Regulation 86 Overreach

Reg 86 Overreach: How to Push Back (Lawfully) on Councils’ Information Requests TL;DR (for busy SEA leaders) • What Reg 86 actually says: you must provide only the certificates/documents/information that are reasonably required to determine entitlement or continuing entitlement to HB—nothing broader. There’s a standard time window (usually one month) but it can be extended where reasonable. • Key limit: requests must have a direct connection to deciding HB entitlement. They can’t turn Reg 86 into a general compliance audit or governance fishing expedition. Upper-tier case law frames Reg 86 as a targeted entitlement test, not an open book. • Policies don’t expand the law: RBV and local verification policies confirm the council needs enough info to assess entitlement—but the regulations don’t prescribe specific documents and do not authorise unlimited trawls. • Your move: respond fast, narrow the scope to entitlement, offer proportionate alternatives, and (where needed) seek a reasonable extension. If refusal is threatened, require the council to particularise the link between each item requested and the decision to award/restrict HB. == 1) The Law in One Page (plain English) Regulation 86 of the Housing Benefit Regulations 2006 (SI 2006/213): • A claimant (or person awarded HB) must provide certificates, documents, information and evidence as may be reasonably required by the authority to determine entitlement or continuing entitlement. • The authority normally allows one month to supply, with discretion to allow longer where reasonable. • The regulation does not oblige furnishing material that is not reasonably required for the entitlement decision. Case signal: An Upper Tribunal decision explains that Reg 86 applies only to what’s needed to determine entitlement; it is distinct from provisions about payment mechanics. In short: targeted to the question “is HB payable and at what level?”, not a blanket audit power. Policy backdrop (RBV): Councils acknowledge in RBV/verification policies that the regulations don’t specify exact documents; the test is obtaining sufficient information for an accurate assessment—no more.   2) What Counts as “Reasonably Required” (SEA context) “Reasonably required” depends on the decision at hand. Typical, entitlement-linked requests include: • Tenancy and rent: tenancy/licence, rent schedule, service-charge split, evidence of eligible vs ineligible items, invoices or workings for IHM where it affects eligible rent. • Household status/income: proof of income/capital (for working-age non-UC cases), occupancy verification where it affects room eligibility or non-dep deductions. • Specified/Exempt category: evidence supporting qualifying status (e.g., landlord/arrangements, support/care/supervision model) because this can disapply certain restrictions and affect the rent decision. Not normally reasonably required (red flags) unless the council shows a clear entitlement link: • Organisation-wide HR/governance packs: staff contracts, DBS scans for all staff, board minutes, general safeguarding audits—unless a specific entitlement issue turns on them (e.g., whether support is in fact provided by/for the landlord per the category rules). • Resident-irrelevant data: support notes for other tenants, medical records unrelated to the claimant, bulk data extraneous to the claim. • Open-ended “all documents” requests without specifying the decision point they’re trying to resolve. These are classic scope-creep examples where councils slide from HB entitlement into wider regulatory inspection without a statutory footing under Reg 86. The proper test remains entitlement/continuing entitlement. 3) Overreach Patterns We’re Seeing (and the lawful counter) Council request pattern Why it’s problematic under Reg 86 Lawful counter-move “Send all staff HR files / DBS scans” Generic governance check; not tied to a claim decision Offer role/competence confirmation relevant to the claimant’s support provision; redact extraneous personal data; ask the council to particularise the link to entitlement “Provide full monthly support notes for every resident in the scheme” Bulk third-party data; exceeds what’s needed to assess this claimant’s eligible rent/category Provide claimant-specific evidence (e.g., pattern/log summary for the claimant) and a model of support delivery for the scheme; decline third-party data “All bank statements for the provider” Fishing expedition; rarely determinative of HB entitlement Instead: provide rent breakdown, costings, and IHM methodology as relevant to eligible charges “Entire safeguarding/audit packs” These are sector-oversight materials, not HB entitlement docs Provide policy extracts only where the category test truly turns on them; otherwise point to the narrow entitlement test Authorities’ own RBV policies support proportionality: gather enough to assess entitlement, but the regulations do not prescribe endless document types. 4) Data Protection Overlay (useful leverage) Even when information is relevant, UK GDPR principles (data minimisation, purpose limitation) reinforce scope control—especially for special category data in support notes. Provide claimant-specific, proportionate extracts or summary evidence rather than bulk dumps. (Reg 86 doesn’t trump data protection; it must be read compatibly—and the council can usually make its decision from proportionate, targeted evidence.) (Cite GDPR principles in your letters; it often resets expectations.) 5) Scripts & Templates (copy/paste) A) “Narrow the Scope” Letter (when the list is excessive) Subject: Reg 86 Request – Scope and Proportionate Evidence Dear [Officer], Thank you for your letter dated [date]. Regulation 86 allows the authority to request documents reasonably required to determine entitlement or continuing entitlement to Housing Benefit. On that basis, please could you particularise for each requested item how it is required to decide entitlement in this claim. We will provide claimant-specific, proportionate evidence addressing: tenancy/rent composition (including eligible service charges and IHM methodology), the supported/exempt category, and any income/household facts material to assessment. We will not disclose bulk third-party files (for other residents) or organisation-wide HR/safeguarding packs, as these are not required to determine entitlement and would breach data-minimisation principles.   