Reply To: Advice on an unusual FTT appeal decision

#163407
d-stainsby
Participant

I think you may have confused matters in your submission by referring to the LA's discretion.

The Tribunal judge is correct in that both Reg 29(3) and Reg 80(4 ) to (7)  are not written in the language of discretion. (Reg 80(4) to (7) are not merely concerned with rent, they also concern applicable amounts and income)

Reg 79 provides for the date any change of circumstsances ( including changes in income) is efffective from.  Reg 79 is again not written in the lauguage of discretion

The calculation of earnings is a mathematical exercise and Reg 29(3) lays down certain parameters as to how that mathematical exercise is to be carried out.  One particular parameter is that  a period longer than 52 weeks before the date of a claim is precluded, other than that the period over which earnings are to be averaged MUST  be such period that will give the most accurate estimate.

This is a question of judgment not discretion.  (Mr Commissioner (as then was ) Jacobs discussed this in CH/1780/2005.)

I dont think the Judge has made a new outcome decision, what (s)he appears to have done is to set aside your decision and remit it back to you for a new decision..  (See R(IS)2/08 at [48] for an explanation )

Unless the Judge has indicated that if there is any dispute regarding your fresh calculation, the matter is to be referred back to him/her, then all you need to do is make a new decision, taking on board the remarks about Reg 79 and 80. (The judgment as to the most accurate calculation of average earnings is still yours)

The new decision will of course carry fresh appeal rights.

I would not waste my time with an SOR in these circumstances.