Did you apply for contribution based ESA only or did you apply for both contribution based and income related ESA?

If it was the former, then you will have needed to have paid enough NI in both tax years 06/07 and 07/08 in order to be paid ESA©. If you claimed for the latter then you would also be assessed for ESA(IR).

ESA(IR) is awarded where the contribution conditions for ESA© are not met or where contribution conditions for ESA© are met but the amount of ESA(IR) entitlement is higher than that of ESA(IR), usually a claim for a couple. For ESA(IR) capital, savings, investments and ther income are taken into account, less certain disregards, this can affect the amount of ESA(IR) awarded.

If you only applied for ESA© at the time of claim, you can still apply for ESA(IR) by contacting the benefit delivery centre dealing with your claim, they will probably send you the ESA1 claim form for you to complete in respect of ESA(IR).

It would be 10 working days to type everything up and post it to you, although I think it should really be 10 working days in which you should receive the reply.

The appeals procedure for HB/CTB is broadly in line with that of the DWP's procedure for benefit appeals. Once your appeal has been received the original decision will be reviewed taking into account the information you give in your letter of appeal.

If the decision can be revised you will be notified of this, should the council not reviese the decision then you will need to notify them that you wish to take it to a tribunal. As angryandy has said, the appeals tribunal is independent of the council and will consider evidence and arguments from both sides.

An appeals tribunal, although a formal legal procedure, is held in a relatively informal setting and the panel is not there to intimidate you. You can elect to attend an oral hearing or elect to have a paper hearing where there you do not need to attend. It should be noted that in the case of the latter the panel will only consider the written evidence and arguments already made, and you will not be able to add any further evidence or argument to your case. I would always advise to elect for an oral hearing. You have the right to be represented at an oral hearing by a solicitor, an organization such as CAB, another individual or to represent yourself.

Should your appeal fail at the tribunal stage you may seek leave to appeal to the second tier appeals tribunal, this however is is a very formal legal procedure and can only deal with points of law. It is also costly as you will need professional, legal representation.

Calling people back from an inbound call also depends on local office policy, some offices wil do this, some won't and some will for certain benefits.

There are also the phones avaiable at the Jobcentre which you can use for enquires and claim qureries.

See my reply

You have the right to appeal against the alleged overpayment within a 30 day period of you receiving thier letter. Also, and most councils conveniently forget this, if you appeal against an overpayment no deductions or pursual of overpayment can be made until the decision has been reconsidered or the appeal heard at a tribunal.

From what information you have posted it would appear that there may be a case for claiming official error on any appeal; however this would depend on exactly when you notified them of the change on circumstances. If you notified your council before the changes occurred then official error is clear cut, if the notification was done after the change occurred and you could reasonably have known that your benefit amount would have changed then proving official error is going to be more difficult but not impossible as they still took over 2 months to recalculate the benefit thereby creating a larger overpayment than was necessary. Either way the council should have suspended your claim upon notification of the change which would have prevented the level f alleged overpayment.

You may find this post useful and it contains links to the regulations concerning overpayments.

http://www.consumeractiongroup.co.uk/forum/benefits-tax-credits-minimum/203059-east-riding-yorkshire-council.html#post2226672

On a positive note, I was also allegedly overpaid following a notification of a change in circumstances. I won my appeal as my council accepted that I notified them before the change occurred and they failed to suspend the claim whilst awaiting a recalculation. The council agreed that it was an official error and as such the alleged overpayment is non recoverable.

Your local council should have a benefit calculator on their website which will give a fairly accurate indication as to what you will receive.

From October Child benefit will be fully dsregarded when working out entitlement to housing and council tax benefit.

@ tracy4434

You can claim DLA if your condition has existed for a minimum of 3 months and is expected to last for at least another 6 months. The previoiusly posted link for more information on DLA was incorrect, more information can be found here:

Disability Living Allowance

@ JRankoff

Eligibility for Employment and Support Allowance (ESA) depends on several factors.

