I have a case where a claim for HCTB was 'lapsed' prior to the Tribunal of Comissioners case on 09/09/04 (CH/2155/2003), where it was held that there was no power to lapse claims.

I have asked the LA to go back and now make a decision (so we can appeal) but they say they don't have to as the decision was before 09/09/04. I know we could try to argue that the lapsing was in fact a decision and we have a right of appeal - unfortunately this is no use to us as the lapsing was well over 13 months ago.

Does anyone have any ideas on a way forward?

Victor

Not sure but is there a case for a anytime review on a error in law which has no time limit.SSC&(D&A)Regs 1999, S3. The only problem may be your client contributed to the error,see R(H)1/04& R(H)2/04

The lapsing is not a decision and CH/2155/2003 established the the LA MUST MAKE A DECISION and that the former Reg 76(2) of the HB Regs is ultra vires

You can only appeal against relevant decisions and no relevant decision has been made BUT the anti test case rule in S18 of the CSPSSA 2000 refers only to (relevant) decisions, so it can not apply to a decision that has not been made. (In other words the Council is acting unlawfully if it continues to refuse to make a decision)

If the LA persist in refusing to make a decision, then I would send them a JR pre action protocol letter (send copies to your clients ward councillor and to the MP as well as to the Chief Exec and Legal Services)