I really need some divine intervention on a case.

Client visited by fraud who subsequently made a decision she had been cohabitating for last ten years. During the investigation had a solicitor in tow. Decision to stop benefit because of LTAHAW wasn't appealed within the time limit. The decision that they had been an overpayment and recoverable was appealed(five figure sum and lots of noughts-and this only IS). Late appeal against LTAHAW has been turned down so I had to give her the bad news that any evidence she has on her single status over the period likely won't be admitted by the tribunal.

The male concerned has received a letter saying he won't be prosecuted. She allowed him to use her address as a postal address for all manner of things and at first sight the evidence is damning. However she has learning difficulties, trusting and easily led and I'm inclined to beleive she has been used.

I'd like to get back to contesting the LTAHAW decision.
The decision to deny late appeal is a letter from a tribunal clerk dismising the application in two lines. There is nothing to show a chair has looked at the application as seems to be required by Reg 32 D&A regs.

Has something changed to allow clerks to make decisions on late apppeals?.
Can I make a further application on the grounds a chair hasn't considered the late appeal?.

Dunno about divine intervention - God seems to be too busy winding up all 57 varieties of religious extremists to make life hell for everybody else. But in her absence, here's my two pennorth -

Obviously getting a late appeal accepted on the LTAHAW aspect wood be good, but the lack of an appeal on that isn't as bad as having had one and lost it. The tribunal that considers the overpayment and recoverability matters is going to have to investigate the LTAHAW factor pretty comprehensively to reach anything like a sensible decision on those. It cannot simply take the line "You failed to contest that you were LTAHAW and therefore you are stuck with that conclusion as an immutable fact". There'd be lots of Article 6 fun in it if they did, wouldn't there?

I'm not sure.
LTAHAW decision made 22/11/04 and IS stopped that date. Letter makes clear decision appealable but no appeal made.

Overpayment and recoverability letter 22/1/05(states "because you failed to inform the department that you were living with Mr X")and this was the decision she appealed against. Her letter was also taken as late appeal against 22/11/04 but this refused.

Been leafing through the mass of papers on the case and came across the decision to refuse late appeal and it has been signed by a chair so no go there.

LTAHAW lies at the heart of both decisions, the November decision to stop benefit and the January decision on o/p + recovering. Two decisions with different effects and I feel the LTAHAW should be there to be investigated at the appeal. However, the DWP Appeal submission is directing tribunal that they are confined to overpayment and can't look to LTAHAW. I have a gut ache feeling that the majority of chairs in our area would go with that.

If the alleged reason for the O/P is "failure to disclose the material fact that you were living with X as H&W" then that goes absolutely to the heart of the O/P decision because to ground recovery the DWP will have to have evidence (which has to be put to the client for rebuttal) that they are, in fact, LTAHAW.

Because if they are not LTAHAW then the material fact that has not been disclosed is not a material fact at all and thus there has been no failure to disclose and thus no O/P.

What if the decision was failure to disclose the fact that I have 5 grand. I say but I haven't got 5 grand, where's your evidence? They say we dont want to hear about that, we can say anything we like.

The DWP cannot narow the terms of reference that way. To do so would lead to absurdity.

Thanks to both. Like nevip I can't see why LTAHAW can't be argued. Seperate decisions, different consequences but LATHAW underlying each. Not a nice case to have in front of you on a Monday morning.

Sorry to come in sideways on this but assuming you had failed to appeal either LTAHAW or o/p decision in time and client came to you 14 months later with a bill to pay, I've wondered whether, if you can bring together a reasonable argument, you can't just apply for supersession of the o/p decision on the grounds that it was made without the relevant piece of information (your wonderful argument).

After all, IF you were right and they were not LTAHAW THEN there was no overpayment, and no information to disclose.

It strikes me that supersession is usually useless for say a DLA decision in this situation because it would only be effective from the date of application, but in this situation the effect of the o/p decision to recover has not actually been acted on and the whole lot is still live.

I've never tried this, but have considered it for a case where I've got a piece of information that only existed after an appeal and so can't be used in the appeal to the Commissioner which looks like failing.

Any thoughts?

Andrew

I think you are talking about an anytime review rather than a supersession. It strikes me that you wouldnt be able to argue that a reps argument was a new relavent fact unless it contained new factual information that was not previously cosidered. Nice idea though!

Unless of course the reps argument showed that there had been an official error..!

Andrew

My colleague has used this ploy successfully before. In fact, I'm a bit surprised to discover that its apparently a bit controversial. While it's true that a supersession cannot ground any arrears of benefit, there is nothing to stop it being used to change an old overpayment decision to the claimant's advantage, because that does not lead to the payment now of arrears of benefit.

Not only that, but I think any refusal to supersede would give rise to a brand new window to appeal that refusal, too...

Thanks Gerry, I couldn't see why it wouldn't work.

also dunno about divine intervention...
but 10 year L/T decision by fraud investigators is worrying. they are not supposed to give decisions, but giving instructions for decisions is the same thing- and against departmental policy with good reason. fraud investigators don't carry out the L/T interview normally...

i'm surprised that the late appeal hasn't been admitted - locally the tribunals are pretty good about accepting appeals when there is such a great deal at stake, and the decision involves a complex judgement like L/T. i have known chairman change the decision when representations have been made, so it might be worthwhile making sure that all the issues are known to the chairman.

but i agree that the DWP can't curtail the tribunal in the way described - the revised decision is central to the overpayment decision, and the DWP has to show grounds for revision, and discharge the burden of proof on its 'outcome' decision, to use the jargon. yuk!

jj

I am not sure when the decision to refuse the late appeal was made but it is possible to aske the chairman to "reconsider" (I hate that word) their decision not to allow a late appeal. If necessary, you can phrase the request in the form of a letter before JR but this is obviously subject to the very restrictive JR time limits. It is true that there is no right of appeal against a refusal to allow a late appeal, but often when it is considered by a chairman there is little or not supporting evidence/argument for the lateness. I have had them change their minds on several (well a few) occassions.

Further thought:

The first decision was to stop benefit from that day forward. The new tribunal is considering the position at an entirely different time. To do so, they surely *have* to look at evidence about the domestic arrangements over that period.

Aah! Now theres the crunch because when you read the appeal papers theres a lot of evidence against her that suggests LTAHAW. However this in the main is based on contradictions between her evidence and his on IUC. Unfortunately, theres no copies of transcriptions of interviews and she states when she asked for IUC tape copies was told couldn't have them. Missives already in the post to the Fraud section. What appears in papers is only the decision makers reasons that LTAHAW has existed.

At first sight there is a lot of evidence against her but certain things make me livid. She will likely face a prosecutin at some point but he will go scott free(Hes already had a letter saying he wont be prosecuted.) The reasons for decision highlight contradictions but wholly adopt that evidence which is most damning to her and where she has made assertions regarding her innocence these in the main have been ignored.

I recently represented a client at a DLA appeal after he had been prosecuted for working while claiming IB, to which he had pleaded guilty. Evidence obtained from him in the IUC was used to remove entitlemment to DLA, and the full transcript of 3 interviews was included in the appeal submission. The reason your client's tape is not available at the moment is that the copy tape will be supplied to your claimant's solicitor should prosecution take place. In the case I dealt with, we obtained the tapes from the solicitor after the prosecution. They made interesting listening; to my surprise the transcript was correct in every detail, right down to evevry pause, "er" and "um".