1. National Insurance Contributions [ESA contribution based {ESA©}]
   
2. Income [ESA income related {ESA(IR)}]
   
3. Savings and investments [ESA(IR)]
   
4. Occupational Pensions and Personal Health Insurance [ESA© and ESA(IR)]
   
5. Partner's employment and income [ESA(IR)]
   
6. Permitted Work [ESA© and ESA(IR)]
   

For further information regarding ESA see

Employment and Support Allowance

WFI's can be done at home in certain circumstances, you will need to contact the Personal Advisor at the Jobcentre. Also Atos Origin, who do the WCA (Work Capability Assesment) and the WFHRA (Work Focused Health Related Assessment) will also do home visits.

However thay insist that I provide them with a statemnt for that account before they start paying.

 

What am I to do? The bank does not want to hear as I closed the account on bad terms with them (another story).

 

Hope you can help with some advice.

Ask the council which housing benefit regulation they are referring to when they are asking for a statement more than 3 years previous and on a closed account. It is normal to only have to supply the last 3 months worth of statements.

Firstly the manager was not being cheeky. The rules and regulations governing benefits are set by statute law and this comes from the government, to challenge this and the subsequent decision it is your mp who to whom the complaint must be made to.

Secondly having claimed JSA for more than 26 weeks and provided your new job is for more than 16 hours, expected to last more than 5 weeks and was started within 3 weeks of the end of the JSA claim you should also have received a job grant. Also help towards your travel costs would have been possibly available through the Advisor Discretion Fund, this would have been available through the jobcentre. I would suggest that you contact the benefit delivery centre who dealt with the claim and enquire why the job grant has not been paid.

Great to hear that your council has seen sense and reconsidered it's decision in your favour.

As Erika has said, launching a claim against the council via a solicitor is unlikely to be successful. What you need to do is to get your complaint of maladministration through the council's complaints process and to the local government ombudsman. Broadly speaking the process is to write to the benefits manager wait 10 working days for their response. If no response received or response unsatisfactory then you have to write to the manager responsible for financials and again wait 10 working days for their response. Similarly if no responce etc then you have to write to the council's cheif executive and wait 10 working days for the final response from the council. Once this final response has been recieved and you still remain unhappy with it then you need to put the complaint in writing to you local government ombudsman

Local Government Ombudsman; Making a complaint

A solicitor will do this on your behalf, but why pay them when you can do it yourself for no charge.

As an aside I'm still waiting for my council to deal with my appeal and stop taking the deductions. Just giving them enough rope.....

Did you notify your previous council of the change in circumstances? If you did and the council failed to act on the notification then this would be official error and as such makes the overpayment non-recoverable. If you did not notify the council of the change then you are liable for the overpayment, as would be your ex if it was a joint claim.

if u are in reciept of JSA u will get full CTB and the benefit will/should inform them

Only guaranteed if you get JSA(IB) (income based) otherwise you are assessed on income and capital. A significant majority of people on JSA© get full CTB paid.

Mortgage interest will usually be paid from week 13 of the claim, and you will need to complete and return the MI12 form.

And I thought my LA was bad :grin::grin::grin::wink:

Whilst an overpayment is in dispute a LA should not be proceeding via a debt recovery route. This is harassment. Also if a claimant of HB is in receipt of certain benefits, any overpayment can be recovered can be recovered directly from the benefit.

The LA cannot invent a figure for themselves, especially not basing it on the amount of fuel you purchased!!!!!!!!!

They have to look at your average weekly income based upon your net profits earned whilst self employed. If what you have posted are the full facts, and I have no reason to doubt otherwise, I would like to see your LA explain their figures in a Appeals Tribunal in front of the panel.

To give a full opinion I would need their calculation of your income and your calculation of income including tax and NI If you are happy to do this then please send me a PM rather than posting to the open forum.

well this is the problem i was never sent an award notice from te Job Centre. I asked about it and kept being told i'd get it in the post which i never did. I gave up asking in the end. I told the council i have my JSA signing on book and bank statements which clearly show JSA payments have gone in. They told me they wouldnt accept this and needed the ETD form from the job centre to proove i am in payment....

As ErikaPNP has said, your LA is talking complete nonsense, they do not require the award notice if you have bank statements showing the payment of JSA (IB). The payment of JSA will show on your statements as your NI number followed by DWP followed by JSA, e.g AB123456C DWP JSA.

