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Defective claims
I’m in a muddle about defective claims. I’m dealing with a council that recieved a number of claims from emergency accommodation residents which were not on a council’s claim form and which may not have met the council’s requirements even for the short claim form. The council sat on these for a very long time, until well after the claimants had left. The claimants are now untraceable and the charity, which thought at the time it had done enough to make a claim, is missing its money.
The council says it has no duty to process the claims as they were not in the correct form/were defective. My reading of reg 83(7) is that councils do not have an obligation to send out proper claim forms or request further information in this situation, but I think there may be some case law which says that they have to make a decision on the claim if they do not. Is this correct, or am I barking up the wrong tree?
No you are not barking up the wrong tree the council is simply wrong. See R(H)3/05].
I agree with chacha. For a LA to be taking this approach suggests either it is being deliberately obstructive or is so incompetent that a formal complaint is absolutely in order.
In my view, where a LA does not accept a claim that hasn’t been made on a non-approved form, it is most certainly obliged to give the clmt the opportunity to rectify the defect - that includes supplying the appropriate form. HBR 83(7) needs to be read in conjunction with HBR 83(1) and HBR 83(8A). Even if there is not an expressly stated requirement for a LA to send a form, I think it is abolutely an implied requirement if the LA doesn’t accept a non-approved means of claiming. On the “implied” point, there is no explicit requirement for a LA to forward an appeal to TTS. However, it was found in R(H) 1/07 that it was an implicit requirement. In my view, there are parallels in the principles of the two scenarios.
As it happens, I think that if a LA doesn’t accept a non-approved means of claim, HBR 83(7) DOES place a duty on the LA to provide such a form, or at least request further info / evidence - sub-para (b) more or less says that.
On the face of it, you have an almighty case for serious maladministration.
Further, in anticipation the LA will suggest the LL is not a “person affected”, take a look at CH/3186/2009. It substantially widens the argument(s) for who is, or is not, a person affected. My PERSONAL opinion is that this, and an earlier decision, are wrongly decided on the “person affected” point. However, I am in the minority with that view and, more importantly, it is legally binding until / unless the legislation is changed and/or the point is successfully challenged to the contrary.
Thank you both. Kevin- I can’t find the decision you mentioned on the upper tribunal web site. Can you email me a copy on .(JavaScript must be enabled to view this email address)?
This is a Welsh case- I’ve been down the ombudsman route already and I’ve now set up another topic about this in the light of your comments
CH/3186/2009: http://www.osscsc.gov.uk/Aspx/view.aspx?id=3169