I have had a couple of appeals recently in which Reg 30 D&A regs/s9(6) SSA has been applied in a most annoying way. In the first case, the appeal had been to Tribunal and was on its way back from the Commissioner for a rehearing. The Commissioner had directed that the SoS set out the decision he wanted the tribunal to make in respect of the overpayment/supersessions etc. However, the SoS decided to revise the decision instead. This went unnoticed by me, the PO and the Tribunal. Now I am back at the Commissioner again and the SoS is arguing that the Tribunal had no jurisdiction to hear the appeal as it had lapsed under s9(6). We have had to enter an appeal 11 1/2 moths out of time against the revised decision.

In the second case, my client appealed against an IB decision which was then revised awarding benefit for another 2 months. This had little or no effect financially on my client as he was signing on and getting the DP by virtue of his DLA. If he was notified of the decision, he is not aware of it.

I am reasonably confident that I can get the late appeal accepted in the second one at least, but this provision seems horribly unjust.

Is there any scope for challenging the validity of Reg 30 on the basis that it puts too much power in the hands of the SoS in that he can effectively end the appeal by revising the decision to a trivial extent thereby denying appellants their right to a fair hearing under Art 6? I know they have a right of appeal against the newly revised decision, but that is not always a realistic argument as demonstrated in these two cases.

Hi Ian

It is an interesting point that you raise and I would need to think about it some more before commenting.

However, one avenue that may be worth exploring is that a failure to edequately explain , in the revised decision notice , that the appeal has been lapsed under Reg' 30 may breach the right to a fair hearing, largely because the appellant is still under the impression that they have a validly lodged appeal and that they have to take no further action in order to secure a hearing.

The result of that mistaken belief could be the loss of the absolute right of appeal and a reliance on the discretionary power to grant a late appeal.

Regards
Paul

I can't remember the details or where I saw it - possibly on the old Rightsnet board? - but I've definitely seen something to suggest that trivial revisions shouldn't be allowed to lapse appeals where this would amount to an abuse of process.

I think the argument may only have been relevant where the revision was extremely trivial e.g. I had a case around the time I saw this argument where HB revised a £700 overpayment by 11p and lapsed the appeal. I didn't try to use the argument because by the time I'd discovered it I'd already lodged the new appeal.

In you second case, where there is no practical advantage to the claimant, it must be at least arguable that requiring a fresh appeal, wasting a fair amount of public money, would be an abuse of process. However, I can't remember how this gets you round the fact that the legislation clearly says the appeal lapses.

Sorry if this a bit vague but it's Friday afternoon and my brain has already gone to the pub.

Keith