Council told me to submit an FoI for the details of my housing benefit award and alleged DHP ‘overpayments’

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Last year I fell into difficulties because my housing benefit was decreased. I struggled to make up the shortfall to pay my rent. I also had to pay council tax as my council tax benefit was reduced. I made an appointment with my local council welfare service, who advised me to claim Discretionary Housing Payments. They supported me in working out my monthly expenses and they found that I was over £200 a month short to meet my basic living costs, including rent. I was very ill at the time with a severe flare up of lupus and my mobility was extremely poor. 

The welfare service contacted occupational therapy on my behalf, and they organised an appointment for an assessment, and subsequently, for the provision of some aids and adaptations in my home because I often struggle getting about. The welfare service advised me to claim Personal Independent Payment (PIP) and supported me with my claim. I had such a distressing experience claiming Employment and Support Allowance (ESA) in 2011, having to appeal the decision, then almost immediately after winning at tribunal, I was sent for a re-assessment, that I had put off claiming PIP for six years, even though I needed the support very much. The distress and strain caused by each assessment, including the one for PIP, has exacerbated my illness.

The housing team decided that Discretionary Housing Payment (DHP) would be awarded for a year. This is a fairly standard award length. The DHP was to help cover the extra cost I had because of the deductions being made to my housing benefit while my son was at home. He took six months out from university because in February 2017 I developed pneumonia and sepsis. I was very seriously ill and almost died because I developed severe sepsis and septic shock. My son supported me after I came home from hospital, while I recovered, which took several months.

When I was awarded PIP, my housing benefit was amended and an increase in my award was backdated to the date of my claim for PIP. Because my son was staying at home, deductions had been made – the bedroom tax – because he was classed as a ‘non dependent’, even though he had no income for that period, as he is a student. The council tax charge arose because of the same reason. Although my rented property is a private one, my local council nonetheless call the non dependent deduction a bedroom tax. 

Councils are not allowed to make deductions for non dependents from people who have a PIP award with the daily living component. I came across this rule on the government site. I notified the council and explained the rule, as they didn’t seem to know about it. I was then reassessed and awarded the money that was deducted from my housing benefit for the bedroom tax, and the council backdated the amount they repaid to when I first made my PIP claim, which was from late July to April, 2017.

I received a letter explaining how my housing benefit had been worked out again. I then received a letter from the Discretionary Housing Payments section of the council, saying I had been overpaid DHP from April to July. This is because my housing benefit had increased and the increase was backpaid.

I was told I had to repay the DHP. It was deducted from my housing benefit without further discussion – leaving me short again for my rent and defeating the objective of DHP. I had claimed DHP early last year because of the bedroom tax shortfall. 

I was not informed about the rule that councils cannot make deductions for non dependents if someone is awarded the daily living component of PIP, I had to find that out myself. Nor did the council indicate that if my housing benefit was increased by the housing benefit section retrospectively, that would mean I may have to repay my DHP. I was not informed that if the housing benefit sector had made an error, I may be expected to repay the DHP awarded. However, the error occured through no fault on my part, so I ought to have challenged the claim of overpayment, but I did not know the rules about this at the time.

I was not informed at the time I made my claim for DHP that if I got my PIP award, my housing benefit would increase and that the increase would be backdated to the date of my PIP claim. It’s also reasonable to assume that the housing benefit office would have taken into account that I had a DHP award when they paid me the money for the  deductions they had made over that period. 

Money was taken from my housing benefit to recover the DHP, which left me in hardship again every month. This defeats the whole stated purpose of DHP awards.

However, I have since learned that DHP ‘overpayments’ are only deemed as such in certain circumstances, which are not applicable in my case. I should not have been asked to repay my DHP.

I also learned that deductions for overpayments CANNOT be made from ongoing housing benefit awards, Universal Credit awards or any other benefit. Housing benefit and DHP are seperate awards.

The council have violated rules that are clearly stated on the council’s own website as well as those set out in the government guidance for DHP

In a document called Discretionary Housing Payments Guidance Manual on the government website, it says: “A DHP cannot be recovered from on-going HB or UC. This is unlike HB overpayments where there is a regulatory provision to allow recovery from on-going HB. There are also no provisions for the recovery of overpaid DHPs from other prescribed benefits.”

It also says:  “You can only recover a DHP if you decide that payment has been made
as a result of:

 a misrepresentation or failure to disclose a material fact by the claimant (either fraudulently or otherwise), or
 an error made when the application was determined.”

