This new circular can be found on the News page, and paragraph 35 refers to decisons which are'nt appealable ........?

We know that there was a Commissioners decision stating that all HB/ctb decisions were appealable - this para says there are Administrative decisions which aren't, and Relavant decisions which are? So, can someone explain the difference between the two which renders one un-appealable - or is just me having a bad day -

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The legal position
35 You will note that the guidance gives the decision maker a wide discretion. The reason for this is that the decisions given under Regulations 11-14 of the HB/CTB Decision and Appeals Regulations are made outside the normal revision/supersession rules. In essence they are 'administrative decisions' not 'relevant decisions' under the 2000 Act. This means that they are capable of being altered as and when appropriate, ie there is no time limit and there are no grounds which need to be satisfied. Moreover, and this is a key point, there is no right of appeal against the termination decision. If the customer is unhappy with what transpires under these provisions, they can seek a judicial review. You must bear this in mind when notifying the termination and any post-termination decisions.

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Decisions under Part 3 of the HB/CTB D&A Regs (Regs 11-15) are not appealable by virtue of para 5 of the Schedule to the Regs. The only exception is decisions to terminate benefit under Reg 14.

The Housing Benefit and Council Tax Benefit (Miscellaneous Amendments) (No.4) Regulations 2005 which led to the circular do not appear to amend para 5 of the Schedule so it would appear to stand.

The circular would therefore appear to be wrong in that decisions under Reg14 are appealable, but correct for the other Regs.

I had raised this with Matthew King of the DWP and am awaiting a further reply.

Mike,

Forgetting the morality of the issue, there are several HB/CTB "decisions" that are not appealable other than through JR. A couple of examples:

1) DAR 4(2) - an LA's discretion to revise a decision can only be challenged through JR. <see R(H) 8/05 - aka BELTEKIAN v Westminster CC (2004) EWCA Civ 1784>

2) Rent Officer decision - there is no right of appeal against an LA adopting a ROD.

I don't agree that there is a CD which states ALL decisions are appealable through DAR channels. Even if that was the finding by any particular Commissioner, the CA case overrides that.

Regards

There have been a number of discussions about this on HBINFO.ORG which can perhaps be summarised as follows below. (Apologies to Authors as none of the postings used are mine.) I have not yet really decided my view on this yet.

“The D&A Regs Schedule does not confer any right of appeal: that is done by para 6 of Schedule 7 to the 2000 Act.

What the D&A Regs Schedule does is to exclude from the right of appeal certain decisions that would otherwise attract such a right under Sched 7 to the Act.

The decision to terminate does not give a right of appeal because it's not a "relevant decision". And this takes precedence over the schedule in the D & A Regs as it's primary legislation.

A "relevant decision" is one that is a decision on a (new) claim or a decision that supersedes a decision on a claim or supersedes another supersession. A termination is neither a decision on a new claim or a supersession.”

I have set out below the e-mail from Matthew King of the DWP and the response to which I am awaiting a reply:

Matthew

I am not sure what you mean. I have taken a termination decision to be a decision 'on a claim for housing benefit or council tax benefit' with this being a 'relevant decision' in terms of para. 1(2)(a) of Sch. 7 of the 2000 Act and therefore conferring a right of appeal under para. 6(1)(a), unless I have missed that it is 'a prescribed decision' under para. 6(4)(a) or 'a prescribed determination' under para. 6(4)(b). However, either cannot be prescibed where 'a claim has been validly made' by virtue of para. 6(5).

Richard Thompson

-----Original Message-----
From: King Matthew WWEG Housing Costs <mailto:Matthew.King@dwp.gsi.gov.uk>
Sent: Fri 20/01/2006 15:44
To: Richard Thompson
Cc:
Subject: RE: Query with regard to HB/CTB A2/2006


Richard

You are, of course, correct to point out the apparent contradiction between the guidance and the actual wording of para 5 of the Sch to the HB D&A Regs. However, we now know that there is no power in the 2000 Child Support, Pensions and Social Security Act which allows an appeal against a termination decision. The regulation is ultra vires. We will remove it in due course.

Matthew King
HB Claims Policy
Department for Work and Pensions

Who is going to be the first to mount an HRA challenge to it?

Not sure there would be an HRA challenge. If it's not appealable it's definitely subject to JR which would probably meet HR requirements.

There have been a number of cases where a successful challenge has been mounted at the Commissioners where it was previously held that the decision is not appealable, for example:

R(CS)5/02 a challenge to a decison that the appeal was miconceived

R(IS)6/04 a challenge to the decision that a claim had not been validly made

R(H)3/05, a similar challenge to that in R(IS)6/04 but this was to an adminstrative process not to decide a claim because the claimant had allegedly not provided the required evidence

All of these challenges relied on Article 6, and in R(H)3/05 the offending HB Regulation was struck down

Stainsby -

I take your point but in R(CS)5/02 the Comm held that there was a right of appeal, and in R(H)3/05 the Regs were struck down because there was no power in the Act to make them. The HRA issues in those cases don't seem to me to have been the main reason for the decision.

R(IS)6/04 was clearly a pure HRA argument (the other arguments seem to have failed). Reading through it it does look as though an HRA challenge through the appeals system might work. I was thinking of the Alconbury case which said that JR was enough to comply with Art6, but the Commissioner in R(IS)6/04 clearly felt that wasn't necessarily the case.


Of course there may be a problem in that, if the DWP are right, the exclusion of appeal rights is in Child Support, Pensions and Social Security Act 2000, which is primary legislation and can't be struck down. All you could get would be a declaration of incompatibility, and I don't think the Commissioners have the power to make a declaration.

