Novitskaya v London Borough of Brent & Anor [2009]


This Court of Appeal decision considers what constitutes a valid claim for housing benefit, particularly in circumstances where the benefit itself is not mentioned in a claim.

The judgment is also relevant to other benefits.


The claimant, Mrs Novitskaya, arrived in the United Kingdom from Uzbekistan on 29 July 1999 and claimed asylum on the day of her arrival. She was granted refugee status on 6 May 2004 and notified of this on 12 May 2004. By virtue of schedule A1 to the Housing Benefit (General) Regulations 1987, housing benefit can be backdated to the date on which the claim for asylum was recorded if an appropriate claim is made within 28 days of notification of the grant of refugee status. She therefore had until 9 June 2004 to claim housing benefit.

She failed to meet this deadline but on 18 May 2004, she became entitled to income support. Regulation 72(5) of the Housing Benefit (General) Regulations 1987 allows a person entitled to income support, to claim housing benefit within 28 days of the claim for income support.

Under this regulation housing benefit is backdated to the date of the income support decision. In this case the claim for housing benefit needed to be made by 15 June 2004. On 10 June 2004, the day when she was given a claim form for housing benefit, she completed and gave to the DWP a statement saying that she would like her benefits "income support or whatever else" she was entitled to be backdated from the date she became an asylum seeker.

The law

Regulation 72 (1) of the Housing Benefit (General) Regulations 1987 states that:

"Every claim shall be in writing and made on a properly completed form approved for the purpose by the relevant authority or in such written form as the relevant authority may accept as sufficient in the circumstances of any particular case of class of cases."

Regulation 72 (6) (7) and (8) of the Housing Benefit (General) Regulations 1987 make provision for remedies where the initial claim was defective.

In this case if the statement made by the claimant on 10 June was accepted as a claim for housing benefit but was considered to be defective the remedy would be to supply the claimant with an approved form, which has to be returned within 4 weeks of the date it was sent.

The Court of Appeal decision

Following Kerr (AP) (Respondent) v. Department for Social Development (Appellants) ( Northern Ireland ) [2004] it was held that:

"..where provision is made for defective claims, the function of "a claim" is not only to meet conditions on which some right to a benefit depends. It may have a lesser objective, namely that of placing the authority which is required to scrutinise a claim in a position to know that a claim for a particular benefit is being made."

However this requirement only applies if it is clear that a claim has been made.

"In my judgment, ... any "claim" must make it clear that a claim is being made. As I see it, this clarity can be obtained from the document itself or that document interpreted in its context. It is not, therefore, in general enough to send in a medical certificate without indicating that a claim is being made for a benefit. Thus, it does not appear that the inquisitorial duty of the authorities would necessarily extend to asking a claimant, who had sent in a medical certificate, whether he proposed to make a claim for some sickness or incapacity benefit. In this case, however, it made no sense for the claimant to ask for claims to be backdated if no claim was actually being made. There is, moreover, nothing to suggest that the claim was not then being made."

There is no requirement for benefit claimed to be named.

"In my judgment, there is no justification for a requirement that every benefit being claimed must be expressly named. Reg 72 [of the Housing Benefit (General) Regulations 1987] ...... provided that the reasonable official receiving the document can understand, with or without further information, which benefits are being claimed, there is no reason to have an express reference to them. The claimant might, after all, not know the correct name of the benefit that she needed. It cannot have been the intention of Parliament that she should go without the benefit because she did not know the right name. In my judgment, it is clear from paragraphs (6), (7) and (8) of reg 72 that Parliament did not intend that the courts should approach the question of what is a claim in an over-technical way: that would defeat the object of the legislation. The form, after all, was to be completed by persons who included refugees would only have arrived in this country relatively recently. I do not consider that the reasonable official would be under any doubt but that, if Mrs Novitskaya was arguably entitled to housing benefit, she was making a claim for that benefit. This is confirmed by the fact that (as it appears) an official applied the words "HB and income support" to her statement."

The appeal therefore succeeded. The 10 June statement was a defective claim, which was remedied when the claimant submitted a completed claim form on 24 June.

DWP guidance

The DWP guidance (see Memo DMG 3/10) now suggests three principles for determining whether a claim, which is not on an official form can be considered a defective claim.

The first is that it must be clear from the document that the claimant wishes to claim benefit and is not, for example, just asking for information.

The second principle is that the particular benefit does not necessarily have to be named in the written document , although the guidance suggests that this is up to the discretion of the decision maker.

The third principle established is that, in determining whether a defective claim for benefit was made, the written document should not be looked at in isolation. It must be looked at along with any other information such as other documents provided by the claimant at the time, or statements that they have made in a telephone or face to face conversation.

Where a claim is considered to be defective a claim form should be sent to the claimant to complete. The claimant has one month, or such longer time as is considered reasonable, to return the claim form to the Department. Upon receipt within these timescales the date of claim will be the date of receipt of the original notification.

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