Neither of those criteria apply. When the application was determined, I was not in receipt of PIP. The bedroom tax and council tax deductions were being made, and that  predated my application for DHP and was not through any fault of my own. The non dependent deductions continued until after I had notified the council of my PIP award, and I had to inform them of the rule about PIP daily living component and non dependent deductions myself before they reassessed my claim, because I read the rules about this on the government PIP website last year. 

I was then awarded the total amount that had been deducted for a ‘non dependent.’ I had to ring several times before the council tax I had paid was given back. The council had not even considered repaying me those deductions. I was not informed at any time that I may be asked to repay any of the DHP award, and I think it is fair to assume that the housing benefit department took the DHP award into account when they made their decision to pay me the deductions they had taken, and when they calculated the amount I was owed. 

The DHP section claimed I was overpaid despite the fact that this doesn’t tally with government guidelines, which outline what circumstances may be defined as an overpayment. None of the criteria applied to the circumstances of my claim. The guidance states that if the claimant has not contributed to an error, then they should not be asked to repay any DHP. 

The money was deducted from my housing benefit award from towards the end of last year, and throughout most of this year – I had to ring and ask for the weekly deductions to be reduced early this year as they were causing me hardship. The minimum deduction the DHP section said they could make was £10 per week, and they had been taking £20 per week.

It seems the council are not aware of the rules that apply to non deductions and PIP, or to DHP awards and the rule that says ‘recovery’ cannot be made by making deductions to ongoing housing benefit/Universal Credit. But it is too late for me to query or challenge the recovery as all of that DHP award period has now been taken from my housing benefit. I only found the government DHP guidelines this year, because another problem has arisen.

It seems that people who claim any support have to become welfare specialists in order to understand the rules and guidelines because many administrative authorities don’t seem to know them. Or perhaps they know about them but are reluctant to apply them until they have to.

Yet today I checked the council’s website and found a section on DHP administration, and the rules I have cited here are clearly written in their own guidlelines. 

It gets worse: another error

From April this year, the council had been making more ‘non dependent’ deductions for my other son who, they now tell me, was assumed to have left home because he was in university. That, they told me, left me with a ‘spare room’. The council did not tell me they had reduced my payments, or provide any explanation. The DHP section were also making deductions from my housing benefit, though my award from DHP was ended at the time. That is not supposed to happen according to the government and my local council’s rules.

The government guidelines say that if there is a deemed overpayment of DHP, it cannot be deducted from an ongoing housing benefit or universal credit award. I did not know this at the time, and the deductions continued until September, when I rang the council to ask why my housing benefit payments were so low, leaving me with a huge shortfall to find for my rent. I did know about the DHP deductions, but had assumed that the council were acting according to the rules. They told me that my son had left home and gone to university. I explained that he had not. Again. 

My youngest son left university last September. While he was at university, he returned home out of term times, and was therefore legally classed as living at home. 

The council had previously assumed my older son had left home too when he first went to university, but I found the rule on the government website that says if students return home – out of term times, for example – then they are legally classed as living at home and non dependent deductions cannot be made in these circumstances.

I challenged the decision to reduce my housing benefit at that time, because the council benefit office notified me of their intention. They ended the deductions for the ‘spare room’, because I provided evidence that my son returned home outside of term times.

However, I had NO notification about the decision to deduct money from my housing benefit for my younger son – a ‘bedroom tax’ – or any explanation why my benefit was reduced. He returned home out of term times (so was legally classed as living at home) and anyway, the dates that the housing benefit office applied the bedroom tax, my son had already left university and returned home permanently. As I am in receipt of PIP daily care component, they cannot make deductions for a ‘non dependent’ from my housing benefit. 

I challenged the underpayments and was paid the money that was deducted, again, as it was the councils’ mistake because they did not notify me about why they were making deductions, and gave me no opportunity to challenge the decision.

With the recent letter explaining how the reimbursment had been worked out from the housing benefit section, there was a notification from DHP section dated 25 September this year, thanking me for a claim I never made this year – they had retrospectively made an award and backdated it to last year, which I thought was very odd at the time I got the bundle of documents in the post.

