The issue is concerning the constrution of regulation 3(1)(b)(iii) of the Housing Benefit And Council Tax Benefit (Decisions And Appeals) Regulations.

The authority are argueing that this regulation requires that an appeal is made in respect of someone who 'IS' liable to make payments of rent.

Heres the councils arguements:

The council maintains that at the time the agent (holding power of attorney) made the appeal Mr P (the claimant) was not paying rent as he had moved on. Therefore the appeal is not validly made.

The council go on to argue that the regulation also allows for such appeals to be made where the person is unable to make the appeal themselves. The council maintains that there was and is no bar to the former residents making the appeal themselves. It was not therefore open for the agent to make the appeals.

________

The reason the agent (with power of attorney) made the appeal was due to the fact that the claimant has moved out the accommodation, has moved elsewhere and it was not known where he had gone - in this sense he is for the time being unable to act.

I would like to get some help formulating my response (as the representative) - the council have hired a barister - would anyone be kind enough to help?

Thank you all for any help offered.

You won't like this...

Although I haven't given this an in-depth analysis, my initial gut feeling is that the LA are correct. However, much is going to depend on the type of Power of Attorney.

I'm not an expert on PoA, but if its terms only covered the period for which the clmt was a tenant for the agent, I strongly suspect that the LA will be successful in arguing that the agent is not acting for the clmt at the time of appeal.

If the above is correct (& others with better knowledge of PoA may be able to help), the LA would be correct that only the clmt has the right to appeal (or a more recent PoA, or appointee under HBR 71).

Regards

Hi Kevin

The Power of Attorney granted was a General Power of Attorney under the Powers of Attorney Act 1971. The power granted stated that the power could be revoked by the doner in writing.

None of the doners have revoked the power.

The particular aspect I am wanting advice around is the arguements that reg 3 uses the terminology 'is liable to make payments' and 'is unable for the time being to act'. If the claimant has left the property surely it cannot be said the he 'is not liable to make payments' thus cannot grant an attorney to act on his behalf in regards to an appeal - this would seem nonsensical.

I have no problems that the power of attoney continue to exist once the claimant leaves the property.... my problem is the contruction of reg. 3.

What I am saying is that 'is liable to make payments', must surely mean 'is' or 'was' liable to make payments - any other reading would seem to me to bring about a ridiculous conclusion.

Thanks for the help.......

Tough one - and I don't have anything other than your own argument of a "ridiculous" / perverse conclusion.

So a ramble, in the vague hope that it may just trigger a lateral thought or two.....

Even with the "perverse conclusion" argument, I foresee a potential hurdle. Over the years I've been in benefits, I have seen all too many situations where a third party has tried to act for a clmt without the clmt's knowledge and where it has subsequently been found that the clmt had no interest in pursuing the matter.

Therefore, it is not inconceivable that DAR 3 was intended to have the effect being argued by the LA. However, I agree with your (implied) argument that the construction of DAR 3 was probably not so intended, although, it may have INADVERTENTLY succeeded in having the effect of preventing "abuse", or the RISK of abuse of the appeals procedures by 3rd parties. The usage in this post of the term "abuse" is in the same context as often used for HBR 7 cases - it does not necessarily equate to bad faith. In HBR 7 cases, Commissioners have consistently acknowledged that there will be occasions where innocent people are adversely affected.

I readily acknowledge that there is an obvious argument to distinguish between HBR 7 and DAR 3. It is now accepted that the effect(s) of HBR 7 are intended. The INTENTION of DAR 3 is much less clear....

Er, not at all sure this is of any help to you at all....

Regards

Thanks for help Kevin.

Let me sketch a bit. Claimants signed POA with the express internest of allowing the attorney (the landlord in this case, who is a charity) to pursue HB for money not paid (rent resticted by LA under old reg. 11).

It was either a choice that the claimants were evited and pursued for their rent arrears or they discharged the function of pursuing the money to the agent (landlord - chairty by the way). On this basis of signing the POA the claimants were allowed to continue occupation of the dwelling on the basis that the landlord pursued the monies owed by Housing benefit.

As you can see there is no conflict of interest here. The arangement has been set up to precent the claimant being pursued by the landlord for rent arrears (all claimants are extreemly vulnerable so this was not an option the lanlord wanted to follow).

If the regulations were to read as the barister is reading them no individual who had left their accommodation could appoint an atorney to act for them in a matter of an appeal regarding the rent restriction. This surely is not right and is most certainly a perverse was of reading reg. 3.

Any more thoughts welcome....

Sun 06-Mar-05 10:45 PM by shawn

This is an argument of statutory interpretation... However, I think that the LA are playing games with the regs... What about this as a counter argument...

