Good morning

I recently helped a housing association client, located in London, with an appeal involving UC and succeeded in having UC housing costs, restored and backdated to July 2021. The appeal affected 16 of its tenants and should produce around £225k in associated awards when finally settled. Our success took 3 years to achieve, and brought welcome relief for the tenants, who, but for my clients agreeing to suppress legal action, would have been evicted, due to the substantial amount of rent arrears that accrued. 

Frankly, the dispute should never have occurred. It was caused by a London Borough Council mistakenly determining the affected tenants, were living in “Temporary Accommodation” (TA) and should have continued receiving housing benefits, rather than transitioning to Universal Credit, as they did, between 2018 – 2020, their move having been prompted by Job Centre staff, promoting migration to UC.

Surprisingly, DWP accepted the Council’s opinion and compounded the mistake by instructing the tenants to alter the housing status, on their UC account, to reflect TA, even though many disputed this. Once altered, on their online account, UC staff instigated a retrospective revision of the cases, creating £250k in UC overpayments, and demanded repayment immediately!

My clients, with my assistance, challenged the “entitlement and overpayment” decisions by submitting Mandatory Reconsiderations (MRs); asked that a selected group of 4 be considered “test cases”; and, requested suppression of recovery action, pending an outcome to the appeal.

DWP failed to reply to the MRs, despite being legally obliged to. Complaints to its hierarchy, including the Area Director level, failed to produce the statutory MR Notices, permitting the dispute to progress to appeal. Frustrated by DWP’s lack of action and empathy, I wrote to the Tribunal Service, seeking the intervention of a District Judge. The appointed Judge issued a Direction’s Notice, demanding DWP reply within 1 month. It ignored the notice, and, only after being prompted again, did it respond, months later, claiming it was not responsible for the decision. Instead, it argued the Council, who had repeatedly advised the tenants were living in “temporary accommodation”, should be asked to defend its conclusion.

I disputed this; the issue concerned Universal Credit, not Housing Benefit, and it was up to DWP to defend its position as “Decision Maker”. After nearly two years of frustrating exchanges with no progress, a Judge scheduled an oral hearing for May 2023 and instructed DWP, the Council, and my clients to attend. Neither one of the tenants was invited as DWP had overlooked their automatic legal rights, as 2nd Respondents, which I had highlighted at the outset of the dispute.

As an ex-head of Housing, it was clear, none of the tenants occupied TA. They were all single, able-bodied individuals, who had secured their accommodation, either directly with my clients or following a referral from one of the recognised charitable bodies. Each had Assured Shorthold Tenancies (ASTs) with some in place for 7 years. 

At the May hearing, DWP’s representative appeared with a handful of papers and little or no knowledge of what was at stake and admitted he wasn’t prepared to proceed. The Council sent two of its housing benefit managers and a barrister to assist. The Judge kicked off the hearing by making clear her displeasure with both DWP and Council, for their lack of written submissions, despite being instructed to provide same. Thereafter the Judge scheduled a further hearing for December 2023 and demanded both make their submissions, addressing my client’s grounds for appeal. When the hearing commenced, the judge put it to the Council, the tenants were not living in TA and after a short adjournment, the Council’s barrister acknowledged that indeed was the case. The fact it took 30 months to secure that admission from HB managers, operating in a housing department environment, was astonishing.

Having secured the concession, the Judge asked DWP’s representative if he wished to reconsider DWP’s original stance. He responded, stating, he would now revise the unfavourable decision and fully restore the situation that was wrongfully disturbed in July 2021. His commitment should have lapsed future proceedings but the Judge insisted on a further hearing, scheduled for February 2024, after which she rendered her decision, almost 3 years from the date the proceedings were initiated. DWP has now set up a dedicated team to calculate and pay all arrears to my clients to offset the arrears and protect the tenancies.  

The worrying thing about cases of this nature is, DWP admitted, during proceedings, it has little or no knowledge of what constitutes “temporary or supported accommodation” so will always be reliant on advice proffered by Councils, even though it is the responsibility of it Decision Maker to justify its decision. As we’ve seen here, that’s not always as reliable as it should be. In the case of “Exempt” or “Supported Accommodation”, where satisfying the criteria (Care, support & supervision) is difficult to achieve, it is anything but clear cut. So, the bad news is, we can expect more disputes of this nature as both councils and DWP have embarked on large scale reviews of existing cases. If you’re involved in providing accommodation with specialist support, and encounter problems of this sort, don’t do anything until you’ve secured assistance from a benefits advisor. 

If you require further information on this or any other HB or UC related topics, please contact me by email bill@ucadvice.co.uk or by phone, 07733 080 389. 

Regards

Bill Irvine

UC Advice & Advocacy Ltd