Hi

Sorry to drop this on everyone on a Friday afternoon but this is something I haven’t come across in 20 years of welfare rights. Hope you can assist.

I have an elderly lady in her 80’s who appealed a HB decision. At the last minute, just before the hearing, she withdrew the appeal – A little scared by the whole process.

Six month later, she is referred to me for help. Looking at the sequence of events, I think she had a good chance of winning her appeal. The authority has stopped Housing Benefit after 10 years because they now think the tenancy is contrived.

I have written to the HB requesting a late appeal, they in turn passed it onto TAS for a decision. My reasoning is that since the first appeal was never concluded, it should be possible to accept a late appeal.

I have had an initial reply back from TAS refusing the appeal because of the unlikely chance of success. I have written back asking for a reconsideration of this decision since I disagree. I believe the decision to stop her benefit did not follow the Supersession/review process. The Local authority issued a decision stopping benefit but failed to identify on what ground they were carrying out the Supersession on.

Couple of questions;
1. Has anybody requested a late appeal in similar circumstances?
2. Any thoughts on the Supersession / review process in cases like this?
3. If I cannot reopen the appeal, can I request an any time review since the decision made to stop her benefit seems to have missed an important stage?

(All replies gratefully received, if I don’t reply over the next two weeks it’s because I’m on holiday after today. I hope to come back to work on the 11th June to a wealth of information and help – Thanks in anticipation).

The problem with asking for a revision on official error grounds (any time revision) is that you would have no right of appeal if that is refused (an anytime revision that is refused does not extend the time for appealing against the original decision). So your only remedy there would be a judicial review of any refusal to revise.

Following Comm. Rowland's decision in CIS/1363/2005 you can appeal to the Commissioner against a refusal to admit the late appeal. Best to read the decision carefully as you will need to show the refusal of leave was in error of law which may be difficult unless the merits of the appeal were sufficiently clear from the GL24 and other docs the LQPM had to consider.

On the merits - if the LA have just decided that the tenancy is now contrived (ie superseding entitlement to bring it to an end) can't the claimant rely on fact that liability to pay rent was agreed 10 years ago and they found that not contrived. How then can anything have changed since then? It is circumstances at the time of the creation of the liability that matter rather than subsequent events. Perhaps the LA are in fact saying the liability was always contrived? In this case they need to show grounds for revision- mistake on a primary fact etc. What are the new facts of which they now aware and were not previously aware etc? I would have thought grounds such as these clearly indicate reasonable prospect of success.

Martin.

Provided that you're still within the 13 month long-stop period for an appeal (see reg 32(1) D&A Regs) I see no reason why you can't make a second appeal and ask for it to be admitted on the ground that it has reasonable prospects of success, which is all that you have to demonstrate (see reg 32(4)(a) D&A Regs). Reg 40 D&A Regs says nothing about whether a second appeal can be brought.

It might be said against you that you are caught by the decision in Rydqvist, which is available here:

http://www.bailii.org/ew/cases/EWCA/Civ/2002/947.html

However, in my view that decision does not prevent a second appeal. Mr Rydqvist's second argument was that the Tribunal had jurisdiction to ignore the withdrawal of his first appeal as a procedural irregularity. One of the grounds given for that argument was that he was still within time to make a second late appeal. However, he did not do so, and so the Tribunal was without jurisdiction as there was no appeal for it to hear (see para 27). That does not mean that had Mr Rydqvist made a second appeal that the Tribunal would not have had jurisdiction to hear it.



DISCLAIMER: This post is intended as a general comment on the subject-matter under discussion. It is not intended to be relied upon as legal advice. Any person with a similar or identical problem should consult a solicitor or lay adviser with expertise in welfare rights law.

Sorry for not acknowledging your replies to my enquiry earlier, just back from my hols in sunny Devon.

I am still waiting for a reply from the Tribunal chair to my request for him to review his decision to refuse a late appeal. I’ll let you know how I get on.

Any other views from colleagues around the country still welcome.

An interesting point made by Paul Stagg about DAR99 40.

Under DAR(2001) 19(10), an application for a late appeal which has been refused cannot be renewed. This reg applies specifically to HB/CTB.

Tragic

Court of Appeal Decision on this issue made on 8th May. (Case No C3/2006/2053) Sec of State for Works and Pensions and Morina and ANR.

Drat.

Judicial Review?

I mentioned this to the client who then turned white and refused to take the case further. That's the trouble with a Judicial Review. People are willing to be led by the hand through the Tribunal system but one mention of the courts and they're off.

One of the biggest criticisms I would make against the Court Of Appeals decision is the way in which they dismiss the point that the Commissioner made about the Tribunal system being more user friendly than the Court. My client is an 86 year old woman, never been in debt in her entire life, has no record and never set foot in a court before. To think that clients will use the Court system to solve problems isn’t very realistic, generally they just will not entertain the idea.

I realise my contribution is a little late, but might it still be worth digging to find an official error that will get your client a revision.

If you haven't got all the documents, try a data protection realease of all the client's records from the LA. The chances of finding an 'official error' somewhere are fairly high if you look hard enough. Some contributors might baulk this approach, but LA's look far too hard for evidence of wrong-doing from client's, so there's no shame whatsoever in this approach - what's good for the goose is good for the gander!

And don't forget that JR proceedings begins with a letter of claim, which will often be enough to persuade an authority to change their decision.

Don't give up

I expect I may have got this wrong, but are you saying that the L.A. NOW think the tenancy is contrived, whereas at the time of the withdrawal of the last appeal they had not yet arrived at that specific contention?. If so, then I am wondering whether that might constitute a decision?. If so is is an appealable one?.

Otherwise, I would also go for a supersession in order to atempt to resurrect the old case, as has been suggested above.


John.

Thanks for your reply, back from leave today so couldn't acknowledge it earlier. I’ve not given up yet. The authority used the wrong legislation when adjudication on the original claim (failed to use the D&A Regs).

Before my involvement, the client submitted a new claim for HB and this was also refused. I helped draft an appeal but asked that this be held over until the “late appeal request” was determined. Now that the appeal process on the first appeal has been exhausted, the second appeal is going ahead.

At the hearing I requested that the second claim be accepted as a request for an anytime review/Supersession. (See Reg 7 of the Decision and Appeal Regs 2001 and the commentary on page 923 and 924 of CPAG HB and CTB legislation 19th edition.). The reason being that the authority had used the wrong legislation (HB general regs), and hence had not shown how it had satisfied the burden of proof needed under the D&A regs etc.)

The Authority was not keen on this and the appeal was adjourned for both sides to give a written submission.

All very interesting and the above is a very short version of the submission I have writted (runs to 7 pages!).

Any comments?

As they have evidently not used the right legislation, it would be possible to argue that no valid decision has been made at all, and that their action was entirely ultra vires.

I would say that this scenario would give adequate grounds for any time review. An error of law, along the lines of the post above, is an official error for the purposes of grounds for a review.

If the review was allowed - great! You start again - whatever the outcome decision and have fresh righs of appeal. If not (ie. the LA say there's no grounds) there's no right to appeal but if the official error is blatantly obvious, a well-worded complaint followed by a letter of claim and a call to thier legal dept would probably persuade the authority otherwise.

Hi

Thought I would provide a very brief update since you were all kind enough to help out.

I attended the SSAT on the new claim for HB and persuaded the chair to accept this claim as a request for an any time supercession of the earlier claim. After a long debate in which I had to prove that the Authority had made an error in law this was accepted. I then had to establish the argument that benefit should never had been stopped etc ………

The client ended up full HB backdated to when the Authority stopped it.

Thanks for all your comments and pointers.