Reg 3 deals with the rights of persons affected to appeal... However, that reg did not come into play until the right to appeal was to be exercised... So what was the position in law of the landlord, (having power of attorney), before any appeal rights were exercised?

The landlord was appointed under HB reg 71 (Reg 71 is entitled "who may claim". Reg 71 (2) C) makes the person with the power of attorney THE CLAIMANT !!! That reg reads... "Where a person who is liable to make payments in respect of a dwelling is unable for the time being to act, and <...> an attorney with a general power or a power to claim or as the case may be, receive benefit, has been appointed by that person under the Powers of Attorney Act 1971 <...>".

The LA has absolutely no discretion as to whether it accepts the person (body) holding the power of attorney to act as such... It must accept the power of attorney provided it is valid and legally acceptable as such... The LA can only exercise discretion as to whom might act for the claimant if Reg 71 (3) applies.. It does not apply as reg 71 (2) (c) is superior...

Therefore the right of the person (body) with appeal rights is conferred by reg 3 (1) (c) of the D&A regs which reads... "For the purposes of Schedule 7 to the Act <...>, a person is to be treated as a person affected by a relevant decision of a relevant authority where that person is <...>a person appointed by the relevant authority under regulation 71(3) of the Housing Benefit Regulations <...>(appointments for persons unable to act)"... Again that reg is not open to any discretion on behalf of the LA... and so applies in this circumstance...

I would therefore argue at TAS that the LA’s submission to the Tribunal is seeking to misdirect the Tribunal as to the issues before it, as reg 3 (1 ) (b) (iii) of the D&A regs is not actually at issue… What is at issue is that the landlord was acting under statutory authority as the benefit claimant… Therefore the whereabouts of the actual benefit claimant are irrelevant, as they have no appeal rights anyway, as they were actually unable to lawfully sign any HB claim form, as they had surrendered the right to make claims by virtue of the power of attorney itself…

However, that fact that the landlord is also the claimant, can give rise to the possibility of a ‘conflict of interest’ arising… But that is another story… In addition, it is actually impossible for a benefit claimant to move away without trace… To counter that argument at TAS I would recommend that if the LA states it has been unable to trace the claimant, you should refer them to ‘DCI’ and ask whether or not they have accessed it to actually locate the benefit claimant, (chances are they haven’t!!)…

The LA has access to a part of the DWP’s computer system called DCI… (Departmental Central Index). This lists all the benefits that are in payment, and usually the claimant’s current address… Even if they are abroad…(though it can be out of date… but chances are the LA will not even have checked DCI for current whereabouts).

However, I would try and stick clear of that argument and only roll it out if the Chair refuses to accept that reg 3 (1) (c) does not apply… But clearly reg 3 (1) (c) does apply, and even if the benefit claimant had passed away, it would not matter as the appellant is the person having power of attorney, as they were the benefit claimant… (If the actual ‘claimant’ signed the HB form, then it could get really interesting, as they had no legal right to do so, and the LA should not have accepted it (provided they were made aware of the power of attorney at the time the claim was made)!

Any O/P is therefore LA error, and no way could anyone (inc the person holding that power of attorney), realise that an O/P was occurring…

As for the argument that the person having right to appeal “IS” liable to make payments of rent… That interpretation would lead to an absurdity… What about a person claiming HB and receives the payments themselves… Then they vacate, and an O/P is created… Could the LA then say that the claimant has no right of appeal because they are no longer liable… Of course not… That is a silly argument designed to stop the Tribunal from actually examining the LA’s decision…

The only Commissioners’ Decision that I know of regarding these matters is CIS/3230/03 and is available to download from the Commissioners web site.

I think that covers it… But I will shut up now as otherwise I am in danger of rambling… (!!!)… Please can I ask though that you post and let us now what happened!!!

Have just found this one too...

R(IS) 5/03 which accepted that an appointee had rights of appeal, and which you might also find helpful if you are dealing with an O/P... (though it deals with the IS rather than HB regs, it is still useful to demonstrate a point of principle that even if appointees have appeal rights, how much more so a person holding power of attorney)!!!

That decision is also available from the Commissioners web site, but will not post link in light of what happened to the above link, (Shawn, can you shorten the above link?)...

If I've understood the position correctly, the Council are arguing that the appeal is not valid because it was made by an attorney, and an attorney is only allowed to do so while the appellant is still (at the time of the appeal) liable to make payments?

If that's their argument, it might help to refer to DAR 3(2) which says:

"(2) Paragraph (1) only applies in relation to a person referred to in paragraph (1)where the rights, duties or obligations of that person are affected by a relevant decision."

