Any legal minded guru's out there who can help in an overpayment case. The amount concerned would buy a decent ferrari

I've got a client who failed to appeal a LTHAW decision stopping benefit because she was told by the fraud officer concerned that she wouldn't get benefit. She received the O/P decision and appealed this and it was taken as a late appeal against the LTHAW decision but refused. The O/P tribunal comes up soon and I'm hoping they'll look at the LTHAW but it doesn't appear certain they will. The sad part is that she's amassed a ton of evidence which goes well against what looked a solid DWP case.

Reg 32 says you can't renew an application for late appeal that has been turned down. Does that mean I can't ask for it to be reconsidered and now include all the evidence thats being collected by her.

Also Reg 32(10) says a brief summary be supplied when the panel member decides whether to allow the late appeal but all she got was a terse no and a signature. Any mileage in that.

We have had situations like that here and our District Chairman goes MAD if the late LT appeal has not been admitted because he cannot make a 'fair' decision on the OP.He has gone back to the chairman at TAS and persuaded him to admit the late LT appeal on grounds of natural justice etc and then heard the 2 appeals together. Unfortunately it is very common for the LT appeal to be late as claimants tend not to appeal until they get the OP decision asking for large sums of money.

I am concerned that your client was put off appealing because of what the officer said, but cannot comment further.

Cheers Judith
That a chair thinks that way is reassuring, especially where, as in this case, the client's now been able to put together so much to contest the LTHAW decision which is mostly based on inference and mistake to fact. The option to go back and ask for the late appeal to be looked at again therefore seems a goer.

It does appear that there's a major drive on in this area against LTHAW and theres been more than a few cases raising their heads in recent weeks. Some decisions are appallin. One concerns a woman found LTHAW and her supposed partner lives 50 miles away in his own accomodation. The evidence used against her for the LTHAW is pure garbage, flimsy to say the least. In that instance the client says the officer concerned told her she wouldn't be chased for back arrears if she came off benefit. Naughty

Can you not just make a supersession request against the original decision, on grounds that it was made in ignorance of material facts (that is, all the evidence you now have)? It would only take effect and restore benefit from the date of application, but would be a legitimate challenge against the original decision with appeal rights.

And then if the DWP decide not to supersede or haven't moved at all can you not ask the tribunal hearing the overpayment case to consider whether they can stand in the shoes of the DWP and make the supersession themselves, under the War and Peace decision on supersessions. Thereby bringing the matter of the LTAHAW into their jurisdiction and making the overpayment case intelligible.

(I do apologise if the answer is an unequivocal NO)

And I don't see why you can't renew a late appeal application given the alternatives. One thing's sure - if you don't ask you won't get!

Are there any thoughts about pursuing a HRA argument over a fair hearing and the finality of the LTAHAW late appeal request?

You could also consider possible judicial review for refusal to let in the lare appeal under the grounds of fair hearing, natural justice and reasons. It might be worth speaking to the Public Law project on 0808 808 4546 about it.

I recall another case where a DC set aside the paper hearing decision on LTAHAW at the OP hearing and relisted them to be heard together.

You'd have to argue that it is in the interests of justice to reopen the first case as there can be no fair hearing of the case of whether the OP is recoverable.

The weight of evidence you've got and the amount of the overpayment would arguably show that the interests of justice outweigh any other considerations.

Hi John
This is unusual that everyone who responded has suggestions that are worth following. I was simply going to request the chair go back to the late appeal request in view of the evidence she's put together but the supersession also sounds attractive. The appeal hearing is early October so I've just sent off a postponement request. Follow this up with request for look at late appeal again and at same time go for supersession with all the evidence she's piled up.

If they won't allow late appeal then I'll argue at the hearing that LTHAW has to be considered for a fair hearing. I haven't thought yet about HRA but will have to if late appeal recon is refused.

Fingers crossed

Helen who works alongside me has pointed out that it sounds as though I'm being sarcastic where I said above that all suggestions worth following. Just wanted to put record straight not the case. I was grateful for all the responses and found them really helpful.

Put it down to being born a yorkshireman

You might have some mileage in a recent decision of Mr Commissioner Mesher CIS/4434/2004 where he held that a LTAHW detetrmination of itself is not grounds for superesession resulting in the outcome overpayment decision.

It will be necessary to do a proper assesment of entitlement (ie a proper assesment of income, capital, and applicable amount) first before concluding that there is an overpayment.

The proper decision must of course be notified and there will be appeal rights. There must be a right of appeal against any determination embodied in that decision, including of course the LTAHW determination

There is a summary of a CIS/4434/2004 in the briefcase area of rightsnet together with a link to the full decision available on the osscsc.gov.uk site.

Thanks for that. The CD looks hopeful, especially as this LTAHAW decision mentions nothing about the effects on IS.

Why not just argue the LTAHAW at the overpayment appeal as a 'material fact'?

Overpayments can only be recovered if "...failed to disclose... misrepresented....a material fact." Presmuably, the dept in your case are saying that the 'material fact' not disclosed is the LTAHAW. You just argue that there was no material fact to disclose because they weren't LT and here's the evidence...

That way, you don't have to worry about a late cohab appeal.

I sent all the evidence with a request they revisit the late appeal application and now its beeen allowed so both appeals will be heard together.

The transcriptions and tapes of the interviews have just arrived and they're very interesting. An exercise in how wrong inferences can be arrived at. Client has a lean to out back and described it as such at interview. By the time it got to the decision it had grown into a conservatory. Lots of other inferences which dont hold up.

At the start of the interview its fairly obvious that my client didnt understand the caution and the investigating officer had to split it up into its parts. I visted her, read out the caution and asked to tell me what it meant and she didn't have a clue. Turns out she went to a special school but keeps this hidden through embarassment.

Doesnt PACE have something to say about vulnerability and having an appropriate adult at the interview when its clear the clt has problems. It angers the hell out of me that my client obviously didnt have a clue and the investigating officer didnt pick up on her difficulty.