Please be aware that welfare rights law and regulations change frequently, therefore older Bulletin articles may be out of date. Visit www.cpag.org.uk/welfarerights to see our most recent articles and briefings.

Housing benefit, information and terminations

When can a local authority legitimately terminate entitlement to housing benefit or council tax benefit for failure to provide information? Simon Osborne reviews the relevant law.

Introduction
The legislation
Appeal rights
Reasonable requests and failure to comply
Home visits
Suspension and termination procedures
Conclusion

Introduction
Local authorities have powers to require claimants to provide evidence and information in connection with housing benefit (HB) and council tax benefit (CTB) claims. If the claimant refuses to comply, there are powers to suspend benefit and eventually terminate entitlement. But authorities do not have carte blanche to act as they wish - the powers must be exercised lawfully. Some recent case law has thrown light on what should and should not be done, and what rights claimants have.

The legislation
The basic evidence and information requirements for claimants are set out in regulation 86 of the Housing Benefit Regulations 2006 and regulation 72 of the Council Tax Benefit Regulations 2006 (in this article references for claims by those aged under 60 are used throughout; but the provisions in the rules for those aged 60 or over are identical or very similar). Evidence regarding a very few payments (e.g., from the Macfarlane Trust) cannot be requested, but otherwise no particular evidence is specified and the essential test is one of reasonableness: claimants and recipients are to supply 'such certificates, documents, information and evidence . . . as may reasonably be required by the relevant authority'.

Where the claimant fails to comply, and moreover, where the local authority thinks that the failure is unreasonable, payment of benefit can then be suspended. The relevant rules here are regulations 11 and 13 of the Housing Benefit (Decisions and Appeals) Regulations 2001 ('the Decisions and Appeals regulations'). Under regulation 11, an authority 'may' suspend where, amongst other things, it appears to them that 'an issue arises' about entitlement or as to whether an award should be revised or superseded. Suspension is a discretionary decision and so is subject to the overall requirement for reasonableness, although there is no right of appeal. Similar considerations apply to suspensions under regulation 13, but that is more specifically to do with failure to comply with an information request. If, as part of an investigation under regulation 11, the local authority asks the claimant for further information or evidence, the case then falls within regulation 13. Suspensions under regulation 13 may be applied 'in relation to persons who fail to comply with the information requirements [set out in regulations]'. Also, in regulation 13 cases, the claimant must be notified of the requirements to supply the information concerned within one month or within 'such longer period as the relevant authority considers necessary' in order to allow the claimant to comply. Alternatively, the claimant must satisfy the authority either that the evidence does not exist or that it is not possible for her/him to obtain it.

Terminations of benefit for failure to comply with information requests are made under regulation 14 of the Decisions and Appeals regulations. They can be made in either of two situations:

• 1. where benefit has been suspended under regulation 11 and the claimant 'subsequently fails to comply with an information requirement'; and
• 2. where benefit has been suspended under regulation 13 for failing to comply with such a requirement (i.e., and where the claimant has then been given a month or longer to comply).

Note that, where benefit has been suspended under regulation 11, the claimant must have been given a further chance to supply the information before entitlement can be terminated. Although not stated specifically, it seems, given CH/2995/2006, that this should mean being given a chance to comply under regulation 13. Termination is 'from the date on which the payments or reduction [of benefit] were so suspended, or such earlier date on which entitlement to benefit ceases'.

Appeal rights
There is no right of appeal against a suspension under either regulation 11 or regulation 13. The only formal legal remedy is judicial review, but depending on the facts it may well be that lobbying the local authority for a lifting of the suspension or at least a speedy remedy of the enquiry is more viable and effective.

Regarding terminations, however, it is now clear that there is a right of appeal. This is clarified by R(H) 4/08 (formerly CH/042/2007). There, Commissioner Jacobs held that 'a termination decision is given on supersession of a relevant decision. As such it is itself a relevant decision. And as a relevant decision it is within the right of appeal…' That meant that the official guidance in the form of Circular A2/2006, which advised decision makers that there was no right of appeal, was incorrect. The decision also makes it clear that the termination decision takes effect on a supersession for a change of circumstances.

Reasonable requests and failure to comply
As noted above, the essence of the information requirement is that it must be reasonable. A few decisions have commented on this, but inevitably it will be the individual facts in any given case that are most important. At one end of the scale, local authorities are permitted to ensure that public money is spent correctly, and claimants who refuse to acknowledge that risk difficulty, at the very least. In CH/4390/2003, the claimant had, in the view of Commissioner Howell, grossly overreacted to routine enquiries by the local authority, as a result of which benefit was legitimately suspended and finally terminated. An initial notification of a home visit - made under an anti-fraud verification framework in which the authority made such a visit every three years to check for residence and sub-letting - was met by, 'a series of flat refusals and accusations', including invocations of the Gestapo.