If you believe additional items are necessary for the entitlement decision, please list them item-by-item with the related decision point (e.g., eligible rent component, category test, household assessment). We will then provide tailored evidence or a proportionate alternative. Kind regards, [Name], [Role] (HB Reg 86; see also UT commentary distinguishing entitlement from payment). B) “Partial Compliance + Extension” (when you need time) Subject: Reg 86 – Evidence Enclosed and Reasonable Extension Request Dear [Officer], Please find enclosed material addressing the entitlement questions in this claim. We are compiling [specific items], which require redaction and collation to comply with data-protection duties. Under Reg 86 the authority may allow longer than one month where reasonable. We request an extension to [date] to deliver the remaining claimant-specific items. In the meantime, if any further item is considered necessary, please identify the entitlement decision point it addresses so we can supply the most proportionate evidence. Kind regards, [Name] C) “Adverse Inference – Pre-Emption” (if refusal is threatened) Subject: Proposed Refusal – Need for Particularised Reasons Dear [Officer], We note the proposal to refuse/suspend on the basis of missing information. Reg 86 permits requests reasonably required to determine entitlement. Please identify precisely: 1. the entitlement issue you cannot resolve; 2. the specific document required; and 3. why proportionate alternatives (e.g., claimant-specific summaries/extracts) would not suffice. We are ready to provide targeted evidence aligned to the decision points. A generalised refusal for not supplying organisation-wide materials would be misdirected in law. Kind regards, [Name]   6) Fast Evidence Pack (what to include without over-sharing) • Tenancy & rent: licence/tenancy; rent schedule; eligible charges table; brief IHM methodology (what tasks, frequency, role delivering them, why necessary for occupation). • Category (specified/exempt): short service model note (who provides support, by/for whom, how it is accessed/recorded), sufficient to show it meets the definition—without disclosing other residents’ records. • Claimant-specific support indicators: proportionate extracts/log summaries demonstrating support/care/supervision relevant to occupation, avoiding unrelated special-category data. • Income/household (where material): payslips/bank statements per standard verification (or UC passport where applicable). 7) Council RBV Policies—Use Their Words • “Regulations do not specify what information and evidence [the council] should obtain”; the goal is accurate assessment of entitlement. Quote this back when lists are indiscriminate. • Policies often restate Reg 86 as the legal basis and emphasise proportional verification. Addendum to RBV Policies RBV = Risk-Based Verification. In Housing Benefit (and often Council Tax Reduction), an RBV policy is a formal, published approach a council adopts to decide how much evidence to ask for on a claim, based on the assessed risk level of error or fraud. What it does • Scores claims (and some changes of circumstance) as Low / Medium / High risk using a DWP-approved tool plus local rules. • Sets evidence tiers by risk: o Low: minimal verification (e.g., rely on DWP/UC data, one document). o Medium: a few extra checks. o High: fuller verification (old “standard” style). • Explains governance: who owns the policy, audit trail, annual review, training, and how exceptions are handled. What it does not do • It doesn’t change the law. Councils must still stick to HB Reg 86 (only request what’s reasonably required to determine entitlement). RBV is an admin framework, not extra powers. • It doesn’t mandate specific documents in every case; it guides proportionate verification. Why it matters (SEA / supported housing context) • RBV helps push back on blanket “send everything” lists. Most RBV policies themselves admit the aim is to gather sufficient info to assess entitlement—not to conduct general audits (HR packs, other residents’ notes, etc). • You can ask officers to state the risk rating and explain why each item is needed for the entitlement decision. Quick uses in correspondence • “Please confirm the RBV risk band for this claim and the associated evidence tier. For any item requested, set out how it is reasonably required to decide entitlement under Reg 86.” 8) When to Escalate • Stalemate on scope: ask for a written decision (so you can appeal) rather than trading emails forever. • Suspension used as pressure: request written reasons tying each withheld item to an entitlement point; reply with targeted alternatives and seek reinstatement. • Pre-action posture: where a blanket policy is applied (e.g., “we always need X for SEA”), consider that policy-fetishism can be unlawful if it fetters discretion. In rare cases, public-law remedies (complaint/JR) may be appropriate; there’s precedent of councils changing course under challenge on Reg 86 issues. Cornerstone Barristers 9) One-Page Reference (pin this) Reg 86 lets council’s request: Only what’s reasonably required to decide HB entitlement. It does not allow: Open-ended audits, unrelated governance trawls, or bulk third-party data grabs. Good evidence looks like: • Claimant-specific tenancy/rent breakdown and eligible charge logic (incl. IHM method). • Short category note explaining who provides support and how, tied to the HB category test. • Only the income/household proofs material to assessment. Your standard reply kit: 1. Narrow to entitlement issues. 2. Particularise (ask them to link each item to a decision point). 3. Offer proportionate alternatives and redactions. 4. Log and meet timelines, requesting extensions where reasonable. Sources (key) • Housing Benefit Regulations 2006, Reg 86 (duty to furnish info reasonably required; time limits). • Upper Tribunal commentary distinguishing entitlement (Reg 86) from payment mechanics (Reg 91)—scope is targeted to entitlement. • Council RBV/verification policies (confirm regs don’t prescribe specific docs; aim is sufficient info to assess entitlement). • guidance on supported housing categories (context for what evidence is relevant to category/eligibility). • /Shelter notes on typical evidence for HB claims (income/tenancy proofs—helps calibrate “reasonable”)