Claim made by client several months ago, LA says they never received it. At the time the client did'nt know he could have lodged an appeal - now he knows about CD's stating that LA have to prove non reciept, not the other way around, is that grounds for a late appeal....? whilst ignorance of the regulations is not acceptable, ignorance of case law is somewhat different is it not....

I would give it a go, especially if he wasn't informed that he had the right of appeal at the time or was advised that any appeal wouldn't succeed.

If the LA is of the view that he never made a claim how can they have given a decision?

Or is what happened that he shoved in a second claim form and they decided that?

If the latter then he can appeal against the decision arguing that they got the date of claim wrong.

Typically such appeals involve 2 arguments:

1. He did in fact send in the claim form. If the Tribunal accepts his evidence of sending it then it is for the local authority to prove they did not receive (slightly less good than the position you seem to state- "he must prove sending then they must prove non-receipt" is different to simply "they must prove non-receipt". This means they got the date of claim wrong.

The LA can produce evidence of their systems to attempt to show that if it had been received they would have a record of it. Reports from the Benefit Fraud Inspectorate ( www.bfi.gov.uk )can contain useful information about non linkage of documents and shoddy document management by the Local Authority which the claimant might wish to offer in evidence to suggest that it is possible it was received and then lost.

2. Even if they can prove they did not receive the claim then the claimant could still argue good cause for backdating on the basis that he was under the mistaken belief that the form he sent was received (particularly relevant here is whether it was reasonable for him not to think it strange he had not heard from them since sending the claim- of relevance to that is previous experience of delay in the HB system) and this constitutes good cause.

1. Ignorance of case-law in my view is included within ignorance of the law. Case-law is clearly part of the law- it simply says what the existing law has always said (it is declaratory) rather than beiong anything extra or outside the law.

2. A late appeal can be accepted if "it has reasonable prospects of success" in the view of a panel member at the Appeals Service- this is independent of the need for any "special reasons" for lateness. See Reg 19(5)(a) of the HB/CTB (D&A) Regs 2001 (SI 2001 No 1002). Can you not use that ground? (Using this one does mean it is advisable to explain the claimant case clearly in the appeal to show that is a clearly arguable case and not something bonkers).

Mike

Caselaw merely state what the law is rather than make new law - so that same situation applies - if the LA says that they did not receive a claim form then they could not have made a decision which gives rise to appeal rights and appeal time limits or am I missing something?

Shabir

How would a council 'prove' it did not receive a form? I am not sure any CD's exactly say that, do they?

When you say your client did not know of his right to appeal, do you exactly mean that, or is just that he was not confident of success on the basis of what he at first knew. Your post is a bit ambiguous on that point? If he really did not know, was that because he was not informed of his appeal rights? That would be a pretty good grounds for a late appeal. I am not sure what a tribunal would make of someone not exercising appeal rights within the time limits because of a lack of knowledge of caselaw.

But surely the only way to find out is to submit a late appeal with reasons and see what happens.

Should I add that I was assuming a claim does now exist. Otherwise my question is the same as Shabir's.

Andy- Proof of non receipt is done through giving evidence of the office systems in place for receiving post, recording its delivery and attaching it to the file. If these systems can be shown through such evidence to be robust then a finding that if the document had been received on balance it would have shown up in these systems can be made.

Commissioners decisions do indeed say this- numerous cases say where a claimant makes a believable statement something was sent then it is for the other side to show they were not received.

(sorry to all posters re my first post- I had it half written for ages on my machine and then came back to finish it off and post only to find about 6 other people had already made similar points to me).

The issue of who has to show what is not quite so straight forward - it happens in two distinct phases (both based on the balance of probability).

Phase 1: the onus is on the clmt to demonstrate s/he did in fact post / send a document.

Phase 2: once the clmt crosses the "phase 1" test, THEN the burden switches to the receiver (LA in this case) to show the document was not received.

Just an observation.... without a decision, there is not right of appeal. In my opinion, two requests need to be made at this time:

1) a written request asking the LA to process the original claim;

2) a claim for backdating.

If the LA won't issue a letter / decision on "1", any refusal under "2" will get you to Tribunal where the issue of earlier forms etc can be argued.

Regards

I'd go for a backdated claim too, on the grounds that the claimant reasonably believed that he had made a claim, as a safeguard against losing the other arguments.

Most authorities have something on their application form along the lines of:

'We will send you a receipt for this claim within 3 days of receiving it. If you do not recieve a receipt please contact us immediately'.

If this is the case and your client claims back-dated benefit on the grounds that he believed he had made a claim, he will probably need to explain why he did not query why he had not received any correspondence from the authority regarding his application.