Housing Benefit Appeal (can you win?)

[angryandy]

Hello people

 

Will try and make a long story short so please bare with me.

 

Last year i was claiming housing benefit based on my income being so low.

 

This year I recieved a letter from the council asking to see all my accounts etc etc including receipts.

 

I duly obliged as i had nothing to hide about my income.

 

About two months ago i got a letter off the council saying i was overpaid last year and they wanted £847 returned to them and they would take it out of new entitlement.

 

Their reason for this is this is that my self employed earnings went up (they actually fell by £2000).

 

I have wrote to the council stating this and they have stated that on their 'estimates' i should have been making more so would class their estimate as my official wage even though they have my accounts in front of them.

 

Obviously i have disputed this and will do so again as my first dispute fell on deaf ears. The thing is now is that it looks as though it is going to go to an independant tribunal and does anyone ever win these sort of cases.

 

I have recently left my job as i wasn't making money so i am now on jobseekers with two kids to feed yet they want £847 of my new entitlement. I can't afford this so any advice please.

 

Thanking you in advance...

[ErikaPNP]

Wherever there is a right of appeal and grounds for appeal (error of applying the law incorreclty during the decision making process), you can win.

 

What you can't win is when a decision has been made correctly whether or not it is morally, or to your liking doesn't come into it, but if it has been made in accordance with the relevent legislation and that legislation has been applied correctly then you cannot win.

 

Have a look through the legislation to determine whether they have calculated your claim in accordance with the law: The Housing Benefit Regulations 2006

[angryandy]

Hi again Erika and thanks for helping me again.

 

Just want to give you some more details if i may.

 

I was a taxi driver and had been for some years making a half decent living out of it. As you would probably know with the situation today and the credit crunch people are losing their jobs and as such go on the taxis to try make a living.

 

The problem being is that i live in a place where we have the largest taxi private hire fleet in Britain (not London) and it just keeps getting bigger with the council throwing taxi licences to everyone that wants one. (They make money out of this).

 

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.

 

By the way my car was a 2.0 petrol which was ten years old and had 210000 on the clock. I have since got rid of it as i could no longer afford to keep it (insurance, tax, maintenance, tyres, mot etc etc.)

 

Hope you will reply with some words of wisdom please and sorry about the long thread.

 

Thanks again Andy...

[ErikaPNP]

I'm not going to lie to you Andy.

 

I have absolutely no idea whether or not you would be successful so for me to say either way would not really help you. I am not great when it comes to local authoity decisions.....I can do the basics in Local Authority but my strengths are DWP benefit , my weakness LA benefit.

 

From what you have said though, I would say this: You have absolutely nothing to lose by appealing the decision. If they have "estimated" and refuse to accept your accounts, and you can demonstrate the accuracy of your accounts, I'd say you are in with a pretty good chance.

 

With most DWP decisions, the DM (Decision Maker) must provide proof that the capital exists or existed and was disposed of (deprivation of capital) to refuse a claim or adjust an award sum. They cannot go solely on the basis of their belief. If they have a reasonable suspicion, they can refuse but must follow appropriate channels, such as they write to the claimant stating the facts before them and request clarification. If the claimant provides evidence to back up the DM's theory, then they can refuse/adjust. If the claimant fails to respond within the time limit set out in the letter, they can refuse/adjust. If the claimant can provide evidence which throws the DM's theory out, then the DM cannot refuse/adjust.

 

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.

[installspark]

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

(a) any capital expenditure;

(b) the depreciation of any capital asset;

© any sum employed or intended to be employed in the setting up or expansion of the employment;

(d) any loss incurred before the beginning of the assessment period;

(e) the repayment of capital on any loan taken out for the purposes of the employment;

(f) any expenses incurred in providing business entertainment; and

(g) any debts, except bad debts proved to be such, but this sub-paragraph shall not apply to any expenses incurred in the recovery of a debt.

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

(a) the replacement in the course of business of equipment or machinery; and

(b) the repair of an existing business asset except to the extent that any sum is payable under an insurance policy for its repair.

 

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

[angryandy]

Thanks Erika and Installspark.

 

From what i have read on Erikas (Housing Benefit Regulations 2006) and from what you have copied Installspark it does not seem to state that they can just pluck a figure out of thin air and say that's what you earnt.

 

To be honest though reading through it (HBR 2006) a lot of it seems jiberish to me as i am no Einstein and so wouldn't really know what it says or meant.

 

Could you give me your opinion Installspark on what you seem to think it is stating. I know i am asking for a lot but i would really like to get my facts right before writing my second latter of appeal.

 

Both you and Erika very kind people who take the time to help others, just wish there where more like you two around.

 

Again thanks guys and if their is anything you think might help me would you please let me know.

 

Don't want to let these robbers get the better of me.

 

Thanks again

[installspark]

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.