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.
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