Chapter 12: Principles of Proportionate Evidence

Managing Housing Benefit Claims in Supported Housing | Part C: Evidencing Claims: What Is Reasonable

The law

12.1 Regulation 86(1): only what is “reasonably required”

The wording. Regulation 86(1) of the Housing Benefit Regulations 2006 provides that a claimant, or a person who has been awarded Housing Benefit:

“shall furnish such certificates, documents, information and evidence in connection with the claim or the award, or any question arising out of the claim or the award, as may reasonably be required by the relevant authority in order to determine that person’s entitlement to, or continuing entitlement to, housing benefit and shall do so within one month of the relevant authority requiring him … to do so or such longer period as the relevant authority may consider reasonable.”

What the wording means. Four points follow:

Words	What they mean in practice
“reasonably required”	Not everything that might be relevant or interesting. What a reasonable decision-maker needs to decide the question in front of them.
“in order to determine … entitlement”	The purpose is entitlement to Housing Benefit. Information needed for commissioning, contract monitoring, regulation or licensing should be requested under those powers, not regulation 86.
“in connection with the claim or the award, or any question arising”	Requests can cover scheme-level questions, such as exempt status or service charges, because they arise out of the claim.
“within one month … or such longer period”	One month is the minimum. The council can and should allow longer where that is reasonable (DWP guidance, para 134).

Who the duty falls on. Regulation 86 “only imposes duties on ‘a person who makes a claim, or a person to whom housing benefit has been awarded'”. A landlord does not fall into either category (NSP v Stoke-on-Trent City Council and AT [2020] UKUT 311 (AAC), Judge Poynter, para 63). In supported housing:

• the council’s request is legally made to the claimant
• in practice, the provider holds most of the evidence and supplies it on the claimant’s behalf, with their written authority
• a provider that does not supply evidence that only it holds puts its tenants’ claims at risk, which is why providers have every reason to co-operate

Separate investigatory powers exist for fraud. They are outside the scope of this manual.

A co-operative process. In Kerr v Department for Social Development [2004] UKHL 23 (6 May 2004), Baroness Hale described benefit decision making as:

“a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.” (para 62)

If that approach is taken, “it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof”. Where something is still unknown, “generally speaking it should be determined against the one who has not done all they reasonably could to discover it”. The same applies “to information which the department can reasonably be expected to discover for itself” (para 63).

What this means for supported housing. The council should:

• ask clear questions tied to the conditions of entitlement
• use what it already holds, and what it can find in public registers, before asking for it again
• not count against the claimant a gap the council could have filled itself

The provider should:

• answer the questions asked, fully and promptly
• say clearly where information does not exist or cannot be obtained, and why
• not treat a reasonable request as an adversarial step

12.2 Proportionality, risk-based verification and reuse of evidence already held

Proportionality. The words “reasonably required” build proportionality into the test. A request is proportionate when the effort it demands is in line with the question it answers and the risk involved.

Scheme level and claimant level. Most of the evidence in supported housing is about the scheme, not the tenant. Separating the two is the single most effective way to reduce duplication:

Level	Examples	When to provide	Chapter
Scheme	Landlord status, constitution, lease, accounts, service description, staffing model, rent and service charge build-up	Once, at the start of the relationship or a new scheme, then on review or when something changes	13
Claimant	Tenancy, referral, needs assessment, support plan, evidence that support is delivered	With each new claim, and on review or change of circumstances	14

Each case must still be considered individually (DWP guidance, para 210). Accepting scheme-level evidence once does not stop the council from deciding each claim on its own facts. It means the council does not ask the provider to send the same constitution with every claim.

Risk-based verification. DWP circular S11/2011 allows councils to apply “different levels of checks to benefit claims according to the risk associated with those claims” (para 5). It is voluntary. A council that uses it must have a policy setting out its risk profiles and verification standards, approved by Members and reviewed annually (paras 4, 14 and 15). The circular was written for income and identity checks, but the principle applies equally to supported housing: concentrate effort where the risk is highest.

Applying risk to supported housing. A proportionate approach might distinguish between:

• established schemes, with a track record, commissioned services or a stable evidence file, where claimant-level checks can be lighter
• new schemes, new providers or schemes with warning signs (Chapter 11, 11.3), where scheme-level evidence should be tested more closely

Write down any risk approach, apply it consistently, and explain it to providers in general terms so they know what to expect.

Reusing evidence already held. Before asking for something, the council should check whether it already has it, for example from:

• an earlier claim at the same scheme
• its commissioning, housing options, adult social care or safeguarding teams, within the limits of data protection law (12.6)
• public sources, such as the Charity Commission, Companies House, the Regulator of Social Housing and the FCA mutuals register (DWP guidance, paras 99, 104 and 112)
• other councils where the provider operates across boundaries (DWP guidance, paras 207 and 208)

SHP’s position. Asking a provider to resend documents the council already holds, or that it can find on a public register in a few minutes, is not “reasonably required”. Under Kerr, those are gaps the council can fill itself.

