The Tribunal of Commissioners has issued its decision in CH/2155/2003 and joined cases, concerning the question of whether a local authority may refuse to issue a decision on a claim where it feels that a claimant has provided insufficient information and whether any such refusal attracts rights of appeal.

In short, the Commissioners hold that reg 76(2) of the HB Regs is ultra vires, since there is no power to authorise regulations which give a local authority the power to refuse to issue a decision on a claim. Any such purported decision is to be construed as a decision refusing housing benefit and will accordingly attract rights of appeal, revision and supersession.

This is an excellent decision for claimants and all advisers should obtain copies when it is made available on the Commissioners' website. It is an epic (31 pages and 121 paragraphs) so I can't really fax it to people in the meantime but I'd be happy to send a copy to LASA for them to scan and put on the site.

No news yet on whether any of the local authorities or the Secretary of State intend to appeal to the Court of Appeal.

hi paul

that would be great

our fax no is 0207 247 9924

cheers - shawn

Paul

sorry to ask what is possibly an obvious question, but if this decision is not subjected to an appeal when do you consider that it would be applicable from - from the date of this decision, or back to the date of the original appeal - my Benefits people are going to ask me the question sometime in the very near future.

If it is retrospective, the other question that arises is what do an LA do with regard to claims which they have allowed to lapse and have informed the claimant accordingly, as we will have done, in the intervening period: would they have to try a trawl to find such cases for example?

In English law, a judicial decision (except in certain limited cases involving European Union law) is treated as declaring the law as it always has been. So under the Commissioners' decision, reg 76(2) is and always has been ultra vires, and any decision not to make a decision on a claim is to be treated as a decision to refuse benefit.

It follows that where the decision to refuse benefit was taken prior to the Tribunal of Commissioners' decision, rights of appeal do arise against such decisions.

It is a moot point as to whether a local authority would be obliged to trawl for old cases. I would incline to the view that it would not be regarded as maladministration for a local authority not to do so, given the large volumes of cases likely to be affected. However, they should be prepared to take action if representations are made by claimants or those acting on their behalf. And the courts are unlikely to be sympathetic to extending the judicial review time limit if a claimant has not taken any further action to force a decision on a claim for some considerable time.

No doubt there will be further case law developments dealing with such matters as when the deemed decision to refuse is to be taken to have been made for the purposes of time limits for an appeal.


DISCLAIMER: This post is intended to be a general contribution to the subject-matter under discussion. It is not intended to be relied upon as legal advice. Any person with an identical or similar case should seek advice from a solicitor or lay adviser with experience in welfare rights law.

thanks to the cmmrs office for letting us have a copy in advance of it being published to their site .... CH/2155/2003 (and joined cases CH/3423/2003, CH/3511/2003, and CH/3600/2003) can now be downloaded @

http://www.rightsnet.org.uk/pdfs/CH_2155_2003.doc

(thanks also to paul stagg for faxing a copy of the decision)

Well done Paul Stagg

Given the problems we have had with this very issue (Withdrawing Claims with no appeal rights) over the past two years this decision is excellent.

Further info on problems here

http://www.welfarerights.net/meeting.doc

This is brilliant for those of us who advise tenants.

The closing down of claims for "failure" to provide information has always seemed perverse and unjust to me. My aproach has always been to treat this is an appealable decision, despite what Reg 76(2) says. To be fair, submitting a appeal on this subject has tended to trigger a reconsideration by our local housing benefit team, and the outcome can be the reinstatement of the claim after reasonable dialogue.

My only worry will be that Local Authority staff are not made fully aware of this. I hope that new procedures are already out there and staff don't quote the old regs.

Does anyone have any ideas as to what effect this decision has on CTB Regulation 66, the similar provision to 'not make a decision' on CTB claims? Is this ultra vires now also, or will this now also have to be tested via the Commissioners. If, as appears likely, it is not (yet) ultra vires, can the Benefits Office 'lapse' the CTB side of a joint HB /CTB claim at the same time as making a decsion to refuse the HB side.

