A LA is refusing to send an appeal to TAS as they 'feel' the appeal has been superseded by an advantageous decision.

The alleged advantageous decision doesn't contain anything from Schedule 6 and, I beleive, therefore its not a decision let alone a valid decision.

The LA are insistent that the 'claim' has now been lapsed under reg 73.

This has been going on for months now.

I sent the docs to TAS for a legally qualified person to look at the case and decide if the appeal is still active.

TAS returned the paperwork stating its nothing to do with them.

Any idea's who resolves this sort of situation?

I'm a bit confused.... on the one hand your post says the LA feel they have mad a more advantageous decision; on the other hand the LA have lapsed the claim. Is it possible to have more info about the circs?

In the meantime, if the LA have indeed mad a more advantageous decision, then there should be completely new appeal rights. If the LA have lapsed the claim under HBR 73, it gets more awkward; but my suggestion would be to appeal against the "lapsing" "decision". If the LA say there is no right of appeal in "lapsed cases, appeal anyway and argue there is a right of appeal on Human Rights grounds. CIS/540 is useful to quote, but strictly speaking it doesn't cover HB/CTB (but cases are currently before Commissioners on this issue). The LA MUST refer ALL appeals to TAS (except advantageous reconsiderations) - even if the LA say there is no right of appeal. It is for TAS to decide if there is such a right; NOT the LA.

If the LA refuse to refer to TAS, make a formal complaint and follow it through to the Ombudsman if necessary. Make it clear to the LA from the outset that if they fail to comply with the law, they will be held liable for any losses / damages etc.

Erm, right. That's it for now.....

Regards

AT THE END OF THE DAY DEPENDING ON THE CIRCS YOU MAY NEED TO PURSUE TO LOCAL AUTHORITY OMBUDSMAN OR YOU MAY ULTIMATELY NEED TO PURSUE A JUDIACAL REVIEW TO CLEAR THE STALEMATE.
i HAD A SIMILIAR PROBLEM WITH DWP AND THE JR CLEARED THE BLOCKAGE, UNFORTUNATELY NOT THE CAUSE. bUT SINCE THEN WITH HAVE NOT NEEDED SUCH HEAVY MEDICATION TO CLEAR THE OCCASSIONAL BLOCKAGES WE ENCOUNTER.

Thanks for the response.

The revision 'decision' letter refers to a delay in the claim and asks for more info after explaining that the Land Registry had confirmed the claimant was no longer an owner of the property. The claim was refused originally on regs 2 (1) and 10 (2) (c) HB regs 1987.

Revision was upheld on 14th April 2004.

An appeal was submitted on 7th May 2004.

The decision is alleged to have been revised in a letter dated 25th May 2004.

The letter says that "As you know your claim has been delayed due to HM Land Registry. Having established that you are no longer the owner we are obliged to check your entitlement.

Please answer the following questions required under reg 73 HB regs 1987. You have four weeks to provide info.

The questions relate to commercial tenancy & capital.

The customer didn't respond to us or the HB dept. Hence, they beleive the issue is dead.

However, as the decison of 25th May contains nothing to identify it as a decision no advantageous decision could have been made.

My question is really are TAS supposed to adjudicate? If so wheres the reg?

Legally, I consider that the actions of the local authority were correct, and the appeal should lapse...

Reg 17 (2) (c) of the HB/CTB D&A regs applies... "as a result of the decision, a denial of, or disqualification for the receiving of, housing benefit or council tax benefit is lifted, wholly or in part".

I consider that you are now disputing the 'reasonableness' of the local autrhority's actions, and I agree from what you have said in your post, that there is a chance that you can attack the local authority's grounds for finding other ways of not paying HB, and the decision to not process a HB claim, does not 'yet' carry the right of appeal. Though see my posting in the Decision making and appeals forum for an update on the law, following CH/3511/2003 which as a Tribunal of Commissioner's decision, is about as good as it gets, and will be of a higher authority than R(IS) 6/04)... Http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=106&topic_id=474&mesg_id=474&page=

I also consider that TAS were right not to interfere with the local authority's decision regarding the appeal, as the legislation seems clear. However, you might want to attack the reasonableness of the local authority's actions to the LGO etc. However, I consider your best route will be by way of CH/3511/2003 and the way that they have 'lapsed' 'treated the claim as defective/withdrawn' as per HB regs 73 & 76 will not be correct if CH/3511 says what I consider that it will say. I am almost absolutely positive (which in HB is pretty rare), that the Commissioner's will give full appeal rights to HB reg 76 (2), and even if the local authority won't accept a late appeal. You can almost bet your shorts TAS will allow a late appeal if you can cite the confusion regarding HB appeal rights etc (why make an appeal, if the LA tell you a decision is not appealable?), and the reasonableness of the LA actions in finding ways to 'frustrate' the refusal to pay HB from being considered by a Tribunal....