12.3 When requests go too far

A request goes beyond what is “reasonably required” when it:

• asks for detail that the decision does not need. For example, minute-by-minute logs of every tenant contact, when a summary activity record would show the nature and frequency of support
• asks for information that does not exist. A provider that has never kept timesheets by tenant cannot produce them. The question is whether other evidence answers the same question
• asks for evidence a reasonable claimant or landlord could not produce. For example, independent valuations of every service, or professional assessments for tenants who were never referred by a professional
• asks for whole files. For example, complete support case notes or personnel files, when an extract or summary would do
• asks for the same thing repeatedly, with every claim or every review, when nothing has changed
• serves a different purpose, such as commissioning or contract monitoring, under the label of a Housing Benefit request
• uses a standard list that is sent regardless of the scheme or the question to be decided

Information that does not exist. The regulations recognise this. A person whose benefit has been suspended can satisfy the council “that the information or evidence so required does not exist” or “that it is not possible for him to obtain” it (Decisions and Appeals Regulations 2001, regulation 13(4)(b)). Where that is the honest answer, the provider should give it, explain why, and offer the best alternative evidence.

Complexity and capability. The council should “take into account the complexity of the information required and the capability of the claimant to provide it when considering a reasonable time limit” (DWP guidance, para 134). Many supported housing tenants cannot deal with evidence requests themselves. Requests should go to the provider, with the tenant’s authority, wherever possible.

SHP’s position on support records. Evidence that support is delivered should be proportionate: a support plan, a summary activity or contact record and plan reviews will usually be enough (Chapter 14, 14.6, and Chapter 15). Asking for full case notes rarely adds anything to the decision, and raises data protection concerns about sensitive personal information (12.6).

12.4 Explaining why: the council should state why information already held is not enough

What the law requires. A request must actually reach the person and must identify what is needed. In CH/1764/2008 [2008] UKUT 13 (AAC) (Deputy Judge Mark, 6 November 2008), the Upper Tribunal held that “a person can [not] be said to have failed to comply with a requirement of which he has no knowledge” (para 14), and criticised a letter that did “not adequately identify the information that had been requested” (para 24).

What good practice adds. The regulations do not expressly require the council to give reasons for each request. SHP’s position is that it should, because:

• the test is what is “reasonably required”, and the easiest way to show a request is reasonable is to say what it is for
• under Kerr, the council is the party that “knows what questions it needs to ask” (para 62). Saying what the question is helps the provider give the right answer first time
• a request that explains its purpose invites the provider to offer better or simpler evidence that answers the same question
• where the council already holds evidence on the point, saying why it is not enough avoids repeated requests and narrows any dispute

A good request. Appendix 9 provides a model letter. A good request:

1. names the claimant and the scheme
2. identifies the decision to be made, for example exempt status, a service charge or a rent increase
3. lists each item needed and why it is needed for that decision
4. says what the council already holds and why it is not enough
5. sets a reasonable deadline, at least one month, and says how to ask for more time
6. says that the provider can explain if something does not exist and offer alternative evidence
7. gives a named contact

12.5 Timescales, extensions and the effect of not responding

The time limit. The information must be provided within one month of the request “or such longer period as the relevant authority may consider reasonable” (regulation 86(1)). Councils should agree longer periods where the request is large, involves third parties or affects a whole scheme.

New claims. Where information for a new claim is not provided, the council decides the claim on the evidence it has. Under Kerr, a gap is generally determined against the party that has not done what it reasonably could (para 63). That can mean the claim, or the exempt part of it, fails.

Existing awards: suspension. For an existing award, the Decisions and Appeals Regulations 2001 set a strict process:

• the council may suspend payment “in whole or in part” where an issue arises about entitlement or a revision or supersession (regulation 11)
• where a person then fails to provide information, the council may suspend under regulation 13, but must first notify the person of the requirements of that regulation (regulation 13(3))
• the person then has one month from that notification, or a longer period, to provide the information or to satisfy the council that it does not exist or cannot be obtained (regulation 13(4))
• if they do, the council must, so far as practicable, restore payment within 14 days (regulation 13(5))

Termination. Entitlement ends from the date of suspension only where the person has still not complied after the regulation 13(4) period has ended (regulation 14(1) and (2)(a)). It cannot end in this way where payment was suspended only in part (regulation 14(2)(b)). In CH/1764/2008, the council suspended and then terminated benefit without sending a regulation 13(3) notice. The Upper Tribunal held that “the power to terminate only arose at the soonest one month after that notification had been sent”, so the claimant remained entitled (paras 21, 25 and 26).

