delaying tactics!
the serious issue raised by jill has been diverted or obscured by jmembury's 'consistency' argument and kevin's 'tactical appeal' red-herring. tut tut!
no doubt the Ombudsman will be pleased to hear that their view has merits. is delaying recovery until the dispute is resolved by an independent tribunal, really as difficult to justify as suggested here?
what is disputed may be (a) that any overpayment occurred. (b) that the overpayment is recoverable. (c) that the amount of the overpayment is the amount stated.
if the LA adopts a position of premature recoverification, it is in effect saying 'you have a right of appeal, but it means diddly squat to us' or 'fie! fie! a pox upon your rights.' ... okay, they would be more likely to express themselves in an LA-type form of words, and i'm pretty sure they would omit the theatrical use of the chew baccy and tin spitoon, but actions speak louder than words, and it's actions one is judged by, and IT'S THE LA's ACTIONS which are being questioned by welfare rights advisers here. how did we arrive at bad claimants again? it's wearing thinner and thinner, check the stats.
the merits and justification for public bodies to be seen respecting both the law and the public whom they were originally created to serve, is a worthwhile subject for debate, imo, and one which could lead us to very interesting places, i have no doubt...
if it is now justifiable for LA's to commence recovery of sums on their say so, which may not be owed, and to which they may have no right, using powers of 'recovery' given to it as a public body which exceed common law provisions, in the knowledge that the debt is disputed and not established, <gulp!> what conclusions could be logically and fairly drawn by the public at large? (i was going to say by the man on the clapham omnibus, but that is in too bad taste, even for me!)
does anyone think that the inequality in arms might be noticed, giving rise to questions such as 'have public services changed into something other than their original function, and do we want to carry on paying for them?' or 'what does rule of law mean, exactly?' or 'does anyone know where i can buy a pike?'
with respect to jmembury, imo justification on the grounds of consistency is utterly misleading. benefit entitlement decisions are implemented when they are made, and reversed, if varied on appeal.
although entitlement is a part of an overpayment decision, the outcome decision is that the claimant pays money TO the authority. entitlement decisions govern payments flowing FROM the authority TO the claimant. This is a MAJOR difference.
The inclination of bureaucracies to seek consistency may be inherent in the nature of bureaucracies - understandable, and effective much of the time, but a flaw or a folly, if it seeks to impose a model of reality upon reality itself. akin to Cnut requiring obedience from the sea, consistent with that of his subjects, i would say.
the burden of proof for overpayments is rightly on the authority. I would rather see authorities being less blase about overpayment decisions, and more recognition that when they demand payments from people on means-tested benefits it is arguable that they owe a moral obligation to ensure they have got the decision right, as well as a legal obligation. but if that is too much to expect, that they at least respect their legal obligations. the claimant has a right of appeal against overpayment decisions, and it is reasonable to expect the exercise of that legal right to be respected by the other party.
there is no statutory provision requiring delay in recovery during the dispute period, but the Ombudsman has interpreted the law's silence as a pre-supposition that the LA's will act reasonably. If LA's interpret the law's silence as giving them the power to recover, and the Ombudsman's guidance as inconsistent or irrelevant or plain wrong, perhaps that says something rather unpalateable about LAs?
kevin's points, while claiming to deal with Damian's post, introduce a 'problem' of 'tactical appeals', which i have never heard being raised before and am unaware of, and he asks for views. : ) maybe it's a problem talked about by local authorities, behind closed doors. now given a public outing, kevin won't be surprised if the view from the peanut gallery result in cries of 'you know the rules, show us your evidence!!'. he's already had paul's legitimate 'so what!', which is pretty much how I expect my LA would (less legitimately)respond to accusations of delaying tactics plus grinding people down (evidence is in my drawers, btw : ))
which reminds me...
: )
jj
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