ok, client was in receipt of HB but it stopped in 2005 after she received capital above £16,000. HB made a decision in 2005 that she had actual capital of £16,008 and notional capital of £20,000. Crucially she did not appeal against this decision.
She put in a fresh claim for HB in Jan 2007 and received a decision basically calculating notional capital and applying the diminishing capital rule. She appealed against this decision. Local authority are basically saying that all she has appealed against is the calculation of diminishing capital and we cannot open up the deprivation decision because she didn't appeal it way back. I need to know whether we can get the tribunal to go right back and look at the issue of deprivation or are we just stuck with a silly old diminishing capital calculation and decision? Does all this make sense I wonder.....

I'd guess not (btu am willing to be corrected.) A Tribunal can look at all issues raised by an appeal - eg if soemone is appealing against the refusal to backdate JSA but it's really about whether there was good casue for failing to sign on earlier; or stopping IS when it ought to be about incapacity for work, and can either deal with the case on the spot or direct that it be relisted in front of a duly contsituted Tribunal. But in effect what the Tribunal is doing is treating the appeal either as being against the alternative decision, or granting leave for a late apepal; and that's where I see a problem. This is because of the absolute 13 month time limit for appealing against a decision.

So my gut feeling is that, if the decision about deprivation had been within the 13 months before the appeal, and the issue was actually raised by the appeal, the Tribunal can treat the appeal as being about this as well. If it was within the 13 months before the appeal, the Tribunal can grant leave for a late apepal at the eahring. However if the deprivation is not raised within 13 months, either in the appeal itself or at the Tribunal, I think the Tribunal is barred from dealing with it because she is barred from appealing against it.

Views, anyone else?

With my non-lawyer mind, isn't the issue "res judicata"?

If I understand the "res judicata" principle correctly, the crux in this HB/CTB case is whether the two decisions relating to deprivation cover the same period. If the HB/CTB decisions cover different points in time, the latest decision is open to appeal on all the usual fronts - the previous decision is in no way binding. As it happens, nor would a Tribunal decision be binding on a new, separate, claim.

Hope this helps.

I think that I am going to try and argue that the issue of notional capital and the calculation of diminishing capital are so tightly woven in with the issue of deprivation that its impossible to treat the 2nd decision in isolation, it has to be seen in relation to the 1st decision, even though that decision wasn't appealed against. I would welcome comments on whether anyone can see any problems with this line of argument.

The difficulty with this approach is that the two decisions are entirely separate. Unless the LA inadvertently reopens appeal rights on the first decision, I don't think there is any legal basis for reopening the original decision.

There is an argument I've used in DWP cases which might apply in HB.

Under Section 17 of Social Security Act 1998 decisions are final but (subject to some exceptions which wouldn't apply here) findings of fact are not.

So your earlier decision is final and binding on that claim in the absence of any supersession/revision/appeal. However the finding of fact within the earlier decision (ie your client deprived themselves of capital) is not binding on any future adjudication.

The tribunal may follow the previous decision on deprivation but are not bound to do so. They must make their own relevant findings of fact.

I'm sorry I don't have the time to make sure that S.17 applies to HB but it might be worth looking into or there may be parallel legislation for HB.

Good luck

David

I like that one, thanks David, I check it.

Essentially I agree with David. Now obviously I have not seen either decision but I find it difficult to understand how the second decision can apply the notional capital rules without explaining the basis on which they are doing so.

In other words the decision maker must apply the appropriate regulation, i.e reg 49 which states, in this instance, "a claimant shall be treated as possessing capital of which he has deprived himself..."

Thus the issue of deprivation is at the heart of and fundamental to the application of notional capital and a claimant has a right to raise that in argument.

The concept of res judicita can often be a difficult one. It essentially means ‘that which has been adjudged’. Its purpose is to stop a party eternally litigating against the same party on the same facts in court and to lead to finality of decisions and not clogging the court’s time up with unmeritorious cases. I don’t think it has any application in this case (particularly as the first decision was not appealed). However a finding in the claimant’s favour in the second decision would not of itself open up the first decision. That would have to be appealed separately and within the appropriate time limits.

Nevip wrote (amongst other things):

"However a finding in the claimant’s favour in the second decision would not of itself open up the first decision. That would have to be appealed separately and within the appropriate time limits."

Just to clarify, that was the basis of my post. Subsequent posts mean I am now not terribly clear of the exact situation in this case.

