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Thread: Bedroom Tax discretionary payment

  1. #1
    Senior Member sea queen's Avatar
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    Bedroom Tax discretionary payment

    I know I have said in the past that i didn't think my daughter would get this and she hasn't - but should her DLA care componant be counted in with her monies each week?
    I always thought DLA was discounted when assessing benefits?
    Sea Queen

  2. #2
    davewhit
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    Quote Originally Posted by sea queen View Post
    I know I have said in the past that i didn't think my daughter would get this and she hasn't - but should her DLA care componant be counted in with her monies each week?
    I always thought DLA was discounted when assessing benefits?
    Its up to each council now under the new regulations many seem to be counting it as income

  3. #3
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    I try to offset it with "adult care costs", which is how debt advisers show it to creditors. Given they're discretionary payments, LAs can more or less do whatever they like.

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    Quote Originally Posted by sea queen View Post
    I know I have said in the past that i didn't think my daughter would get this and she hasn't - but should her DLA care componant be counted in with her monies each week?
    I always thought DLA was discounted when assessing benefits?
    LA's are not supposed to take DLA or any other disability/sickness related benefit into account.

    Have a look at my post here.

    http://www.youreable.com/forums/show...ll=1#post30548

    LA.s sometimes get away with counting DLA Care payments, but they can definitely not count Mobility, as this is specifically paid to obtain a Motability vehicle, maintain your own car, paying for taxis etc.

    I would quote what the Judge stated in The Burnip Case to the LA, and see what their response is. LA's will try it on, as they are aware that legal aid has been withdrawn for appeals to the First Tier tribunal, etc, etc.
    Last edited by vikstar; 04-10-2013 at 06:04 PM.

  5. #5
    davewhit
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    Quote Originally Posted by vikstar View Post
    LA's are not supposed to take DLA or any other disability/sickness related benefit into account.

    .
    Under new regulations they are able to take into account what they want, the draft regulations say on DLA

    "3.9 For example, you may, or may not, decide to disregard income from disability related benefits as they are intended to be used to help pay for the extra costs of disability. However, you may want to bear in mind that such money might be committed to other liabilities for which the money was intended, such as Motability schemes, provision of care etc."

    So central Govement point out whats DLA is for then say to local do as you want!



    People will need to appeal not getting Bedroom Tax discretionary payment and take it all the way to court

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    I agree with Davewhit. The fact is that the Government has given Local Authorities very little guidance on how the new LHA - Local Housing Allowance - should be administered. And even less on how to use the discretionary funds.
    As a result LA's can argue that DLA Care could reasonably be used to fund suitable accommodation, without even encroaching on DLA mobility at all.
    The potential for disputes and appeals seems to be huge. Discretionary funds are obviously limited, although in the case of my own LA we don't even know how much their fund is. The Councils themselves don't have a clue what demands will be made on their discretionary funds. They haven't had to deal with this situation before, and when their annual fund is gone it is gone. They can't ask the government for more.
    At the same time LA's are having to administer a huge chumk of the old discretionary social fund. Again with limited resources, and with no guidance at all from the government.
    I hope we don't lose sight of the fact that the LAs haven't asked for this. The changes have been imposed on them by government, and when it fails - as I'm afraid it will in many areas - it will be the government which is to blame.

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    In some part, I am not disagreeing with the previous two poster's responses.

    However, if all government legislation was totally legal, the Burnip, Tengrove and Gory cases would not have succeeded, and lets remember, the government has dropped its appeal to these rulings.

    Unless anyone else has other better suggestions of on what grounds the OP should challenge the decision to deny DHP ?, citing a statement made by one of the highest judges in the land can certainly do no harm.

    Personally, (depending on an individuals personal circumstances) if I could prove that the deduction in HB was in fact in breach of Article 14, I would go down the road of appealing to gain exemption, rather than applying for DHP.

    As always I am only providing options for the OP to take into account, to simply advise them to appeal, (which by the way would be an internal procedure with DHP, as opposed to external if appealing the reduction in HB due to The Bedroom Tax, as one should be exempt) is not that helpful really.

    Here is the full quote from Justice Henderson at paragraph 45 of "Burnip"

    45. "First, I think it is necessary to draw a clear distinction between the benefits which Mr Burnip was entitled to claim for his subsistence, and those which he was entitled to claim in respect of his housing needs. His incapacity benefit and disability living allowance were intended to meet (or help to meet) his ordinary living expenses as a severely disabled person. They were not intended to help with his housing needs. This is demonstrated, in my view, not only by the availability of HB and discretionary housing payments as separate benefits with separate rules applicable to them, but also by the way in which HB is structured. As I have explained, the amount of HB is fixed by reference to an applicable amount which represents what the claimant is taken to need to live on, and if a claimant's reckonable income exceeds his applicable amount, the amount of HB is reduced by 65% of the excess. Furthermore, Mr Burnip's applicable amount included the three disability premiums which I have mentioned, while the whole of his disabled living allowance was disregarded in the calculation of his reckonable income. Thus it was only if (in broad terms) his incapacity benefit and student loan together exceeded his applicable amount that any reduction would fall to be made in the amount of his HB; and to the extent that there was such an excess, the HB rules themselves prescribed how it was to be taken into account. It would therefore be wrong in principle, in my judgment, to regard Mr Burnip's subsistence benefits as being notionally available to him to go towards meeting the shortfall between his housing- related benefits and the rent he had to pay. "

    The whole of the ruling can be read below.

    http://www.bailii.org/ew/cases/EWCA/Civ/2012/629.html

    I am simply making people aware of potential arguments to make a challenge, not telling them to use them

  8. #8
    Senior Member sea queen's Avatar
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    I have spoken to Welfare Rights about this and was told that they can actually take into account the DLA as it is discretionary and based on a what is paid in and paid out. I was told although DLA is not taken into consideration for housing and council tax benefit it is different for discretionary - so if you have a bit of money left in your weekly pot with the DLA included - you probably won't be elegible for it!!
    Sea Queen

  9. #9
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    Quote Originally Posted by sea queen View Post
    I have spoken to Welfare Rights about this and was told that they can actually take into account the DLA as it is discretionary and based on a what is paid in and paid out. I was told although DLA is not taken into consideration for housing and council tax benefit it is different for discretionary - so if you have a bit of money left in your weekly pot with the DLA included - you probably won't be elegible for it!!
    I have never disputed what you have been told by Welfare Rights, It is entirely up to you on what your next course of action is.

    The less challenges that LA's receive, the happier they will be. You must of course take into account your daughter's well being in deciding whether you wish to challenge the LA.

    Best of luck in whatever you decide.

  10. #10
    Senior Member deebee's Avatar
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    can anyone remind me how long they have to look at it if you appeal a decision not to pay DHB

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