Clearly the rights duties and obligations of a person can only be affected by a decision in relation to the period covered by that decision. It seems to me therefore that this requires the status of a person for the purpose of Reg 3(1) to be assessed in relation to the period covered by the decision appealed against, and not in the literal present as at the time of the appeal.

that the right of the attorney to receive any benefit awarded, the duty to use it in discharge of the liability to make rent payments, and the obligation to ensure that the grantor of the PoA gets his full benefit entitlement, all relate to the period covered by the decision appealed against.

Hi MDR,

I'd be interested to hear how you got on today.

From a DWP procedural and legal perspective it is usually accepted that a person needing a PoA is incapable of handling their own affairs and so needs an appointee (appointed by the Secretary of State). However, the circumstances you describe indicate this is the exception rather than the rule. However, maybe you managed to find some mileage in the concept that if HB and CTB themselves permitted the PoA to effectively take over the customer's affairs completely, they can hardly 'move the goalposts' at the final stage by denying a right of appeal? Having their cake and eat it?

But more importantly the DWP procedures (rooted firmly in the Decisions and Apeals Regulations) are that the DM decides whether or not the appeal is validly made. If a positive decision cannot be made, the case is referred to the Chairman with the appropriate submission saying why the appeal is not valid. Your posting therefore indicates that the Chairman has already decided positively in the customer's favour. In my experience therefore there is no mileage now in pursuing a point that has already beed determined (unless this is a pre-hearing?).

As a personal aside, has anyone considered the tack of using the FOI to make Local Authorities account for the huge sums of money spent on barristers? Sledgehammer and nuts?

Cicero...

On the contrary, as an LA PO, I find that LA's don't spend nearly enough on legal information... In most (all?), LA's I have no access to law, other than that contained in the CPAG HB/CTB book, Bonner & Mesher is almost unheard of...

As for having access to 'law' that is a joke... Web sites like Westlaw, Butterworths, and/or Casetrack would be heaven sent... In one LA I recently work for, (and it was a unitary authority, and therefore had responsibility for Social Services and Education functions too), the legal dept. had no access to any on-line legal websites... They were looking into it...

As so many HB cases deal with contract law, (the essence of reg 6, and a substantial part of reg 7), it would be nice to have access to law... Many LA's don't even know of the DWP's DMG, and don't refer to it at all, even though the appeals section contains a lot of law that is needed for TAS... In some LA's where I work, I am actually 'banned' from the net, on cost grounds, (my agencies hourly rate, and the IT cost of setting me up), so can't even access the DMG, let alone Rightsnet...

In one case I dealt with several years ago, about £25,000 of public funds were at stake, as a lump sum, and about £10,000 a year in ongoing HB... I referred to the legal dept and they wanted a Barrister... The HB manager refused, but wanted me to progress it to TAS anyway... I lost at TAS on a matter of land law and trusts... Now that was a waste of public funds...

My goodness. I willingly stand corrected. Perhaps DWP's resources aren't quite so bad after all. :::pinching myself:::

I'd still like to see a barrister argue the validity of an appeal before a Chairman worth his/her salt who has already admitted the appeal. The expresson "I have ruled" springs to mind.

MDR... Any chance of finding out what happened???

Hi Everyone

Sorry for delay in getting back to you to let you know of the outcome.

The barrister conceded on day 3 of the hearings. He accepted that a legitimate expectation had been raised in the authority allowing the appeal and that the tribunal did not have jurisdiction to consider whether the appeal's made were invalid (due to the fact that the authority had decided these were vaild appeals).

We therefore did not have to argue the case regarding a person affected and the power of attorney issue. I am currently getting the power of attorney refined by a solicitor to make sure it is bullet proof.

I should also state that the authority once they conceeded that the appeals were vaild further conceeded on every case in regards to the rent restrictions under 'old regulation 11'.

I had researched every case on 'old reg 11' (about 60 on total), and had put together a very comprehensive submission.

Thank you once again for all your help.

Yours Kindly

MDR

I should also say that we made a freedom of information request to the authority and obtained all their internal emails and correspondence regarding their decision making process in regards to these claims.

We used some of these very potent emails as evidence in the hearing. Some of the emails stated a number of months after the decision had be made to restrict the rent, that they were unable to establish an active market and could only point to 1 or 2 other properties at the most.

The authority had sought to argue in their submission that there at least 8 other alternatives that were available at the time of decision......

When I brought out the email evidence they nearly collapsed with shock......

I am using FOI for all my appeal hearings nowadays.....

MDR