Am I barking up the wrong tree again? It is usually the case.......

Cl claimed IS as IOW in Aug 06 and informs TCO of this at the same time. He had been getting WTC. They said it will take some time to stop the payments. In fact it took til Jan 07.

His IS at the time was decided with the WTC he was receiving taken in to account.

When WTC stopped in Jan 07 he informed IS. BUT HMRC also made a decision he was overpaid and wont accept it is their fault and as he knew he was being overpaid he has to pay it back. (Incidentally, have tried to argue this with TCO to no avail - he has to pay it back).

Cl asked DWP for backdated IS as, understandably if he has to pay back the WTC he will have been underpaid IS in a sense. DWP refuse, and I can see their point - backdating rules not satisfied, I think.

We tried to ask for a revision under Reg 3(5(a)) SSCS(D&A) Regs. This is on the basis the DWP can revise a decision made where there was official error. The regulation does not say who has to have caused the official error, and in fact, Reg 1 states HMRC are a body that can commit an official error in these regulations.

First UAT adjourned to ask for DWP opinion on this. DWP have talked about supercession in their original submissions, but I'm after a revision because it goes back to the original decision.

Used commentary in Rowland and there appears to be a problem with refusals to revise and treating these as late appeals. Not clear on this point either, but tried to argue R(IB)2/04 states (para 188) that where an appeal against an original decision can still be made, a refusal by DWP to revise a decision can be appealed. Or something like that - sorry, really hazy on my reading of it. UAT was not going to entertain it.

What I'm after is appraisal of above use of Reg 3(5(a)) in this way. What is the regulation to be used for?

Many thanks.

R(IB) 2/04 _does_ provide a right of appeal against decisions refusing to revise, you are right on this.

see also CIS/1813/2007 about these working tax credit payments which HMRC can't stop when they should...

the SoS has been asked for a further submission by the sound of it. They should also cover the impact of this commissioner's decision. and you never know, may wish to revise...

Thanks for reply.

They have raised CIS/1813/2007 (which I think is a sensible decision at last) but they are saying it only applies to cases from when this decision was made (Dec 07) and although they mention it in their submission say it is of no help to the case!

As far as I can see they do not address the fact that the law seems to be saying in Reg 5 that a revision can be made where there was an error (HMRC paying erroneously - some support to this by CIS/1813/2007 but cant see why it would not apply)