Also the LA are able to check on CIS what benefit you receive as well as contacting your BDC (Benefit Delivery Centre) to verify the information. You will have already given your consent to this.

Part 8 para 72 CTB Regulations states

Too many staff in the benefit section of LA's are not comrehensively trained enough to know the rules and regulations and wghat constitutes evidence of benefit.

I'm confused, so in order to satisify SCC you have to have paid 50 times £84 / £87 NI?

Yes, or treated as, having paid 50 times LEL, £4200 and £4350 respectively. NI credits gained from benefit claims will count towards this.

In your case they have a "theory" (estimate) you have provided proof which throws the theory out. They have ignored that fact before them. I would like to think that the principles above would apply, but the truth is I don't know, but I'll tell you a man who might. Installspark - he's red hot with LA benefit, perhaps give him a pm and ask him to look in on the thread for you.

 

As far as I am aware, housing benefit (now LHA) is dependant upon the facts rather than the maybe's.

You are right. LA's, like us at the DWP, have to deal with facts not theories and there is a whole section given over to Self Employed in the HB Regs.

When i gave my accounts in with all petrol reciepts etc that is when they have basically called me a liar with the figure on my accounts.

 

Their basis for argument is that because of the amount of petrol i had put in my car that year i should have been making more money so they have took the liberty and told me what i should have made rather than what i have actually made. This is where they say i owe money to them now.

 

If they actually believe what my accounts are (which are true) i wouldn't owe them a penny and in theory they would probably owe me some.

 

I hope you or anyone else on here would just give us some sort of clue as to weather i have a valid dispute and if the council are right or wrong in what they are doing.

 

It just seems to me to be a pretty poor case by the council as in my opinion if this went to the independent bodies and their basis for argument is 'we estimate you should have made more due to the amount of petrol you have used' i think or rather hope i would win.

Whilst not guaranteed, you would appear to have good grounds for appealing the LA's decision on overpayment and their calculation of benefit entitlement. I can only base this advice on the information presented.

(HB regs referrals in red)

For HB/CTB purposes the LA has to average out your earnings over a "appropriate" period. The maximum this period can be is 1 year. 30(1), 30(2).

Earnings of Self Employed Earners is defined as "the gross income of the employment and shall include any allowance paid under section 2 of the 1973 Act or section 2 of the Enterprise and New Towns (Scotland) Act 1990[115] to the claimant for the purpose of assisting him in carrying on his business unless at the date of claim the allowance has been terminated." and "shall not include any payment to which paragraph 26 or 27 of Schedule 5 refers (payments in respect of a person accommodated with the claimant under arrangements made by a local authority or voluntary organisation and payments made to the claimant by a health authority, local authority or voluntary organisation in respect of persons temporarily in the claimant's care) nor shall it include any sports award." 37(1), 37(2).

Calculation of net profit defines the income to be assessed for average weekly earnings "in the case of a self-employed earner who is engaged in employment on his own account, the net profit derived from that employment;" There are also disregards which can be taken off the net profit, these include:

• any applicable sum as specified in paras 1-14 Schedule 4
  
• subject to paragraphs (5) to (7), any expenses wholly and exclusively incurred in that period for the purposes of that employment
  
• an amount in respect of income tax and NI contributions
  
• 50% of any pension contribution payment
  

The LA will not take into account the following when calculating net profit

But will make a deduction for the repayment of capital on a loan used for

38(1) - 38(9)

For Deduction of tax and contributions of self-employed earners the whole of 39(1) - 39(3) applies.

In terms of whether or not the (alleged) overpayment is recoverable or not depends on whether you can prove official error. This would then make the (alleged) overpayment non recoverable, and this is defined in Recoverable Overpayments. 100

Whilst you appeal an overpayment the LA are not meant to take any deductions from current entitlement, but frequently they tend to overlook this and take them anyway.

Any appeal that you make must be done in writing and I would advise that any contact whilst in appeal is also in written form, this gives you a paper trail as phone calls or visits can be denied.

My knowledge of LA's and CTB/HB comes from experience from having to deal with them personally and on behalf of others. My expertise lies with ESA

For 07/08 £87.00, for 06/07 £84.00, for 05/06 £82.00

If your partner finds from HMRC that he paid enough contributions to satisfy the FCC in any one of the three RITY's, appeal against the decision made. FCC looks at the previous three RITY's and the SCC the previous two.

