Posted by PaulStagg of No 1 Serjeants' Inn on 16-Jan-04 at 06:22 PM

NB - post copied across from old forum

The claimant's appeal from the decision of Commissioner Williams in CH/4817/2002 was heard by the Court of Appeal today.
The claimant is arguing that the Commissioner, and Potts J in R v Wyre BC ex p Lord, misinterpreted the pre-October 2000 version of reg 104(a) in ruling that it was not possible to deduct "underlying entitlement" from an HB overpayment arising as a result of a retrospective disallowance of IS. There are at least three other appeals awaiting the outcome of the Court of Appeal's decision at Tribunal level.

The court reserved judgment, which may be expected in a few weeks' time. In the meantime, advisers may wish to think about whether they have any overpayment cases where the original recoverability decision was made prior to October 2000, since if the court allows the claimant's appeal such clients may suddenly find that they ought to have been allowed to bring underlying entitlement into account. Consideration might be given, for instance, to a late appeal or to applying for an "any time" revision. Consideration will also have to be given as to avoiding the "anti test case rule" in Sch 7 para 18 of the CSPSSA.

I will post the result of the case as soon as I am allowed to do so.

The decision in this case has now been handed down - neutral citation number <2004> EWCA Civ 101.

The Court of Appeal allowed the appeal, overruling the decision in ex p Lord and holding that claimants who have overpayment decisions made against them prior to October 2000 may deduct HB for which they would qualify on their true financial circumstances from the amount of an overpayment.

As I said previously, advisers may wish to consider whether there are any old clients that could be assisted by this new ruling. It is just a shame that it has taken so long to get ex p Lord overruled in this way.

The judgement is still not on the Court Service Website, nor is it on BAILII or HBInfo.

Would anyone be able to post it to Rightsnet for publication?

It's now on hbinfo.

link to the decision on hbinfo -

http://www.hbinfo.org/usersuploads/adan.doc

Paul - you previously said that clients should consider requesting a late appeal or any time revision following the Adan case, and should consider how to avoid the anti-test case rule.
I can't see how late appeals can now be submitted as they'll all be over the maximum limit of 13 months. Nor can I see how any grounds for 'any time' revision can be made out. A subsequent decision of a commissioner/court does not count as official error for Reg 4(2)(a) HB&CTB(D&A)Regs.
Would the best route not be to request supersession of the original overpayment decision under Reg 7(2)(b) as erroneous in point of law? I don't think the anti-test case rules apply as they refer to 'a person's entitlement to benefit in respect of a period before the date of the relevant determination.' I'd query whether an overpayment decision is concerned with 'entitlement to benefit' (as the 'Adan' decision suggests the two things are different) In any event, even if it is, the only effect is to prevent payment of arrears due prior to the date of the test case. Overpayment decisions don't involve arrears of benefit for a specific period, so I just think the anti-test case rule has no application in such cases.
Or am I talking rubbish? Please tell me if I am.

Has anyone tried using Adan for old cases where the appeal rights are long since expired?
If so how did you go about it and how did you get on?