Are there two decisions in respect of two entirely separate claims covering entirely separate periods? If so, I can see no means of reopening the first decision on the back of the second decision (exactly the same view as Nevip). The first decision will remain undisturbed even if a different conclusion is unltimately reached in respect of the second decision.

Regards

I really appreciate your thoughts on this and I'm sure you haven't got anything else to be doing! The decision which we have appealed, (in time) is dated 30/1/07 and states the notional capital figure has been reduced from £28632 to £25899. As this figure is still over the capital limit there is still no entitlement to HB.......
A decision which HB made on 9/1/06 which wasn't appealed stated that the client had actual capital of £16,008 and notional capital of £20,000.
Mmm, now I confused, the issue of deprivation has never been raised in any of the decisions but to apply the notional capital rule HB must have made a decision on deprivation. So back to the original point, why can't I look at the whole issue of deprivation in the decision which I have quoted above and which we are in time with?

Scarcab wrote:

"A decision which HB made on 9/1/06 which wasn't appealed stated that the client had actual capital of £16,008 and notional capital of £20,000.

Mmm, now I confused, the issue of deprivation has never been raised in any of the decisions but to apply the notional capital rule HB must have made a decision on deprivation. So back to the original point, why can't I look at the whole issue of deprivation in the decision which I have quoted above and which we are in time with?"

The issue of deprivation has been considered twice - once in the decision of 9/1/06 and again, separately, on 30/1/07.

The two decisions are entirely independent of each other. So, you most certainly have the right of appeal against ANY aspect of the decision of 30/1/07. The previous decision of Jan 06 is not binding in any way at all. The decision of 30/1/07 is a whole one in its own right.

Actually, if the LA (wrongly) says deprivation cannot be appealed in respect of the decision of Jan 07 (as there was no appeal for the Jan 06 decision), the LA succeed in undermining their own case considerably. Because, by definition, they appear to be saying they haven't properly considered the FACTS afresh as at Jan 07 - they have simply blindly followed an old decision.

If the LA persists in the approach of trying to stop the appeal on the issue of deprivation for the Jan 07 decision, point out that it is for the Tribunal to decide on jurisdiction; not the LA.

Hope this helps.

A tribunal does not have any power to reopen an earlier decision which was not appealed against and thirteen months have elapsed since the decision was made. The only route is to apply for an any time revision (D&A Reg 4) - but this would depend on the original decision being based on an error of law. A revised decision (whether changed or not) would give appeal rights (of course a refusal to conduct a revision could be challenged by judicial review).

Res judicata does not apply as the decision was never appealed against and a court or tribunal has never decided upon arguments made to it.

It is sometimes the case that people are damned by their past actions or inactions. In this case, if the claimant failed to appeal when they ought to have done, and based on the facts before the decision making body there was no error of law, then there may be no way to challenge the original decision now.

A possible tactic is to ask for all the evidence which was used when reaching the original decision, and see if there was an error, or possible error of law upon which to make the any time revision request; if the evidence did not clearly support the original decision then that is likely to be an error of law.

i'm puzzled as to why they now say she has more capital by a good way than she had in the first place.

I concur with Kevin's last post.

The LA have to determine each and every claim, including the calculation of income and capital, according to the regs. This means they have to start again and make new findings of actual and notional capital.

I don't think there's anything to stop the LA relying on the previous facts and reaching the same decision (assuming they remain relevant and other facts don't come to light).

All aspects of the decision, including notional and actual capital, and the deprivation decision from which the notional capital stems, can all be considered afresh and be dealt with by a tribunal.

The only way to reopen the old decision would be a revision on the grounds of official error.

a massive thankyou to everyone who responded, your points were really useful. I think its now clear in my head and it makes sense that the calculation of notional and actual capital stem from the deprivation issue so we should be able to raise it. After all how can anyone be sure that the notional capital decision is correct without first looking at the issue of deprivation?
Someone mentioned a commissioners decision dealing with just this issue, (commissioner Jacobs) Have had a bit of a search but couldn't locate anything. Does anyone know of one?

Have a look at CIS/1330/2002. This is a Commissioner Jacobs decision that holds that tribunal 2 is not bound by the facts found by tribunal 1. There is a recent case (CSG/741/2006) (written up in Journal of WB Law June 2007) that finds the opposite, but I prefer the earlier view. That means in practice that, for example, if the dprivation decision was not appealed (or was but unsuccessfully) the tribunal considering a subsequent decision is not bound to conclude that there was deprivation.

Simon Ennals