What if the advantageous decision is invalid, due to it not containing mandatory criteria as in schedule 6?

It depends on the reasons for the invalid nature of the decision letter...

Harringay LBC v Awaritefe 1999 32 HLR 517 confirms that invalid notices can remain valid, even where they are otherwise not issued in accordance with schedule 6.

However, I think the terms of reg 17 (2) (c) are met in this case, and as that reg is not of itself, dependent on reg 77 of the main HB regs (notification of decisions), on which Schedule 6 rests, the LA has acted lawfully. I still think that your best option is to appeal against the refusal to award HB, and challenge the reasonableness of the LA's actions.... but that’s just what I think, I am sure someone else can offer a contrary opinion.....

thank you very much for the constructive and informative replies.

Am I supposed to start moaning about the system now?

Thanks again

John

You do not say precisely how the questions relate to the commerciality of the tenancy, or to capital.

The burden of proving either non commerciality or deprivation of capital lies on the Council. It is not for the claimant to prove otherwise.

If the question relates to whether or not the claimant still has actual capital that has allegedly been disposed of and the Council are not satisifed that the disposal did take place, then it is entitled to treat the claiamnt as still having the capital in question. I do not think it has the right to lapse the claim (see R(SB)38/85 para 24)

in this case the non-comm aspect is due to the fact that she is a former owner. However, husband was terminally ill and sold property at lower price with the intention of residing there paying rent and using the proceeds to settle his business debts.

This arrangement was ok with the DWP who investigated then paid IS.

Mr then died and Mrs applies for IS in her own right and submits a hb/ctb claim as her husband didn't claim.

The LA are OK that the surviving spouse is not to be treated as not liable under 7(h) but for one reason or another want the claimant to answer something like 28 questions on capital and commerciality.

The claimant no longer lives in the house and has moved away with rent arrears.

The process started in early 2003 and its one of those cases where I really feel like walking into the sunset and going and selling cars, 'phones or something else.

The answer to this bit is effectively done by Reg 38(2) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 as authorised to HB by Reg 23 of the HB & CTB (D&A) Regs 2001: a panel member can make any directions to parties that will make the process work better. And as reported in 'Stagg' it is an underused power. It is best requested using the regulation, and has been used to make LAs issue submissions where time has been the main stumbling block.

(Am also trying to use it with the IR for unadjudicated tax credit appeals)

Have you had success with the reg before the appeal is prepared?

And how do you fget past the clerks who will not put the request before a legally qualified member?

I've also had another problem in that we asked for late leave to appeal (12 months on) but TAS have returned it as they have no file. Salford dealt originally with the hearing. They closed. Liverpool took over. I've sent it directly to the Commissioners Office, who I'm sure will send it back to me. Which may mean that only JR is left?

I have found that often the easiest way is to phone TAS and ask to speak directly to a chair. Give the clerk some details of the case, and get as technical as you want to. Clerks are often then only too happy to pass the call on.

You can then proceed with your request and ask for directions to be given (although you will no doubt be asked for written details before it is dealt with)

Other technique is to ask to speak to the regional chairman's office and then get a direct fax number and address it to RM's clerk.

An RM should be more au fait with a reg 38 request than a DC, DDC or harassed clerk, and in my experience that's where these files end up anyway.

Not sure if anyone else has addressed this but the new 'decision' can simply be appealed. Of course it would be out of time but since the notification does not comply with schedule 6 you shouldn't have any bother having the appeal accepted as valid.

Of course the Tribunal of Commissioner's recent decision will give you another avenue to go down.

I have a similar case where the Pension Service are refusing to pass an appeal to TAS. (it is an overpayment case and the overpayments section have lost the file so they have no case to put). I also tried sending the appeal straight to TAS but they refused to deal with it.

The problem with Reg 38(2)seems to be the reference to the reference to 'parties'. As TAS are refusing to accept that an appeal even exists until it is sent to them by the appropiate office, they would presumably take the view that there are no parties to the appeal.

Victor