Partial suspension. Because suspension can be “in whole or in part”, a council with a question about exempt status or a service charge can consider suspending only the part in dispute, while paying the part that is not. This protects tenants from arrears while the question is resolved. It also means entitlement cannot be terminated under regulation 14 for failure to provide information, because termination does not apply where payment has been suspended in part (regulation 14(2)(b)). The council instead decides the disputed part on the evidence it has.

SHP’s position on timescales. Before suspending, councils should check that the request reached the provider and the tenant, that it was clear, and that the provider has had a fair chance to respond. Providers should treat deadlines seriously, ask early for more time if needed, and say what is coming and when.

12.6 Data protection: lawful basis, sharing tenant information, data minimisation and retention

The starting point. “All parties requesting information will need to comply with the applicable General Data Protection Regulation legislation” (DWP guidance, para 135). That means the UK GDPR and the Data Protection Act 2018.

Lawful basis for councils. Councils process claim information to carry out a statutory function. That will usually fall within the public task basis in Article 6(1)(e) of the UK GDPR. Health and support information is special category data. Councils will usually rely on the condition for statutory purposes in Schedule 1, paragraph 6 of the Data Protection Act 2018, which applies where processing is necessary for “the exercise of a function conferred on a person by an enactment” and for reasons of substantial public interest. Councils should confirm the bases they rely on in their own privacy notices and policies.

Lawful basis for providers. Providers share tenant information with the council to support the tenant’s claim. They should:

• have the tenant’s written authority to act for them on the claim, and to share the information needed
• explain to tenants, in their privacy notice and at sign-up, what will be shared with the council and why
• identify their own lawful basis and, for health and support information, a special category condition

Data minimisation. Personal data must be “adequate, relevant and limited to what is necessary” (UK GDPR, Article 5(1)(c)). This lines up exactly with “reasonably required”. In practice:

• councils should ask for the minimum personal information that answers the question
• providers should send summaries, extracts or redacted documents where full records are not needed
• scheme-level evidence, such as staffing rotas or service descriptions, should not include tenants’ personal data at all

Sharing information with landlords. Councils can share information about a tenant’s claim with a landlord only where the law allows, usually with the tenant’s agreement. Many councils publish how they do this (for example, Oxford City Council). Where a landlord appeals a decision, the claimant is always a respondent and is entitled to see the appeal papers (NSP v Stoke-on-Trent, para 3(a)). Providers should bear this in mind when deciding what to include in submissions.

Fraud and error checks. The data protection exemptions for crime and taxation, including for risk assessment systems operated by authorities administering Housing Benefit, apply only to the extent that complying with the normal rules would prevent the system from working effectively or prejudice the purpose (ICO guide to the exemptions). They are not a general reason to collect more than is needed for an ordinary claim.

Retention. Personal data should be kept “for no longer than is necessary” (UK GDPR, Article 5(1)(e)). Councils and providers should have retention schedules that cover claim evidence, including copies of scheme-level documents, and should delete or archive them when they are no longer needed for the claim, any appeal, or audit and subsidy purposes.

SHP’s position. Data protection is not a reason for a provider to refuse a reasonable request, and it is not a reason for a council to demand everything. Both sides should agree in advance what will be shared, in what form, and how it will be stored.

The guidance

Para	What the guidance says	SHP’s view
134	Councils can request further evidence, to be provided within one month or longer, taking account of the complexity of the information and the claimant’s capability.	Consistent with regulation 86. Requests in supported housing should usually go to the provider, with the tenant’s authority.
135	All parties must comply with data protection law when personal data is transferred.	Agreed. See 12.6.
145 to 149	Need should be assessed by a suitably qualified person, with reference to the National Statement of Expectations. The absence of a formal assessment does not mean there is no need (para 147), and public funding of support is a reasonable indication of need (para 148).	Agreed. Councils should ask for the assessment that exists, not a new one in a prescribed form. Chapter 14 covers this.
168, 196, 238	Request a rent breakdown with each new claim or rent increase.	Agreed for new schemes and increases. For other new claims at an established scheme, the current scheme breakdown should be enough (12.2).
99, 104, 112, 131	Councils can check public registers such as the Charity Commission and Companies House.	Agreed. Councils should check these first, before asking the provider (Kerr, para 63).
207 to 210	Collaborate within and between councils; consider each case individually.	Agreed. Collaboration is the basis for reusing evidence and reducing duplicate requests.

Good practice

For councils:

• Start every request with the decision to be made and ask only for what that decision needs.
• Keep a scheme file and reuse it. Ask for scheme-level evidence once, and update it on review or change.
• Check internal records and public registers before asking the provider.
• Say why you need each item and why what you already hold is not enough (Appendix 9).
• Allow at least a month, more for large or scheme-wide requests, and agree extensions sensibly.
• Accept an honest explanation that something does not exist, and consider alternative evidence.
• Follow the regulation 13 notice process before suspending, and consider partial suspension.
• Write down any risk-based approach and apply it consistently.
• Ask for summaries and extracts, not whole files, and keep personal data to a minimum.