Now, low and behold DHP section are claiming once again that I have been ‘overpaid’ for the period they retrospectively made the award (my rent allowance was more than £60 a month short at the time leaving me with more than £80 per month to find for my rent. DHP administrators now say they want more than half of what I was reimbursed by the housing benefit section back. However, as far as I was aware, that reimbursement was my shortfall in housing benefit, FROM the housing benefit office, which is not the same thing as DHP. The council can’t tell me what deductions had been made by DHP section and what deductions were made for the bedroom tax from the beginning of April to September this year

Going through my bank statements, I can see something isn’t right with what the DHP section are claiming because it doesn’t seem that I was paid the DHP for the most recent period. The amounts I received for housing costs were way too low, even accounting for the deductions for my son, made in error on the housing benefit sections’ part. And the housing benefit section would surely not reimburse DHP payments as they are seperate thing. Yet DHP section claim I have been ‘paid twice’. To complicate things further, DHP were making deductions from my housing benefit over some of this period too for the previous ‘overpayment’. 

I went through the housing benefit amounts I was originally paid on my bank statement over the last year and a half. The amounts I got over the period varied. Up until late September, 2017, it was clear that I was getting DHP, as the shortfall between my housing benefit and rent was £50. Then my overall housing benefit amount dropped by a further £20 fortnightly. This is the period that DHP now claim I was ‘overpaid’, yet I can’t see any evidence they actually paid me my award over this time span on my bank statement.

It’s very confusing and the lack of transparency regarding payment details means that I am struggling to work out exactly what was deducted for bedroom tax, what DHP were deducting at the time, and what they were actually paying me, since they claim they were making payments.

I asked the council yesterday for a breakdown of information regarding this matter yesterday and I was advised, unbelievably, to submit a Freedom of Information (FoI) request.

I’m not sure that people can submit FoIs about themselves. I think he probably meant meant a Data Subject Access Request (SAR), on reflection. However it should not be down to me to have to inform the council of the rules they ought to be following and to have to interpret badly worded advice. It’s reasonable to expect that council advisors give correct information and advice. 

In any event, bearing in mind that I have a month to submit my request for a review, and SARs often take quite a bit of time (and there’s no guarantee that the information will be provided), I think this was absolutely appalling advice. I asked for a precise breakdown of my payments and deductions – something you would expect a council to provide as a matter of transparency and as reasonable practice, and was subsequently presented with bureaucratic barriers to accessing that information.

The advisor I spoke to seemed as confused as me. I told him that DHP section are not permitted to make deductions from my ongoing housing benefit award, and he asked me where I got that information from. He then claimed that DHP can be deducted from a DHP award, implying that is what has happened. However, I pointed out that my DHP award had ended in April 2018 (it was awarded for one year) and DHP had been making deductions since then until October this year. He fell silent at that point. 

On my local council’s website, it says: “Where a DHP is found to have been overpaid the Benefit Service will consider whether it is appropriate to recover it in full, in part or not at all. As a general rule overpayments caused by official error will not be recovered, unless the customer caused or contributed to the error or was aware that too much was being paid.”

I did not cause or contribute to the error, nor was I aware if too much was paid or not.

It also says: “Notifications to the customer on overpaid DHP’s shall offer the opportunity
to seek a re-consideration.

63. Under no circumstances will recovery be sought for DHP from housing
benefit payments or universal credit payments due to the customer.”

So the advisor was claiming to be unaware of the council’s own rules, and furthermore, the council HAVE made deductions from my housing benefit award for DHP ‘overpayment’ from April to September this year when the council’s own rules state clearly that DHP administrators should not do so. 

It also says on the council’s website: “DHP overpayments can be written off in accordance with the authority’s current write off policy.”

If the council don’t consider that is an option in my case, as a disabled person who has been deemed ‘vulnerable’, it is highly unlikely they will for others in similar circumstances. 

I have now received an invoice for the amount DHP claims I was overpaid. However, the invoice has defined the overpayment as ‘housing benefit’, which is of course incorrect. I have been given 7 days to pay the amount. 

DHPs are discretionary and not subject to the statutory appeals mechanism, but they are subject to mandatory review.

Reading the government guidelines, the options available to DHP administrators are to a involve a debt collection agency and/or to take me to court if I don’t/can’t pay. I can’t pay. 

The council have told me to write a ‘complaint’. I was not informed of any further options.

However, reading the government guidlelines, my options are to ask for a review. If the matter is unresolved after that, I may then refer this matter to an independent council ombudsman. I can also ask for a judicial review. 

I shall be pursuing each of those options as necessary, if the situation remains unresolved.

I’m an ill and disabled person in receipt of PIP and the ESA support component. The council health and adult care section have assessed me and provided aids and adaptions in my home. The support I received from the council’s welfare service and occupational therapy has been excellent.