When you complete the GL24 If you think our decision is wrong form, try to include as much supporting evidence as you can as to why you think the decision is wrong. The more supporting evidence you have for an reconsideration/appeal the better chance of the appeal being successful.

Once the GL24 is received by the BDC, your claim will go back into payment provided that you continue to send sick notes or are covered by a valid sick note.

Many GP's are misreading the letter sent to them with the outcome of the WCA stating you have been found fit to so some form of work as they miss the paragraph which tells them that they still need to provide sick notes if the claimant is appealing against the decision.

The WCA is not used to say how ill a claimant is, that is beyond doubt as sick notes are sent regularly, but to find out if here is any form of work that the claimant is capable of doing. Unfortunately there are many cases where a claimant has failed the WCA yet it is obviuous that they are incapable of doing any form of work.

For a contribution based claim the DWP will look at the three tax years prior to the benefit year, known as relevant income tax years (RITY's). In your case the benefit year is 2009, so the RITY's used will be 05/06, 06/07 and 07/08.

In order to get ESA© (contribution based ESA) you will need to satisfy both the FCC (First Contribution Condition) and the SCC (Second Contribution Condition).

The first contribution condition.

In order to qualify for contribution based ESA you must have:

• actually paid Class 1 contributions in one of the three last complete tax years on earnings of 25 times the lower earnings limit for that particular year; or
  
• 25 Class 2 contributions in any of the three last complete tax years; or
  
• a mixture of Class 1 and Class 2 totalling 25 in any of the three last complete tax years.
  

Class 1 National Insurance contributions are paid by employed people as a percentage of their earnings. Class 2 NI contributions are paid by self-employed people at a standard weekly rate.

The second contribution condition.

In addition to meeting the first condition you must also have paid (or have been treated as having paid) Class 1 or Class 2 contributions amounting to at least 50 times the lower earnings limit in each of the two relevant tax years.

The relevant tax years are those that precede the benefit year in which the claim is made. To make things a little more complex, the benefit year runs from the first Sunday in January whereas the tax year starts on April 6th.

Contribution credits count as Class 1 credits and can be used to help you meet the second contribution condition. You are credited for each full week that you receive-

• incapacity benefit or
  
• employment and support allowance or
  
  
• statutory sick pay or
  
• severe disablement allowance or
  
• income support due to incapacity for work or
  
• maternity allowance or
  
• jobseeker's allowance or
  
• carer's allowance or
  
• adoption pay
  

Most claims are assesed for ESA© and ESA(IR) (income related), should you fail to satisfy the FCC and SCC then the claim will be ESA(IR). With ESA(IR) all other income, together with capital between £6000 and £16000, is taken into account. Presuming you have claimed as a couple, then your IB income will have been deducted from the ESA(IR) applicable amount hence the £11.15 per week our partner has been awarded. Had your partner been awarded ESA© then your income would not have affected their amount of ESA©

The letter will have been sent, but it is not unusual not to receive it until several days later. The Decision Maker (DM) has to send a letter informing you as to why your claim has been sanctioned and what rules and law have been used.

You state that you weren't advised that your JSA was going to be sanctioned, yet you also state that your were advised on the 13 week review that it might be sanctioned due to the restriction you were placing on your available hours for work. Your job seekers agreement would have also stated that JSA may be sanctioned if you restrict the type or hours of work you seek and the advisor was giving you forewarning of what may happen once the claim had been sent to the DM.

With an uncertainty over payment of JSA it was inadvisable to borrow money on the basis of paying it back once the JSA payment had been made.

You can appeal the decision and can either do this in a letter to your Benefit Delivery Centre or complete a GL24 "If you think our decision is wrong" form.

Show me a court that supports the sending 10-16 letters n pursuit of a debt (whether real or imagined) is criminal 'harassment'.

 

It is this nonsense that fools people into believing they have some special powers to use in the event of recieving a few nastly letters, when in fact - it is perfeclty lawful.

 

Criminal harassment it is not, unlawful harassment contrary to the Protection from Harassment Act 1997 it is.

Ferguson v British Gas Trading Ltd 21 January 2009