Inspecting the inspectors (2008)

 

In the latest of an occasional series of articles on the decisions of social fund inspectors, David Simmons considers some recent cases about capital, repeat applications and budgeting loans.

The latest Digest of Decisions published by the Independent Review Service for the Social Fund (see issue 37 of the IRS Journal) includes some interesting cases relating to the often contentious issues of:

Decisions by Social Fund Inspectors (SFIs) are not legally binding but give a useful insight into the rights and wrongs of decision making. The numeric case references are those given in the Digest.

The amount of a CCG which can be awarded is reduced by any capital a claimant (and any partner) has in excess of £500 (£1,000 if the claimant or partner is aged 60 or over). Capital is defined and calculated in accordance with the rules relating to income support (IS), income-based JSA, or pension credit, depending on which benefit is in payment.1 Social Fund Direction 27

A CL can only be awarded if a person has insufficient resources to meet immediate short-term needs.2 Direction 14(b)This includes any capital which is available to be used by the claimant.3 Paragraph 4101, Social Fund Guide There is no definition of capital for these purposes.

The appellant, who was aged 57 and had various health problems, requested a CCG for a cooker, bed and various other household items. Her only capital was a joint share of her former home, which was valued at £7,000. The DWP decided that although she satisfied the criteria for a CCG award amounting to £940, this could not be paid because of her capital. The appellant challenged this on the grounds that she had no access to the capital.

The SFI decided that the DWP decision was correct because the appellant's capital had to be calculated in accordance with the IS regulations and included the value of her share of the property, whether or not she had access to the funds. He decided, however, that the appellant should have been awarded a CL for a cooker and a bed. In contrast to a CCG, a CL is not affected by capital which is not immediately accessible.

The appellant applied for a CCG of £750 for a cooker, washing machine and sofa. He was in receipt of IS but had been assessed as having 'notional capital' of £10,500 and was refused a CCG by the DWP and the SFI because of this. He had spent the money on removal costs, a family holiday and repaying unspecified debts (£8,000).

Note that the DWP and SFI were not bound by the IS decision relating to notional capital, but were entitled to decide that the appellant had notional capital based on the evidence and their own enquiries. Note also that although a CL was not considered in this case, the notional capital rules do not apply to CLs because by definition, such capital is not available to an applicant. This is confirmed in a separate article in Journal 37 (see page 12).

A CCG or CL cannot be awarded if the application was made within 26 weeks of a previous CCG or CL application for the same item or service which was either awarded or refused, unless there has been a relevant change of circumstances.4 Social Fund Direction 7

The appellant requested a CL for a cooker, fridge and washing machine. Later on the same day, he requested a CCG for the same items. The DWP refused the CL because there was no evidence of serious risk to his health or safety, and refused a CCG because of the 26-week rule. The SFI decided that the 26-week rule did not apply to applications made on the same day. They are treated as made at the same time by the SF (Applications) Regulations 1988, and the 26 weeks only begins to run from the day after the initial application was made.

The appellant requested a CCG on 30 June, which was refused on 12 July. He reapplied for the same items on the following 2 January. The application was refused on the basis of the 26-week rule. The SFI reversed the decision, holding that the rule did not apply because there were more than 26 weeks between the applications. The DWP had wrongly used the date of the initial refusal as the starting point for the 26-week period.

The appellant requested a CCG on 9 January and made a further application for the same item on 12 January. The DWP refused the first application on 15 January. The second application was refused on 16 January on the grounds that the 26-week rule applied. The SFI reversed the decision, holding that the rule did not apply because the first application had not been decided when the second application was made.

The appellant applied for a CCG for a bed and bedding because of incontinence. This was refused on the grounds that he had applied for and been awarded a CCG for the same items within the previous 26 weeks. On review by a SFI, the DWP failed to provide copies of the papers relating to the first application because there was a delay in retrieving them from a remote storage facility. The SFI refused to apply the 26-week rule without conclusive evidence that there was a previous application for the same items.

Note that this approach is confirmed in a separate article in Journal 37 (see page 12), which also states that computer records of an application (in contrast to copies of the application form) are unlikely to be detailed or accurate enough to establish that the application was made for the same items, and that evidence from the applicant about this and whether there have been any relevant changes of circumstances may also be unreliable.

When deciding the amount of BL to award, the DWP must take into account the 'maximum amount' applicable to a single applicant set out in local guidance, as advised by the Secretary of State. 5 Social Fund Direction 7A BL is only payable to an applicant who, or whose partner, has been in receipt of a qualifying benefit throughout the 26 weeks prior to the date the application is decided, disregarding breaks of 28 days or less.6 Social Fund Direction 8

The appellant, a single person, requested a BL of £1,500 for clothing and home improvements. He was awarded £300, the 'maximum amount' for a single person set out in local guidance. The SFI increased this figure by 8 per cent to £324, because there was a projected 8 per cent under spend on the budget. The guidance on the 'maximum amount' was not legally binding and could be increased if the budget allowed for this.

The appellant was refused a BL because he had not been in receipt of a qualifying benefit for 26 weeks. The DWP computer system showed that he had only been receiving income-based JSA for a month. He had stated on his application form that he was in prison prior to that but had previously been getting benefit for more than 26 weeks. He requested a review, but was not offered an interview on the basis that he could not satisfy the 26-week rule.

The SFI established, however, that he had been in receipt of IS via clerical payments for more than eight months before going into prison for less than 28 days. He therefore did satisfy the 26-week rule, as the period in prison was disregarded. The DWP should have made proper enquiries (e.g., via a review interview) to ascertain the correct circumstances.

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