HOUSING BENEFIT REVIEW
The material on this page is current until April 2001. After this there will be a new appeal process. I am running a course on the new appeal process. Click here for details.
reg 79(2) This is the process set out in housing benefit regulations for hallenging decisions. It can only be used once a decision has been made on a claim for benefit by a claimant. Legally the result of a housing benefit review only affects the benefit of the claimant whose benefit has been reviewed, but a local housing benefit office can decide informally to change the benefit of all claimants affected in the same way if one or two review requests are successful.
Examples of decisions that can be reviewed include:
- a decision to limit the rent on the grounds that the rent is unreasonably high;
- a decision to pay the benefit direct to the landlord or to refuse to pay the benefit direct to the landlord;
- a decision (given in the correct form) that there has been an overpayment or that an overpayment is recoverable;
- a decision on how much income a claimant has;
- a failure to award a premium;
- a refusal to backdate a claim; starting benefit from the wrong date;
- incorrectly calculating the amount of ineligible service charges;
- a refusal to pay benefit on two homes;
- the way the housing benefit office has used its discretion (provided that this is within its legal powers);
- a decision to suspend benefit.
Examples of decisions that you would not use the housing benefit review process to challenge include:
- a general statement that a housing benefit office will not meet rents above a certain level in advance of a claim for benefit being made or any statement of principle not related to an individual claim. There is no legal way of challenging this (but a housing benefit review can be used when those principles are applied to an individual claim);
- a delay in dealing with a claim or making a decision;
- an attempt to recover a sum of money from a landlord which is not related to an individual claimant;
- a refusal to hold a housing benefit review;
- a decision to refer a rent to a rent officer.
WHO CAN USE THE HOUSING BENEFIT REVIEW PROCESS?
Regs 2 & 79 The claimant can use the housing benefit review process to challenge any decision.
The landlord of tenants getting rent allowances can only use the review process in two situations:
- either the claimant or the landlord has asked that benefit be paid direct to the landlord but the housing benefit office have refused to do so,
OR
- the housing benefit office are asking the landlord to refund an overpayment.
This is because regulation 2 defines a "person affected". A person affected has the right to request a review of a decision under regulation 79 and the right to request more information about a decision under regulation 77. (They also have the right to be notified of decisions.) Regulation 2 defines a person affected as the claimant and the council, in all cases, the landlord in a case where a decision is made under regulation 93 or 94 (direct payment to the landlord) or a person who the council asks to refund an overpayment. A "person" need not be an individual. It can be an organisation.
This means that the landlord can use the review process on their own behalf over many of the issues covered by this guide.
Councils sometimes argue that a landlord cannot ask for a review of a decision that there has been an overpayment or that it is recoverable. They say that the landlord can only ask for a review of the decision about who the overpayment is recovered from. A court case has ruled that this approach is wrong. In City of Plymouth v Gigg the court ruled that a landlord could not apply for judicial review about whether there had been an overpayment because he had not used his right to request a housing benefit review of this decision, so the right to request a review in this situation clearly exists.
Department of Social Security lawyers have advised that a council housing officer cannot use the review process. But they can support an application by a claimant.
reg 79(2) Where the claimant is asking for a review they must sign the letter. The landlord cannot do this for them. This also applies to further reviews. The landlord can type the letter, chase progress on the review, represent the claimant at any review board, but cannot sign the letter on behalf of the claimant.
This is important. The housing benefit office can ignore any letter signed by you "on behalf of" the claimant.
If you are chasing progress or representing a claimant at a review board it is useful to have a letter from the claimant saying that they want you to do this. This is particularly important at review board hearings if the claimant is not going to attend.
reg79(2a) In the two cases where the landlord can use the review process the review letter can be signed by any member of staff who has authority to do so and who is over 18.
PRELIMINARY STAGE
reg 77(4) Any "person affected" who has been sent a decision on a claim for benefit can ask for a written statement of reasons for any decision on their claim for housing benefit. There is no time limit. The housing benefit office is supposed to reply within 2 weeks or as soon as practicable after that.
FIRST STAGE
reg 79(2) The "person affected" sends in a written request for a review. Any written 'representation' counts legally as a request.
It is normally a good idea to send as full a statement of reasons as possible. The letter should be headed clearly 'request for review' so that it is not treated as just another letter.
The letter should be sent to the local housing benefit office to the address from which the decision was sent.
There is a time limit of 6 weeks from the date the decision is sent out. The 6 weeks starts on the date the decision is sent out, but the request is only treated as being made when the housing benefit office receives it. Any period from the date when the claimant requested a statement of reasons to the date when the housing benefit office provided them does not count towards the six weeks.
A housing benefit office can consider a review request made 'out of time' but it does not have to do so, unless the notification did not give correct time limits.
If a housing benefit office refuses to review a decision because it is out of time consider whether the housing benefit office has actually issued a formal decision to all the "persons affected" containing all the specified information. If they have not then the time for a review request cannot have run out because the six weeks only starts after a valid determination has been made.
reg 79(2) Once a request has been received officers of the council must review their decision within 14 days or as soon as possible after that. This is done by housing benefit staff. The housing benefit office can request further information, but will not hold a formal hearing.
reg 79(2) The claimant and any other person affected must be informed of the result of the review within 14 days or as soon as possible after that.
