HB have refused to give me some info I have requested regarding an op appeal as they are quoting the data protection act - I was wanting a copy of the letter they had sent to the claimant regarding the op and a copy of the info from the DWP which had resulted in the HB overpayment - as these had not been included in their submission. I have never had this problem with other HB Offices. I also remember reading somewhere many years ago(a HB circular perhaps) that at appeal stage HB Offices were able to give landlords more info regarding the claimants circumstances if relevant to an appeal. I have searched for this but can't find it.

I want to write back and quote something official back at them. Any help gratefully received.

When I hear of LAs who operate in this way, I suddenly become very claimant friendly....

The LA are wrong. Simple as that. If the documents are relevant to the appeal, the LA is REQUIRED to provide them. "Natural justice" requires that and, although I can't quote the legal provision, I'm pretty sure that the DPA is overriden in legal processes such as Appeals Tribunals.

In CH/2155 & Chiltern v Warden, the cases were primarily about the extent to which there were appeal rights against being the target of recovery. However, it was made pretty clear that L/Ls are entitled to all relevant info what is necessary in order to establish that the overpayment was calculated correctly in the first instance. In my opinion, that extends to such information that enables ANY "person affected" to establish what proportion is potentially attributable to official error and, therefore, potentially irrecoverable.

If I were you, I'd contact the LA simply stating that they are wrong and, if they fail to provide info which is materially relevant to your appeal, you will ask TAS to direct them to do so.

In the event that you get a Tribunal which is "LA friendly" and fails to take on board your request (assuming you are being reasonable), I'm pretty sure that any Commissioner would take a pretty dim view of firstly the LA and then the Tribunal.

Taking your case at face value, I wish you the best of luck.

Regards

If you've requested the information in writing then reg 77(4) should be all the authority you need. This reg could hardly be written any wider and authorises the LA to give written statements for ".......the reasons for for its decision on any matter....." concerning the decision.

If requested this must surely include document copies. The DPA is overridden by this reg.

I've never had a problem with any LA after I've quoted this reg.

Apart from issues of ntaural justice, equality of arms and the right of a person affected for full reasons for the decision, you can quote the data protection act (s35) back at them since they obviously dont know what the data protection act actually says.

Here is S35:

"Disclosures required by law or made in connection with legal proceedings etc.
35. - (1) Personal data are exempt from the non-disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court.


(2) Personal data are exempt from the non-disclosure provisions where the disclosure is necessary-


(a) for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or

(b) for the purpose of obtaining legal advice,

or is otherwise necessary for the purposes of establishing, exercising or defending legal rights."

Appeal Tribunals are legal proceedings are they not?

Don't have any problem with giving the info in relation to an appeal BUT I think that there does need to be some caveats.

The information used by the decision maker and as a possibility any documents ought to be provided in relation to the appeal BUT that raises some questions for me.

If a decision maker has a document that says:

" I write to inform you that I moved out of number 6 smith street on 06/11/04 and moved to 37 John Street"

The information used to terminate the claim for Smith street was the fact he moved out on 06/11/04. I don't think that the information about the forwarding address is relevant to the decision or the appeal and therefore disclosure would be a breach.

I don't think that the right of appeal allows disclosure of everything about the customer. It allows disclosure of all the information used to make the decision.

I suspect that a judge wouldn't be happy with the LA deciding what was relevant.

The HB decision making and appeals guidance manual states:
"Evidence
-relevant to the appeal,and
available to the decision maker

should be available to the tribunal and disclosed to the appellant or representative except
-medical evidence that is potentially harmfull to the appellant, which should be available to the tribunal but not the appellant or representative"


In my copy this is at para 5300, although this could be a bit out of date.

Thanks for all your help.I wrote a long letter making all the points you raised to the LA explaining why I wanted the info I was requesting and got a letter back stating that the LA was not going to provide this as they did not feel that the info was relevant to the appeal (at least their not quoting data protection any more!)- I get the feeling that the LA believe that as a landlord we only have a right of appeal against who to recover from under Reg 101 and nothing else - we now have a date for the hearing.

Its well established that a landlord has a right of appeal against the amount and recoverability of the overpayment.

I would send an additional submision to TAS along the lines that if the Council can not or will not disclose the required information to you and the Tribunal, then they are not able to carry the burden of proof that is with them to prove the overpayment and its recoverability

If you've got a date for the appeal hearing does that mean you've received the bundle of papers? If so, the letters you wanted sight of should be included. If not, then the authority is clearly witholding evidence that should be included.