Qualifying benefits for council tax discount for severely mentally impaired people

mad_spaniel

Hi.I have a friend who should probably have severe mental impairment discount on her council tax for some years but failed to claim DLA/ SMi discount. However she has now been awarded PIP from Nov 2014, so has had SMI paid back to then. The question is about further backdating. The reverse of the local authority form states one of the qualifying benefits is the disability element of working tax credit. My friend has worked part time for years and claimed the disability elect of working tax credit. However the council have prevaricated now, saying that because the disability element isn't specifically said to relate to a mental health issue , entitlement is arguable. They have further stated that the relevant Regulations/ Guidance to councils haven't been updated since 1992. I have `Googled as much as I can and come up with Council Tax (Discount Disregards) Order 1992 : and an entry saying qualifying benefit includes
(vi)!A disability working allowance under s. 129 SSCB Act for which the qualifying benefit is –
(a)!one falling within s. 129(2)(a)(i)
However I can't find anything which puts this into plain English or updates it which I can quote back to them on her behalf. Can anyone help?

CIS

The basic regulations were first introduced in 1992 but there have been slight amendments over the years (usually only to adjust it for benefit changes).

There are two main elements to the disregard:

1) You have to be confirmed by a medical profession as "For the purposes of this paragraph a person is severely mentally impaired if he has a severe impairment of intelligence and social functioning (however caused) which appears to be permanent." to meet the definition of severely mentally impaired.

2) If you meet the definition of severely mentally impaired you also have to be in receipt of a qualifying benefit.

There's nothing in the regulations to say that the qualifying benefit has to be because you are severely mentally impaired (although usually it would be).

mad_spaniel

Thanks for that. Her consultant signed the form saying she had been SMI since 1999. What they seem to also be saying is that because the Regs say "Disability working allowance" not "disability element of working tax credit" she's probably not covered. The team leader is meeting the Revenues Manager on Monday to discuss. I think the real problem is they've got confused between the disability element of working tax credit and Disability Living Allowance because the council officer kept going on about rates. I'm also confused because I've Googled various local authorities claim forms for SMI and some just regurgitate the 129(2)(a)(i) SSCB Regs and some ignore this completely as though this is no longer a route to a discount.

pmlindyloo

Done a bit of 'digging' and in the act it is referred to as disability working allowance.

Apparently Disability Working Allowance was changed to Disabled Person's Tax Credits and then to working tax credits with the disability element.

However, I cannot find any amendments to the act which specify this.

We're not alone!

http://www.rightsnet.org.uk/forums/view/viewthread/2769/

My suggestion would be to apply for the backdating and then appeal the decision.

You could also email your new MP and ask for clarification!

mad_spaniel

Thanks for the link. I've been told there's no right of an appeal about backdating, that it's purely discretionary. We've already thought about approaching the MP if the outcome is unsatisfactory but since my friend would have to be the principal complainant, this would be very stressful and probably the last resort. I'll let you know what they say after the Monday meeting.

CIS

mad_spaniel wrote: »

Thanks for the link. I've been told there's no right of an appeal about backdating, that it's purely discretionary. We've already thought about approaching the MP if the outcome is unsatisfactory but since my friend would have to be the principal complainant, this would be very stressful and probably the last resort. I'll let you know what they say after the Monday meeting.

That's incorrect - the council can decline backdating but there's nothing in the regulations to prevent backdating providing you meet the requirements. If the council decline to backdate then only a valuation tribunal can make the ruling, which would be binding.

10pence

mad_spaniel wrote: »

Hi.I have a friend who should probably have severe mental impairment discount on her council tax for some years but failed to claim DLA/ SMi discount. However she has now been awarded PIP from Nov 2014, so has had SMI paid back to then. The question is about further backdating. The reverse of the local authority form states one of the qualifying benefits is the disability element of working tax credit. My friend has worked part time for years and claimed the disability elect of working tax credit.

If your friend has only been awarded PIP since Nov 2014 did they claim the disability element of WTC beforehand and if so how did they qualify?

This could lead to an overpayment of WTC.

WTC - disabled worker element

This element is a significant one for disabled people. In addition to working at least 16 hours a week, you have to satisfy two other tests - a ‘work disadvantage test’, and be in receipt (or recent receipt) of a ‘qualifying benefit’.

LINK and LINK

CIS

In addition to what was in that previous link.

In 1997 the original 1992 Discount Disregards order was amended to read

4. For sub-paragraph (f) of article 3(2) of the Council Tax (Discount Disregards) Order 1992(1) substitute—

“(f)a disability working allowance under section 129 of that Act, where the qualifying benefit is—
(i)one falling within subsection (2)(a)(i) or (ii) of that section, or
(ii)income support, and the applicable amount formerly payable included a disability premium within the description in sub-paragraph (j) below(2),
or is a corresponding Northern Ireland benefit;”.

The Tax Credit Act 2002 appears to have completely repealed section 129 of the SSCBA 1992 so removing the reference to the DWA from this legislation.

Unless there's something elsewhere which states that section 129 is to be directly replaced (which I can't see anywhere) then this section no longer exists and couldn't be relied on any longer. There's also nothing else I can find in legislation which adds tax credits (or any aspect of them) to the Discount Disregard order as a qualifying benefit.

I cannot see any further regulations which enact any replacement to this in the regulations for council tax - it may have slipped through the legislation without being noticed or else it was specifically left out.

mad_spaniel

She has had periods on/ off Supplementary benefit/ Income Support with disability premium and also Incapacity Benefit/ Support group ESA so I think these have probably been the routes to the working tax credit when she has gone back to work. there has been an overpayment of WTC at one point, but that's not the issue here. That's being repaid. She has had the disability element on awards of WTC from 2004 to date.

CIS

The council tax handbook 2005 edition I have (which I use for work) is suggesting that part(f) which referred to Disability Working Allowance has been replaced with the disability element of tax credits however it doesn't give reference to the pieced of legislation which changed this. The problem here is that the legislation.gov.uk site hasn't got the best search engine and it doesn't always appear to have a copy of all legislation.

This being said - providing they are willing to accept that the disability element is a qualifying benefit then my points in post 2 still apply. They cannot arbitrarily make determinations which are contrary to legislation.

pmlindyloo

CIS wrote: »

The council tax handbook 2005 edition I have (which I use for work) is suggesting that part(f) which referred to Disability Working Allowance has been replaced with the disability element of tax credits however it doesn't give reference to the pieced of legislation which changed this. The problem here is that the legislation.gov.uk site hasn't got the best search engine and it doesn't always appear to have a copy of all legislation.

This being said - providing they are willing to accept that the disability element is a qualifying benefit then my points in post 2 still apply. They cannot arbitrarily make determinations which are contrary to legislation.

I do agree with this.

Looking at a number of council websites they do seem to have conflicting information about the criteria.

Interestingly this one:

http://www.southnorthants.gov.uk/2834.htm

refers to the legislation and disability working allowance but if you click on the application form the disability element of WTC is included in evidence of qualifying benefit.