Housing Benefit or Council Tax Benefit; however, it is now clear that he continued to be entitled because Income Support was still in payment…”
In addition, they included in the bundle regulation 77 which is headed “Date on which Housing Benefit is to end.”
The relevant part of regulation 77 reads “A claimant’s entitlement to housing benefit shall cease at the end of the benefit week in which entitlement to income support or income-based jobseeker’s allowance ceases …”
The local authority were therefore saying that because income support never ended, it was not possible for housing benefit to end (even though the tenant had asked for it to end) because of regulation 77.
However, fundamentally, regulation 77 was omitted by regulation 4(4)(a) The Housing Benefit and Council Tax Benefit (Extended Payments) Amendment Regulations 2008 and took effect 6 October 2008. There is therefore no correlation between receiving housing benefit and income support (or JSA) [CH 3736 2006].
To add slight confusion, because of the removal of regulation 77, other than a change of circumstances, there is nothing in the regulations that allows housing benefit to end. Equally, there is nothing in the regulations “requiring” somebody to claim, the regs only describe “entitlement”.
It is therefore submitted that “entitlement” includes a “wish to receive” on the tenants part.
So, although no decision on this question (which is a real shame,) it seems fairly certain a tenant wishing to receive the normally higher LHA rate can stop claiming benefit for at least one week and then reclaim. This new claim should be treated as new and therefore will be a claim under regulation 13C(1) & (2)(a) Housing Benefit Regulations 2006.
(1) A relevant authority shall determine a maximum rent (LHA) in accordance with regulation 13D (determination of a maximum rent (LHA)) in any case where paragraphs (2) or (3) apply.
(2) This paragraph applies where a relevant authority has received–
(a) a claim on which a rent allowance may be awarded, where the date of claim falls on or after 7th April 2008;
Note: I think now that the one week gap could be important because of the way “benefit weeks” work, which run from Monday to Sunday regardless of the day any benefit entitlement ceases. Therefore to avoid argument on this point a gap of greater than one week between claims will ensure there is no continuation of benefit weeks.
Swansea is observing the week’s gap rule.