No doubt good practice would be refuse both sides of the claim together and give a right of appeal, but not all LA Benefit Offices adopt good practice .... so I have heard

Victor

Victor,

The point at issue here is that local authority's can no longer 'refuse' claims... they must make a decision on them. The Commissioner's have decided that there is no power in the primary legislation to refuse a claim... whilst a local authority can draw "adverse inference" from the non-supply of information, a decision must still be made... so the decision will be that for instance "you are entitled to Housing Benefit at the sum of zero pence per week" etc. This decision has far and wide ranging implications, most of which have not yet been understood by local authorities, let alone anyone else...

As for the CTB point, it is an interesting one... and one I was discussing only yesterday. Whilst the Commissioner's do not seem to have considered the legislative provisions of the CTB scheme, (the CTB scheme is made under seperate, though almost identical provisions in the SSAA '92 and SSCBA '92), this decision is in any event highly persuasive... and I can find no 'reasonable' way of continuing to refuse a CTB claim, in light of this decision so the same rules will apply to CTB, as HB and claims must be decided by a local authority...

I'm trying to get my head 'round what this means in practice about cases which have alreadyu been "closed".

Does it mean that these cases have in fact never been resolved and that we should ask for a decision to be made (which presumably means that the anti-test-case rule clicks in)?

or

can we treat the "decision" to refuse to make a decision as a decison that was never properly communicated to the claimant and so open for challenge even if more than 12 months ago (cf CP-4479-00)?

I think it depends on how the case was closed. If the "decision" was simply to refuse to make a decision, then as Reg 76(2) is ultra vires, then you can now demand that a decison is made with full appeal rights.

I dont think the anti test case rule would apply in such a case because no relevant decison was made in the first place.

If the decision was to refuse entitlement in the way that the Commissioners decided was the correct procedure, then if the notice did not fully comply with Sch 6, then yes, following CP4479/2000, the decison is open to challenge.

You may find a more recent HB decision CH1125/2004 useful, it follows broadly the same lines as CP4479/2000, but is far less tortuous

Hi

Do you have a copy of CH/1125/04?

Can't find it on HBinfo, Rightsnet or the commissioners' site.

Anything that will save having to ask the poor benighted decision maker to wade through CP/4479/00 and it’s labyrinthine appendices would be appreciated.

Mike Robinson
Fax : (01642) 612666
e-mail : welben@stocktoncab.cabnet.org.uk

I have emailed it to you, sorry about the earlier typo, the ref is CH1129/2004

plus ... there's a summary of CH/1129/2004 in briefcase

Thanks for that ... only I'm not convinced about that arguing no decision has been made will avoid the anti test case rules since it would appear to bite as soon as the authority make a decision on the claim:

sch 7 para 18(1)(b)(i) of CS,P&SSA2000 includes decisions by the authority in relation to claims.

That this applies to claims made before the relevant determination is made clear by sub para (5)i.e.:
"(5) It is immaterial for the purposes of sub-paragraph (1)-

(a) where such a decision as is mentioned in paragraph (b)(i)
falls to be made, whether the claim was made before or after the
date of the relevant determination;"

If claimants are going to be able to make use of this decision retrosepctively they will need to appeal some form of decision or undertake a fairly dubious JR case.

Notwithstanding sch 7 etc, I do not see a problem for claimants making use of this decision retrospectively - "they will need to appeal some form of decision" - the form of decision is the original refusal to make a decision. The claimant could not have lodged an appeal at the time, because he/she was not made aware that the LA action was appealable.

As I read it, the decision is saying that an LA does not have that power to merely refuse to make a decision on a HB claim - therefore any letter sent to a claimant stating that is to be treated as a Decision. If a particular LA does not include in the letter any reference to Appeal rights then, following the Trib of Comm decision, a claimant can take appropriate action.

Where however an LA interpreted the regs slightly differently and does include details of Appeal rights in notifications to the claimant in such cases - as for instance we do - then the normal rules would apply, even if the wording of the notification letter also uses words such as suspended, or closed etc.

.......or is this too simplistic a view?

Para 18 of Sch 7 CPSSSA(the anti teat cae rule) refers to "decisions."