A very high proportion of decisions get changed at this first stage, particularly where the claimant has sent in a carefully reasoned statement.
SECOND STAGE
It is possible for someone who has received an adverse review decision to ask for a second internal review by officers, but in most cases this will be a waste of time.
reg 81(1) After the first or second officer review a request can be made for a review board hearing (it is not possible to skip the first stage). The request for a review board must be made by the same person (i.e. claimant or landlord) who made the original review request.
A request for a review board must be in writing and give reasons.
It should be headed clearly 'request for review board hearing' so that it is not treated as a request for another internal officer review. It should normally contain the same reasons as the first request but account should be taken of any comments made by the housing benefit office at the first stage.
Unless the notification of the first stage decision gives a different address, the letter should be sent to the address that decision was sent from.
It is a good idea to get further advice about presenting the case before going for a review board, but do note the time limits set out in the paragraph below.
There is a time limit of four weeks from the first review decision. The four weeks starts when the first stage decision is sent out. The review board hearing request must be received by the housing benefit office within the four weeks. A review board can decide to hear a case even though the request was sent in late, but it does not have to.
reg 82(1) The review board should take place within 6 weeks of the request or as soon as possible after that. The review board itself (not the housing benefit section) can decide to delay a hearing if it is awaiting the outcome of a challenge by the housing benefit office to a rent officer's determination. 10 days notice of the hearing should be given.
If you are involved in a review board hearing and have not done one before, get an experienced person to do the representation. But after you have been to a few you will probably feel confident enough to represent claimants or your organisation yourself.
Councils have a lot of discretion in how they run review boards, but you should expect something like this:
The review board is convened by the clerk to the board. The clerk is separate from the housing benefit section and may be placed in the legal department.
If there is a delay in processing a review board request ring up and ask for the clerk to the review board. If they say they have not had the papers from the housing benefit section ask them to chase the housing benefit section and get back to you to tell you what is going on.
A reasonable time before the board hearing the clerk will send the claimant and any nominated representative the date, time and place for the hearing. They will also send the documents prepared by the housing benefit section for the review.
These should include any relevant correspondence, the review request letter signed by the claimant and a statement by the housing benefit section saying why they took the decision that is being challenged, what regulations and court cases they have applied, and anything else that seems relevant. Sometimes the documentation provided is very poor.
A review board consists of councillors. There must normally be 3 members present but a claimant can go ahead with only 2 present if they wish. Legally the members of the board act independently. The board is not a committee of the council and is not bound by policy decisions taken by the council, only by the law.
When you arrive you may have to wait if other cases are being heard. Review boards often run late. You may find the housing benefit section's officer waiting with you. Unless he/she is presenting another case, he or she should not be in the room with the review board unless your side is present. When the board is ready you will both be invited in.
A claimant has the right to appear and speak, be accompanied or represented, call witnesses and question the housing benefit office and its witnesses.
You should expect a fairly informal hearing where the claimant and the person from the housing benefit section who gives the reasons for the original decision are treated as equals. It is not like a court of law.
Normally the housing benefit officer is asked to start by explaining why the decision was taken. The board members and your side can also ask questions about this.
Then the claimant or their representative is asked to say why they think the decision is wrong. They can also be asked questions.
Either side can call witnesses or produce written evidence.
If you are representing the claimant it may be a good idea to present the argument by saying:
- What you think the facts are.
- How you think the law applies to those facts.
- Why you think the housing benefit office's decision is wrong and what the correct decision is.
The job of the clerk at the review board hearing is to do the administration. Sometimes they may also advise the board on the law. But it is more common for a specialist legal adviser from the legal department to sit in to advise the board. They may want to ask either side questions about how they interpret the law.
When all this is finished the housing benefit officer and your side will be asked to leave the room. The review board will then arrive at a decision. Sometimes you will be told the decision if you wait, but both sides will always be notified in writing what the decision was and the reasons for it.
Some councils are not very experienced at running review boards and may do things that are clearly unfair. In many cases such practices have been challenged in the courts, with success.
Some councillors know a lot about housing benefit. Some know nothing. Some will tend to believe their officials because they think they know their job. Some will disbelieve them because they dislike officials. Some will try to be impartial.
If the review board hearing goes against you, you may challenge it in the courts on a point of law. But do get detailed advice before thinking of doing this.
Review board hearings do not set legal precedents, but if a housing benefit office regularly has decisions overturned by a review board it is likely to change its policy.
Some housing workers get lost in the procedure. It is important to be clear where you are. After a review request you may get requests for further information.. Provide this if reasonable. Next you should expect a revised or confirmed decision. Following this you request a review board if not satisfied. If the housing benefit office do not seem to be following the procedure consider threatening judicial review.
It is always worth putting in a review request if something appears to be wrong, even if you and the claimant are not sure of the exact grounds.
The second stage of the review process will be changed from April 2001. Instead of a review board, claimants will have the right of appeal to an independent tribunal.