After 'a long period of correspondence', the award was suspended and then terminated, and the council declined to make a decision on a subsequent claim. The Commissioner did not analyse the application of the suspension and termination rules as such, but found that the tribunal was justified in holding that the local authority had acted reasonably, and that the claimant had acted unreasonably in refusing to comply. It was 'well within the bounds of reasonableness' to ask not only for the usual forms, 'but also from time to time in the form of a signed statement given in response to direct questions from a council or departmental officer at a home visit'. The failure to comply with a reasonable requirement justified the termination.

Home visits
Regarding suspension and termination, it is not clear if the Commissioner had in mind only the refusal to allow a home visit. Whether such a refusal is itself enough to found a suspension for failure to provide information under regulation 13 of the Decisions and Appeals regulations, is at least very doubtful. In CH/2995/2006, Commissioner Rowland held specifically that mere refusal to allow a home visit is not in itself good cause for suspension under regulation 13 and subsequent termination under regulation 14, although it might found suspension because of a doubt about entitlement under regulation 11. In CH/2555/2007, Commissioner Williams is less specific and appears to imply that a refusal of a home visit can be enough, although he also points out that the facts in CH/4390/2003 were particularly stark and do not allow general application.

But it is clear local authorities are not able merely to rely on the fact that something did not happen as evidence of actual failure to comply. In CH/2555/2007, the claimant had merely said that the date notified for the home visit was not suitable, and in any case the confusing and inconsistent communications from the council (including same day notifications of different decisions and different requests, confusions about dates and terminology) meant, according to the Commissioner, that the reasonableness of asking for a home visit was called into question. In CH/2995/2006, the claimant had again said that the proposed dates for a home visit were not convenient, but had (as the local authority alleged) failed to respond to a follow-up letter. In any case, the Commissioner held that 'a refusal to allow a local government officer to visit premises is not a ground for suspending payment under regulation 13 of the Decisions and Appeals regulations (i.e., for failure to provide information) or terminating entitlement under regulation 14. Only a failure to respond to a specific request for information justifies suspension or termination under those provisions.' But such a refusal might start the suspension and termination process by giving rise to a suspension under regulation 11 (i.e., because of a doubt about entitlement), followed by a request for specific information.

Suspension and termination procedures
The decisions in both CH/2555/2007 and CH/2995/2006 make it clear that a local authority's powers to suspend and terminate benefit awards are dependent on the correct legal procedures being followed. The two decisions have slightly different perspectives on this. In CH/2555/2007, Commissioner Williams was primarily concerned with a series of confusing and inadequate communications from the local authority to the claimant. Apart from throwing doubt on the reasonableness of the request to allow a home visit (see above), he also found that failure to provide evidence to a tribunal of the dates on which its various actions and decisions were taken may mean that the authority would be unable to show to the tribunal that it has followed the correct procedures. Also, the standard letters used by the local authority failed to use the statutory language, explain to the claimant what was happening or make the provisions that the relevant legislation required (including, on one occasion, failure to notify appeal rights and failing to show the grounds for revising or superseding the benefit award existed). The deficiencies were such to call into question again whether the letters satisfied the relevant statutory requirements.

In CH/2995/2006, Commissioner Rowland comments in more detail on the operation of the relevant rules. Termination in this case was unlawful as the proper procedures had not been followed. In particular, initially there had been no right to suspend for failure to provide information as the claimant had merely been asked to agree to a home visit, and not asked to provide specific information. Even where suspension on the grounds of a doubt about entitlement may have been legitimate, following issue of a postal review form which was not completed, the claimant was not informed of the period by which she needed to supply the information requested, and so there was no subsequent right to terminate the award under regulation 14 of the Decisions and Appeals regulations. Additionally, the tribunal erred in allowing termination from a date before the suspension was made, again in breach of the provisions of regulation 14. The Commissioner clarifies that if suspension is made under regulation 11 for doubt about entitlement, a subsequent request for further information comes under regulation 13, which in turn requires the notification of the time period allowed for supplying the information. Also, for a suspension under regulation 13, the claimant must have failed to comply with at least one request for information. Regarding termination under regulation 14, there must have been a suspension of benefit, the claimant must have been informed of the time allowed to supply the information, and that time period must now have elapsed.

Conclusion
Local authorities can suspend and ultimately terminate benefit for failure to provide evidence and information. But the suspension must have been valid and the grounds must have been clearly made out. For termination to occur, the claimant must have failed at least once to provide information, had benefit suspended and then been given at least one month to supply the information, and finally that time period must have expired. Claimants who have benefit terminated should be able to make arguments about any or all of these points on appeal.

Welfare Rights Bulletin 203 April 2008

Please be aware that welfare rights law and regulations change frequently, therefore older Bulletin articles may be out of date. Visit www.cpag.org.uk/welfarerights to see our most recent articles and briefings.