A decision in this context means a relvant decision as defined in para 1(2) .

Reg 76(2) of the HB regs before it was declared ultra vires gave permission to LA's to decline to make a decision, and so if an LA did decline to make a decision, then as Paul Stagg points out they must now do so if pressed.

On the other hand if the LA has made a decison on the claim and that decision is nil entitlement, the notification must be fully Sch 6 compliant, otherwise it will have no effect, and appeal rights can still be re-opened

This decision is not the panacea people seem to think

1 Where the requirements specified in the claim form are not met the claim can still be declared defective. A defective claim is not a claim as required by S 1(1) of the Administration Act

2 The Local Authorities are now obliged to decide the claim rather than declare it defective because of missing info or verification, but this will result in either a nil benefit award,or if an award is made,based on the incomplete information received after 28 days of the request, Local Authorities will be able to immediately suspend payments under Reg 13(1) of the Decisions and Appeals regulations, because:

a) The claimant has failed to comply with the information requirement,and

b) The Authority is considering a revision based on the full information when received.

Failure to comply with the time limit in Reg 13(4) will then allow termination from the date of suspension.

People can appeal against the termination decision. Personally I think it very poor that all these exclusions from right of appeal have been prescribed. I think the HRA will soon put a stop to all that anyway. All LA decisions can be incorrect, and therefore all LA decisions should be appealable.

Disclaimer:-

Any advice or opinion I have given is as a private individual and not in the capacity of my professional duties for my employers.

I do not agree that a Council can make an award and then immediately suspend, because doing so is inherantly self contadictory. Suspending benefit requires that a previous decision to award that benefit has been made previously and so you can not first of all award the benefit on the basis of the evidence you have, and at the same time purport to say that a question has arisen as to that award, on the basis of the very same evidence that the decison maker must have accepted.

A Council can either accept the claimants uncorroborated evidence or make a nil entitlement decision and give the right of appeal

If an LA makes an award and then suspends it then that's two decisions that become appealable - but as said it doesn't appear to be very logical in the first place - you can't make an award and then suspend it on the basis of the same evidence! The words Monty & Python come to mind for some obscure reason..................

I agree with Stainsby and Mike S. The crux is the evidence. Either the evidence is sufficient, or it is not.

The only distinction would be for Payments On Account, but then that only affects PT cases.

Regards

Just received a decision of Commissioner May CSIS/635/03 (reminder: Scottish decisions are no less binding than English decisions). Mr May decides that purported revision and supersession decisions governing an overpayment are null, void and of no effect. He also finds that it was not open to him to correct the decisions, despite submissions by Counsel for the DWP that he should substitute his own supersession decision on the basis of the facts (which were transparently clear and agreed). I'm sending a copy to Shaun, hoping that he will be kind enough to publish it on this site.

The technical argument is alive and well.

Sorry folks, posted this message on the wrong thread. I've started a fresh thread at:

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=106&topic_id=540&mesg_id=540&page=

I would admit to having made an error on Reg13 suspension as the primary legislation restricts this to folllow failure to meet a time limit in relation to a review of the case and not a new claim.

However a suspension under Regulation 11 is possible, as this only requires that the local authority is considering revising the decision. In these cases, having awarded benefit on imperfect information a Local Authority could quite legitimately look to revise the decision on receipt of the complete information. It would be in no way ilogical to award benefit, and to suspend imediately at the same time asking for full information to enable a revision. Termination could follow on after 28 days plus two calendar months. If the information or verification was not forthcoming.

Suspension would only be in those rarer occasions where the authority has no choice but to award benefit. In most cases, where there is any deficiency in information relating to identity, nationality, NINOs, Capital holdings, rent liability, or occupancy, the Local Authority would find the claimant to be inelligible. Where income details are missing, the Authority would usually make a nil award, . It is only where information missing could not be seen as non-entitlement, or a nil award, that an award would have to be made, even though the Authority might be doubtfull about the level of entitlement. That is where suspension could be used.