The housing benefit and DHP offices, however, have let me down very badly. My claim for DHP has actually increased my hardship in the longer term, and rather than mitigating the effects of government welfare reform and alleviating consequential hardships that affect vulnerable people, as intended, it has made my situation worse and caused me a significant amount of confusion, anxiety and distress.

I suffer with cognitive difficulties because of my illness, and trying to sort out mistakes made by the council and research the rules that the council ought to know about and apply has been both extremely stressful and difficult. I lost a night of sleep going through my bank statements yesterday. All of these events have seriously undermined my trust in the housing benefit and DHP offices, as these mistakes span over 2 years.

All of this very clearly highlights just how unfit for purpose government provision for ‘those most in need’ actually is.

I have two children, one still at university, both still live at home. I think that the political term ‘non dependents’ is a particularly nasty and authoritarian redefinition of adult children in poorer families, that undermines family bonds and attempts to redefine family relationships in terms of financial arrangements.

Neither of my younger sons can be defined as ‘non dependent’ because they still need a lot of financial and other kinds of support from me. I have a modestly sized 3 bedroomed house which has been adapted to meet my needs. There are no ‘spare rooms’, and my rent is actually relatively low. That said, the Local Housing Allowance (LHA) has been frozen for some years now, which means people like me have a large shortfall between the amount of housing benefit they can claim and the rent costs. 

The bedroom tax was a particularly spiteful Conservative policy aimed at the poorest citizens, and it has disproportionately affected disabled people. It’s a very authoritarian government that feels comfortable dictating the precise amount of living space some citizens are permitted, but then does not make any further provision to ensure that people can actually meet those mean spirited specifications. 

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Related

Discretionary Housing Payments Guidance Manual

 


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14 thoughts on “Council told me to submit an FoI for the details of my housing benefit award and alleged DHP ‘overpayments’

  1. Reblogged this on Worldtruth and commented:
    A criminal is given legal representation, a vulnerable disabled person is not. Without legal representation, it is unlikely that many disabled people are going to be able to navigate the “welfare” minefield this government with the aid of deficient councils and the DWP itself, are going to survive the ordeal they must face. Anyone still wondering, after reading this, why the UN special raportoire accused our government of discrimination against the disabled, should try living under this horrendous regime!

    Liked by 3 people

  2. You need to ask for a SAR, Subject Access Request, not FOI. There will be a charge for this, £10, but they can not refuse you. All information they hold on you they will have to supply, if you want to ask for your Council Tax paperwork I would suggest you put in a SAR for that as well as the two departments don’t work together.

    Liked by 1 person

  3. It is indeed a SAR request you need but you do need to word it carefully to ensure that ALL the information and data they hold on you is included. There are templates out there on the net to give you an idea. But be careful these councils will duck and dive and obfuscate more than the DWP and the Italian Mafia combined and are less trustworthy as you’ve already discovered. Record and copy everything. Good luck Kitty.

    Liked by 1 person

  4. I’m a data protection officer, and I work for the HB dept of my local authority. Your LA have treated you appallingly, and illegally. You do not need to submit an FOI request, what you need to make is a subject access request – they have 30 days from when they accept your request in which to provide the info. Ifthey do not do so in this time, you can complain to the Information Commissioner, who will investigate and if necessary force them to comply. Additionally, you should contact the local government ombudsman in relation to the incompetent handling of your claim.

    I am so sorry you have had to endure this.

    Liked by 2 people

    1. Thank you Alan, it does feel like I have been treated badly. Yes, I figured out that the advisor I spoke to on the phone must have meant a SAR, not an FoI. But he ought to take care when advising people to ensure he gives the right advice!

      I have to submit a mandatory review request within a month, so in that I will focus on the rules that have been violated, and the dates – which I have via letters and bank statements. If the SAR doesn’t come back in time, I can use that at the ombudsman stage, but if this is not resolved I do fully intend to take this to judicial review, which is my right, according to the government website

      Liked by 1 person

  5. Oh dear, it just gets worse doesn’t it? I really can identify with what you’re going through, having had very similar experiences with my council. It’s just atrocious that we have to spend so much time reasearching the laws and regulations and trying to explain them to the people who should know them already and then get them to abide by them. I’m getting palpitations now just thinking about it, and remembering the injustice, the powerlessness one feels. My thoughts are with you and I only wish there was some way I could help.

    Liked by 1 person

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