For providers:

• Get written authority from each tenant at sign-up to act for them on their claim and share the information needed.
• Prepare a scheme evidence pack (Appendix 4) and keep it up to date, so that scheme-level requests can be answered quickly.
• Keep proportionate records of needs, support plans and delivery that can be summarised without sending whole files (Appendices 5 to 7).
• Answer requests fully and on time. If something does not exist, say so and offer an alternative.
• Ask for more time early, with a reason, if you need it.
• Redact or summarise personal information that the council does not need.
• If a request seems to go too far, ask the council what decision it relates to and offer evidence that would answer that question.

Evidence

A proportionality check for any request. Before sending or answering a request, both sides can ask:

Question	If the answer is no
Is it clear what decision the information is for?	Identify the decision first
Is the information needed for that decision?	Do not ask for it
Does the council already hold it, or can it find it easily?	Use what is held or publicly available
Is it scheme level or claimant level, and is it being asked for at the right level?	Move it to the scheme file
Is there a simpler form, such as a summary or extract, that would answer the question?	Ask for or provide the simpler form
Does it exist, and can the claimant or provider reasonably obtain it?	Accept an explanation and consider alternatives
Is the time allowed reasonable for the amount requested?	Agree a longer period
Is the personal data limited to what is necessary?	Redact or summarise

Finding common ground

Agree an evidence protocol. Councils and providers in an area can agree, in writing, what scheme-level and claimant-level evidence will normally be provided, in what format and how often it will be reviewed. Chapters 13 to 15 and Appendices 4 to 7 give a starting point.

Name a contact on each side. Most delays come from requests going to the wrong person or replies going unanswered. A named contact at the council and at each provider solves most of this.

Talk before writing. A short call to explain what the council needs, and what the provider holds, often replaces a long letter and a long reply.

Review together. An annual review of the scheme file is an opportunity to update evidence, raise concerns early and agree changes, rather than deal with them claim by claim.

Key cases and cross-references

Case	Point	Chapter
Kerr v Department for Social Development [2004] UKHL 23	Co-operative process; council asks, claimant supplies; gaps determined against the party who did not do what it reasonably could, including the council	12
NSP v Stoke-on-Trent City Council and AT [2020] UKUT 311 (AAC)	Regulation 86 duty falls on the claimant, not the landlord; claimant always a respondent to a landlord’s appeal	12, 20
CH/1764/2008 [2008] UKUT 13 (AAC)	Request must be communicated and identify what is needed; regulation 13 notice required before suspension leads to termination	12, 20

• Related chapters: Chapter 2 (2.6, regulation 86); Chapter 11 (11.6, proportionate enquiry); Chapters 13 to 16 (what is reasonable to ask for); Chapter 19 (decisions and notifications); Chapter 20 (appeals)
• Appendices: Appendix 4 (scheme evidence checklist); Appendix 5 (claimant evidence checklist); Appendix 6 (needs assessment and CSS plan); Appendix 7 (activity log); Appendix 9 (model regulation 86 letter)

Sources

• Housing Benefit Regulations 2006, regulation 86: https://www.legislation.gov.uk/uksi/2006/213/regulation/86
• Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001, regulations 11, 13 and 14: https://www.legislation.gov.uk/uksi/2001/1002
• Kerr v Department for Social Development [2004] UKHL 23: https://www.bailii.org/uk/cases/UKHL/2004/23.html
• NSP v Stoke-on-Trent City Council and AT [2020] UKUT 311 (AAC): https://assets.publishing.service.gov.uk/media/5fc65fa28fa8f5474d282a64/CH_2383_2018-00.pdf
• CH/1764/2008 [2008] UKUT 13 (AAC): https://administrativeappeals.decisions.tribunals.gov.uk/judgmentfiles/j2563/CH%201764%202008-00.doc
• DWP circular S11/2011, Risk-Based Verification: https://assets.publishing.service.gov.uk/media/5a81fa64e5274a2e8ab56d9d/s11-2011.pdf
• DWP guidance for supported housing claims: https://www.gov.uk/government/publications/housing-benefit-guidance-for-supported-housing-claims/housing-benefit-guidance-for-supported-housing-claims
• Data Protection Act 2018, Schedule 1, paragraph 6: https://www.legislation.gov.uk/ukpga/2018/12/schedule/1/paragraph/6
• ICO, A guide to the data protection exemptions: https://ico.org.uk/for-organisations/uk-gdpr-guidance-and-resources/exemptions/a-guide-to-the-data-protection-exemptions/
• Oxford City Council, sharing a tenant’s information with their landlord: https://www.oxford.gov.uk/benefit-landlords/sharing-tenants-information-landlord

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