But doesn't the commissioner refer the point to the European Court of Human Rights and it is that court that would make a declaration of incompatability?

You can only go to the ECHR once all domestic remedies have been exhausted, so generally after going to House of Lords.

The referral process is for the European Court of Justice, the EU court.

Keith

You're quite right . I often get the two confused.

Thanks for the advice and info - the decision I had in mind was a Tribunal Commissioners - CH 2155/2003, which declared HB Reg 76(2)(b) ultra vires - the Commissioners stating in essence that a decision was a decision whatever the wording used, and therefore was appealable.

R(H)3/05 is the reported version of CH/2155/2003 so we are tinking along the same lines

..So I realised after posting it.........

Richard-

I see what you mean about the DWP email. I don't understand this either.

The point about whether anything in CSPSSA 2000 gives a power to make a regulation providing a right to appeal a determination decision seems irrelevant-

This is because, as you have correctly pointed out (I think), Para 6(3) of Sch 7 of CSPSSA 2000 gives rights of appeal against any decisions on a claim - this includes a termination decision surely? There is no regulation prescribing such decisions so as to remove this right of appeal- and as you point out no prescribing appears to be allowed under Para 6(5).

The point about whether a termination is a "relevant decision" is perhaps where they are going with it. They could argue para 1(2)(a) of Sch 7 CSPSSA 2000 only refers to decisions on initial claims. Then that para 1(2)(b) only refers to supersessions and a termination is a separate power to change an award and not a supersession (suggested in the Findlay analysis to Reg 14 of HB D&A Regs).

The argument that a termination is a relevant decision within meaning of 6(1) depends (perhaps) on showing that "relevant decision" has different meanings in 6(1) and 1(2)(a). The meaning in 6(1) is not the same as 1(2)(a) (which is restricted to decisions on claims)because it uses the words "any relevant decision" in its first bit and then goes on to refer to such decisions being made on "a claim for, or an award of hb or ctb" in 6(1)(a): it cannot therefore ONLY mean relevant decisions within the terms of 1(2)(a) (which only refers to such decisions being made on claims and not on awards).

I am a bit shocked if we end up with a no appeals against termination decisions position. It would allow completely arbitrary decisions to stop benefit etc. at any time not to be subject to anything other than JR challenge- we have had appeals involving suspension and termination where we won because the LA had not notified in accordance with the reg about the suspension and therefore termination could not take place etc etc.

woop.... in first para above for "determination" read "termination"

Martin

I completely agree with your analysis of the distinction between relevant decisions for the purposes of para 1(2) and para 6(1). This I would also argue allows for an appeal against termination.

This is, I think, supported by 6(2)(a) which excepts a termination decision relating to a work focused interview. This seems to imply that some termination decisions are appealable. Otherwise why mentioned work focused interviews at all. Why not just say “any decision terminating the amount of a person’s HB or CTB”. The legislator obviously had termination decisions in mind but, arguably, not all termination decisions.

See below where appeal attempts may resolve interpretation:

Dear Richard

Thanks for your email of 20 January 2006 to Mathew King. You query paragraph 35 of the circular A2/2006 which states that there is no right of appeal from a decision to terminate entitlement under regulation 14 HB&CTB D&A Regs 2001.

The HB & CTB (Decisions and Appeals) Regs 2001, Schedule, para 5, provides that there is no right of appeal from a decision relating to a suspension of benefit, but a decision to terminate entitlement to benefit under regulation 14 is excepted. This of course suggests that there is a right of appeal from such a decision.



However examination of the primary powers giving a right of appeal reveals that this is not the case in our view. The Child Support, Pensions and Social Security Act 2000, Schedule 7, para 6(1), provides for the right of appeal from a “relevant decision” of a relevant authority. A “relevant decision” is defined in para 1(2) as being either a decision on a claim or a superseding decision under para 4. A decision to terminate entitlement under regulation 14 is not a decision on a claim. Once a decision on a claim for benefit has been made the claim does not subsist (para 2) and no further decision on that claim is possible, but the decision on the claim is subject to revision or supersession (para 11). It is also not a supersession under para 4 but a decision given under separate powers under para 15 of Schedule 7. Therefore a decision to terminate under regulation 14 is not a “relevant decision” and so cannot be appealed. By the same reasoning it also can’t be revised under para 3 of Schedule 7.



In the absence of any right of appeal given under primary powers we do not think that the Schedule, para 5, to the Regs can confer a right of appeal. In other words if it can be taken as indicating such right of appeal this must be regarded as being ultra vires.



I hope this answers your question. Please get back to me if you have any further queries about this issue.





David Scholefield

Department for Work and Pensions

Adjudication and Constitutional Issues Division

GS 36

Quarry House

Leeds LS2 7UB

) 0113 2324701

: avid.Scholefield@dwp.gsi.gov.uk">David.Scholefield@dwp.gsi.gov.uk

Paragraph 5 of the schedule to the HB and CTB (Decisions and Appeals) Regulations 2001 says: "5. No appeal shall lie against a decision under Part III of these Regulations of a relevant authority relating to -
(a) suspension of a payment of benefit or of a reduction; or
(b) restoration following a suspension of payment of benefit or of a reduction,
except a decision that entitlement to benefit is terminated under regulation 14.

I've not seen any case law affecting this, so the law as it stands seems clear in giving a right of appeal against termination decisions.

I'm not sure where this leaves the DWP's guidance about suspension decisions. Their inclusion as 'decisions against which no appeal lies' suggests to me they would attract a right to seek a revision.