Forgive the weary exasperated disbelieving tone of this lengthy posting its one of those Grrrrrr cases. Also its really disappointingly because it reflects badly on an appeals team who are alright and have shown themselves to be humane decent individuals.

Scenario - Clients IS entitlement suspended June 2007 due to JCP appeals section believing he had notional capital and issues relating to overpayments of IS housing costs (he had owned a part share in a house, signed it over to his mum and sister (2003) who owned the other shares in house, because he couldn't pay his share of the mortgage, continued living there, until 2006, when mum and sister sold it). He had it appears not notified JCP of the change in 2003, so IS housing costs were being paid to mortgage company, until sale of house in 2006, when lender explained he wasn't on the mortgage.

Anyway, Oct 2007 JCP shut IS claim, we help client appeal Oct 2007 entitlement decision, fortunately, as it turned out this was a late appeal 4 -5 months after decision, so JCP appeals team referred it for LQPM to determine whether appeal time be extended, which they did.

Anyway JCP appeals team sit on case, eventually after TS (and us) hasslingly them to produce a submission/written response, they um and errrrrrr, and advise TS in the last week or so they have made a favourable decision so appeal revised blah blah. So TS shut case for obvious reasons.

We the reps and as far as we can tell client never receive this favourable decision?

We ring the appeals section, to be told the following (heavy sanitised version because i don't want to include subjective comments made to me by the appeals individual concerned about the case), that a decision was made last Nov 2008 (he advised we don't send copies of decisions to reps, Mmmm we're a party to the proceedings ??????? whatever anyone out there in welf land or beyond is thinking don't even bother stating the obvious).

Decision or decisions? we were advised related to notional capital, Appeals team member advised that they had written to Leeds (DWP legal team), who told them that they had no case for notional capital etc etc, hence they revised appeal.

Reminded appeals team member the decision under appeal was a over entitlement to IS i.e. had they or were they in the process of reinstating IS from June 2007 and paying arrears. Response was no! he gets IS from October 2008 (client made a new claim last october 2008).

Explained to the appeals team member that i was struggling with the idea, that this was an appeal concerning entitlement i.e. receipt of IS, that had been revised 'favourably' in client's favour but his IS was not going to be in reinstated from June 2007 until the new claim in Oct 2008. He explained well! he hadn't given us the information we wanted???????? I asked surely it was the information JCP wanted, that we helped him provide was why the appeals team sought advice from Leeds and errrrrr revised their decision in the clients favour????? Response......................

Anyway, we're going to do the obvious write to the TS ask them to reinstate appeal and request a judge issues an interlocutory directions asking the appeals team to issue a sub/written response asap.

Has anyone got a further advice, ideas or observations. I'd be really grateful for any input.

Grrrrrrrrrrrrrrrrrrrrrrr him from the sticks

Based on what you have stated, it seems your approach is absolutely correct - i.e. the request to get appeal reinstated etc. Just for value, if not substance, formal complaints to the DWP / MP etc may be worth considering.

I suspect all these bases are covered but, presumably, the request to reinstate the appeal will refer to the lack of any notice of any decision purportedly made by the DWP along with reference to the later unlawful change to entitlement. If so, I'm not sure what else will add anything to your position at this time.

Forgot to mention...

The DWP may well try and argue that the change to the original decision results in the appeal being lapsed.

If the DWP are SUPERSEDING the original decision (as appears to be the case), that is, by definition, not a REVISION. An appeal can only lapse upon REVISION - supersession is not enough (CH/2091/2005 - para 19).

Thanks Kevin for your responses, funnily enough they (JCP appeals team member) told me that they had superseded the decision, and in my disbelief at his stance and apparent subjectivity and frustration with how this case has been whatevered, i overlooked that very obvious point, that should have rattling around my weary brain.

Andy

thanks to kevin .. here's CH/2091/2005 ...

http://www.rightsnet.org.uk/pdfs/CH_2091_2005.doc

Thanks to the both of you.

Got a copy of the 'favourable decision' now.

In brief they state (just to reiterate the specific appeal relates to entitlement decision made 10/10/2008).

"capital decision is superseded (favourably, i.e. no notional capital) and an (new) entitlement decision was made (20/11/2008)".

"As client had not provided the information requested regarding change of property ownership, capital interest etc then as client failed to prove, on the balance of probabilities that they met the conditions of entitlement claim was disallowed".

"New entitlement decision issued 20/11/2008 which would carry right of appeal regarding 26/06/2007 - 03/10/2008".


"All current appeals have lapsed as claim has been accepted from 04/10/2008 (i should point out this relates to a separate claim he made Oct 2008) and Income Support reinstated and overpayment lapsed".

"client has right of appeals against decision (20/11/2008) not to award arrears of benefit due to failure to comply with request for information".

"entitlement decision to close claim ('that was favourable') was made using regulation 18 D& A regs 1999, they also cite regs 16 and 17" which obviously relates to suspensations and terminations of benefit.

A i missing something here? as i understand it, they have looked at the Oct 2007 entitlement decision (i.e. IS shut because it was perceived he had notional capital over £16000), it is then decided he does not have notional capital, but IS is still not reinstated, i'm struggling to see the logic let alone how that is favourable.

I would be really grateful for peoples observations on this.

Andy

No real analysis needed. The DWP is wrong. The original appeal should be reinstated - all documentation should be sent to TTS to demonstrate the numptiness of the DWP.

Thanks Kevin, thats what i wanted to hear.

Appeal reinstated by District Judge etc etc etc etc, thanks for all the help and moral support Kevin.

Well, that's round 1. Next stage: wonder if the DWP will just ignore the directions and/or any subsequent decision made by the Tribunal....

That crossed my mind too, for sanity's sake i've gone in to tunnel vision mode for the time being, but MP is sort of involved, so if necessary will ask them to fire off letters to District manager with suggestion that he (district manager) request legal advice from Leeds ACI on any would be stance from appeals section (if only to telegraph and flag up the very eccentric and unreasonable (oh and unlawful) stance of the DM involved ). I hope the appeals section see sense and just quickly wrap this up, talk about a whole new area of maladminstration.

We've received the appeal papers on the two IS entitlement appeals to be heard together and the DWP case is that reg 5 SS(PAOR) REGS 1988 allows the DM to offset overpayments of IS against unpaid arrears of IS for March 2004 - June 07 to March 2004 - October 2008, resulting in an overpayment, R (DLA) 2/07 suggests they have a case.

Subsequent decisions concerning entitlement to IS for housing costs (mortgage interest) and overpayments are confused they cover July 2004 - Nov 2005. O/P decision appealed, revised in clients favour as unrecoverable. Certainly overpayments against unpaid arrears for that period, would result in a underpayment.

However, IS entitlement appeals (DWP arguments infer housing costs overpaid from Dec 2003 - June 2006 leading to an overpayment (appeal papers reveal info from Mortgage company that DWP knew in Jan 2006, client was no longer on Mortgage, but carried on making payments until June 2006).

Questions

1, any mileage arguing for offsetting IS O/P July 2004 - Nov 2005 against IS unpaid arrears June 2006 - Oct 2008.

2, Anyone got any sensible suggestions or advice Please. I keep going down a cul de sac with R (DLA) 2/07 at the end.