Reply To: Defective claims


OK, here’s the longer answer.

Deputy Commissioner Poynter’s comments quoted above do not say that the anti-test case rule doesn’t apply to defective claim decisions. He is talking in general terms about the effect of case law: it does indeed pronounce on how the law should always have been interpreted. That is precisely why there is an anti-test case rule, which the Deputy Commissioner doesn’t mention at all (because Hounslow didn’t, and he was dealing with Hounslow’s submission). Without an anti-test case rule, every claimant who had ever been on the receiving end of a decision taken under a now discredited “old” interpretation could come forward and demand arrears. Parliament has decided they cannot do that except in previously flagged “look-alike” cases.

But defective claims do present a special difficulty. