Council Tax Disregard for SMI - post end of CB ESA

CIS

I'm no expert on ESA but the ESA guidance notes make reference to entitlement stopping after the 365 day limit - https://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0ahUKEwjT6IbtqvTPAhUHNhoKHXX4B5kQFggkMAE&url=https%3A%2F%2Fwww.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F181603%2Fesa-changes-q-and-a.pdf&usg=AFQjCNFvKnGz4XvTtkDnRnki8RgLUoFhjQ&sig2=yPOah5U5GQuP0KhZOzdMcA

To argue that credits show an entitlement you'd need to show that the credits are part of the original claim, (and require the ongoing claim) and not just something that's put in place for someone afterwards - i.e. that the credits in these circumstances don't have the cessation of an ESA claim as their criteria for starting.

You'd need to speak with DWP regarding the entitlement crtiteria etc - it's not the local authority who make any decisions on it and so they wouldn't know the full rules. The local authority can only action a SMI disregard if the DWP make the decision of the benefit entitlement (or confirm an underlaying entitlement).

Craig

CIS

NeilCr wrote: »

As I understand it, though, you can only go to the High Court on a point of law?

And you could go to the Local Government Ombudsman after the Valuation Tribunal?

Sorry OP I am intrigued by this thread and am picking Craig's brains

That's true on the point of law but the point of law would be that the legislation has been mis-interpreted and mis-applied.

The LGO is available but you don't have to have used a Tribunal first for that - you can use the LGO if you have tried to resiolve the complaint with a local authority and failed.

The LGO has not binding powers and can only make reccomendations (although most authorities will follow it). They can't get involved with the actual interpreation of law - they'd reject that as it's in the tribunals remit.

Craig

belinda1960

Yep, get that Craig. But, my partner is already entitled to, and granted, NI credits as part and parcel of her ESA entitlement.

The end date for payment of CB ESA does not mean that a claimant is fit for work, but it does still allow them to continue to be granted NI credits. .

Post the end of CB ESA a claimant may have to obtain a fit note (formerly sick note) to qualify for NI credits, but that merely underlines the fact that the claimant is not fit for work, In my partner's case her GP's SMI form is still current, and thus a fit note would in all likelihood be superfluous.

BTW CRAIG - I can't seem to open the Gov. Uk link you provided.

CIS

Not sure why that link no longer works, but anyway, a better link is to the decision makers manual, volume 8.

Sections 41810-41815 - under the header of 'Period of Entitlement'

41810 - Entitlement to an award of ESA(cont) where....
... cannot exceed the relevant maximum number of days.

41811 - Relevant maximum number of days
... 365 or a greater number of days where specified by order of the secretary of state.

https://www.gov.uk/government/publications/decision-makers-guide-vols-8-and-9-employment-and-support-allowance-staff-guide

To overturn it for the purposes of your argument you'd need to show that, contrary to the decision makers manual, entitlement doesn't cease at the end of the period set via legislation.

Craig

belinda1960

Hi again. I spoke to a number of people in our local council. Will let you know what they said tomorrow. Essentially confirmed , albeit verbally, that Council Tax disregard should continue post end of CB ESA one year payments.

CIS

The point is though that the local authority has no powers to make any determination on the entitlement conditions of a benefit for these purposes- the agency who determine the benefit (DWP etc) make the decision on the surrounding rules on entitlement, as per legislation.

If DWP's own guidance set out when a person meets the entitlement rules (as per their decision makers guide) then a local authority hasn't the power to decide otherwise (unless they could prove legislation shows otherwise and DWP are miss-applying it).

The Discount Disregards Order make it clear that '3.—(1) The condition prescribed for the purposes of paragraph 2(1)(c) of Schedule 1 to the Act is that the person in question is entitled to one of the qualifying benefits listed in paragraph (2) below. '

The local authority could, at best, award a disregard where they believe someone fell within the relevant criteria to be eligible on a specific day but they can't set the criteria to use. If a local authority is acting outside their powers, Ultra Vires, then they are leaving themselves wide open.

Don't get me wrong, I believe there are plenty of things in council tax that need tweaking and changing to improve them however until that's done then legislation holds firm on what can and can't be done.

belinda1960

Yes, despite what the council officials said I was dubious.

I may contact the Parliamentary Under Secretary of State at the
Department for Communities and Local Government. I would hope that they would know the answer and could liaise with DWP as appropriate.

There may be thousands of SMI citizens whose "entitlement" to CB ESA has ended post say the end of 2013, but may still be receiving council tax disregard / exemption.

CIS

There may be thousands of SMI citizens whose "entitlement" to CB ESA has ended post say the end of 2013, but may still be receiving council tax disregard / exemption.

Quite possibly. The local authority should have reviewed the information and had a form completed in that time (should being something local authorities can often forget about). The advantage from the local authority point of view is that they have you incriminating yourself in writing if you claim a disregard and have stated that you are in receipt and you're not.

DWP will be the one's who can clarify in law the specifics of when entitlement is designed to end - the DCLG should be able to help but I'd imagine they'll refer it on.

I've been thinking this one over again and I still can't think of a way around it (certainly not within the realms of council tax legislation) - the problem is the intertwining with other spheres of legislation.

Craig

belinda1960

Yes Craig it is an interesting one.

I now have the name of the specific individual in the DCLG who deals with Council Tax exemptions and disregards and the associated legislation.

Rather than emailing him I will call him to discuss/ raise query. Sould be quicker than a more formal request / FOI request etc.

BTW to date I have asked 5 local authorities the same question. All of them said they are still honouring the SMI disregard post end of ESA contribution based WRAG payments. I fear I may be opening a can of worms !!

NeilCr

belinda1960 wrote: »

I fear I may be opening a can of worms !!

I must admit I did wonder this

If you approach your LA with the question as to whether or not your partner will get the disregard in the situation you have described and they say yes (which sounds like they will do) is it necessary to go any further? I would get that "yes" in writing!