"Suspension would only be in those rarer occasions where the authority has no choice but to award benefit. In most cases, where there is any deficiency in information relating to identity, nationality, NINOs, Capital holdings, rent liability, or occupancy, the Local Authority would find the claimant to be inelligible. Where income details are missing, the Authority would usually make a nil award, . It is only where information missing could not be seen as non-entitlement, or a nil award, that an award would have to be made, even though the Authority might be doubtfull about the level of entitlement. That is where suspension could be used."

I still maintain that the above is self contadictory, if the LA has no choice but to award benefit, the LA must decide that entitlement has been proved on the information that it already has.

The burden of proving grounds for revision or suspension rests on the LA. If a question has arisen as to whether or not there are grounds,( the conditions for suspension) it could not possibly have arisen when the decision to award benefit was made (otherwise it could not have been awarded), so how can the same question have arisen since the decison was made if all the material facts remain the same?

Decision makers can only revise or supersede on the ground of a mistake as to or ignorance of a material factif it can be shown that there is evdence that the primary facts are different to those pertaining at the time of the decision. Alleged ignorances or mistakes as to secondary facts are not grounds for revision or supersession. In my exoperience a lot of decision makers do not know the difference between primary and secondary facts, and inexperienced HB assessors repeatedly ask for further evidence because of this.

The distinction between primary and secondary facts was made clear by the Commissioner in R(S)4/86 paras 4-5

"Now, if there is a mistake as is a primary fact, then the possibility of review presents itself. However, if there is no such error, but the mistake relates to how the issue for ultimate determination, on which the relevant award depends, has on the basis of the primary facts in the event been decided, then there is no error as to some material fact within the section. As was said in paragraph 9 of decision R(I) 3/75:-
"......a claim for sickness benefit necessarily raises the question whether the claimant was incapable of work; and a claim for widow's benefit may raise the question whether the widow was cohabitating with a man as his wife. In all such cases the duty of the determining authority is to consider the evidence and reach a conclusion. That conclusion is an inference of fact-that the claimant was or was not incapable of work; that she was or was not cohabiting with a man as his wife.

Sorry Milesco, I'm with Stainsby on this...

Even if you choose not to accept what Stainsby has stated, the decision to decide entitlement, and then look to suspend, can not be 'reasonable', if you have enough information to make a decision, and that decision does not give rise to a 'nil entitlement', you must release payment... to suspend, for whatever reason, is (in my opinion), a breach of the principles of 'Wednesbury reasonableness'.

If LA's consider that they do not have sufficient information to decide HB, they should draw 'adverse inference' as per the Commissioners decision, and 'nil' the claim.

Any advisors out there who have clients where entitlement has been decided and immediately suspended, (for whatever reason), should be raising this as an issue and challenging the actions of the LA concerned...

i agree. worse, making an award which you have no intention of implementing, and immediately suspending it could be taken for an abuse of power, as well as unreasonable. sorry.

jj

The DWP have now issued a more detailed urgent bulletin on this subject.
It advises that there are two different circumstances.

1) Where an LA receives a valid claim, but then asks for evidence that was not initially requested on a claim form.
2) Where a claim is “defective” either because the claim was not properly completed or evidence requested on the claim form was not supplied and the LA then requests that evidence or that the form be properly completed.

In both cases the LA must make a decision even if the claimant makes no move to supply the additional evidence or remedy the defective claim.

In case 1 there is no dispute that the decision carries a right of appeal, it clearly does.

Case 2 was apparently not specifically considered by the TOC and currently the regs give no right of appeal. However, in the light of R(IS)6/04 DWP intend to change the regs and their view is any appeal received should no longer be submitted to the Appeals Service as “out of jurisdiction”.

Mon 08-Nov-04 03:07 PM by ken

The rightsnet news story Requirement to give a decision on effective and defective claims outlines and provides a link to HB/CTB urgent bulletin U9/2004 jmembery refers to.

Any comments on whether the decision changes rights of appeal when a council terminates a claim following failure to reply to a request for information during the course of a claim, when benefit has been legitimately suspended pending a reply?

Unless I've missed something, I don't think there is any doubt.

In suspend / then term cases, there is a right of appeal. Hmmm.... that's got me thinking now...

Regards