Housing benefit suspensions

Jon Shaw looks at when housing benefit (HB) awards can (and cannot) be suspended and then terminated.

The HB legislation contains provision for awards to be suspended and eventually terminated.1Part III Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001, No.1002 (‘HB(DA) Regs’) This may happen, for example, if a DWP benefit that ‘passports’ a claimant to her/his maximum HB ends.2The passporting benefits are of course income support, income-based jobseeker’s allowance, income-related employment and support allowance, pension credit and (for those in temporary or supported accommodation) universal credit. The local authority must then have details of the claimant’s financial circumstances to calculate her/his ongoing HB award – ie, on the basis of low income.3Because the regulations no longer require all of the claimant’s income and capital to be disregarded. See, for example, Sch 4 para 12, Sch 5 para 4 and Sch 6 para 5 Housing Benefit Regulations 2006, No.213.

Suspension need not necessarily follow, especially if the claimant has access to good advice. A brief letter from the claimant explaining her/his current situation (including if s/he is completely without income) may be sufficient to allow the HB award to continue without suspension, or any suspension that has already happened to be lifted quickly.

However, it remains that the claimant’s HB award can be suspended, and eventually terminated. If this procedure is followed correctly, then the HB award can lawfully be superseded and brought to an end, even if the claimant’s circumstances mean that s/he still met the conditions of entitlement throughout.4That the termination is a supersession decision was confirmed by R(H) 4/08. The process that the local authority must follow is set out below.

One ground of suspension is where ‘it appears to the relevant authority that an issue arises whether… the conditions for entitlement to housing benefit… are or were fulfilled.'5Reg 11(2)(a) HB(DA) Regs The suspension is not itself a decision on entitlement, and so cannot be appealed.6Sch para 5 HB(DA) Regs However, before the award can be validly terminated, the claimant must also have failed to comply with an ‘information requirement’.

Information can be required if an award has already been suspended, or from someone ‘in respect of whom a question has arisen in connection with his award of benefit’.7Reg 13(2) HB(DA) Regs The claimant must then either provide the requested information, or satisfy the local authority that it either doesn’t exist or can’t be provided. The claimant must be given at least one month to provide the information, or such longer period as is considered necessary.8Reg 13(4) HB(DA) Regs And, crucially, the local authority must clearly notify the claimant of what is required, and the time limit to provide it.9Reg 13(3) HB(DA) Regs

Once the time allowed to provide information has passed, the local authority can then terminate the HB award. The termination takes effect from the date on which the award was suspended, and so should not give rise to an HB overpayment.10Reg 14 HB(DA) Regs; CH/2995/2006

CPAG regularly hears of cases where this procedure is not followed correctly – for example, where claimants are immediately sent a letter informing them that their HB award has ended due to their employment and support allowance (ESA) stopping. In cases such as this, the claimant can either appeal or request a revision of the HB decision. As HB has no ‘mandatory reconsideration’ requirement, either option is available immediately. The argument is simply that the conditions of entitlement are still met (ie, where that is indeed still the case, based on the claimant’s current circumstances), and the procedure above has not been followed – so there are no grounds to supersede the award and remove it. It may be necessary to contact the claimant’s landlord and explain the situation, given rent arrears will be accruing.

In practice, claimants may not seek advice until they have several months’ rent arrears, and they also may not have any letters from the local authority or a clear memory of what happened. In such cases, the first priority will be to establish whether the procedure above has been followed correctly or not. The risk of a speculative challenge is that if the local authority can show that the decision to end HB was validly made, then the claimant may miss out on benefit if s/he does not also make a new claim while challenging the decision.

The Upper Tribunal has held that a failure to follow the correct procedure invalidates the subsequent supersession decision, unless there are other grounds to supersede the award.11A v London Borough of Hounslow [2008] UKUT 13 (AAC) and VW v London Borough of Hackney (HB) [2014] UKUT 277 (AAC) The procedure includes telling the claimant:

If an information requirement is simply impossible to meet (eg, asking a claimant in her/his first week of employment to provide three payslips), then arguably a claimant cannot ‘fail’ to meet it. And if the local authority (or First-tier Tribunal) accepts that someone didn’t actually receive a request for information, then s/he cannot fail to respond to it.12AA v London Borough of Hounslow [2008] UKUT 13 (AAC)

Given that the failure to follow this process is arguably an official error, a revision request can also be made in respect of historic gaps in HB entitlement.13Reg 4(2) HB(DA) Regs However, should the local authority refuse to revise a decision it made and notified to the claimant over 13 months previously, the only remedy will be judicial review.14PH and SM v SSWP (DLA) (JSA) [2018] UKUT 404 (AAC) is not authority that there is a right of appeal against a refusal to revise a HB decision where there is an arguable official error, as it only applies to benefits for which there is a mandatory reconsideration requirement.

If the local authority has met the requirements above to validly terminate an HB award, then it is possible that all is not lost. However, the only recourse is to attempt to convince the local authority to extend the time limit to provide the information (or explain why it cannot be provided). This can arguably be done after the time limit has already run out and would then give grounds for the termination decision to be revised, if there was still HB entitlement.

However, any extension of time is at the discretion of the local authority, and not appealable to the First-tier Tribunal.15Reg 13(4)(a)(ii) and Sch para 5 HB(DA) Regs As such, advisers will need to consider a threat of judicial review. This might be a realistic prospect where there was no practical way the claimant could have complied with the information requirement – eg, due to hospitalisation soon after receiving it, or if the request was made in a format that was inaccessible to the claimant. In any event, the claimant should be advised to consider making a new benefit claim as well, in case the time limit is not extended and any challenge to that fails.

Where HB has been terminated, any claimant who is in temporary or supported accommodation,16See p83 of the Welfare Benefits and Tax Credits Handbook 2019-20 for the definitions. or prevented from claiming UC by the ‘SDP gateway’ (see Bulletin 269), should be advised to make a new HB claim to protect her/his position. Any appeal against a refusal to backdate such a new claim should also be treated as a request for revision of the decision terminating the previous HB award, allowing the correctness of it to be considered.1717 R(JSA) 2/04; CH/3009/2002

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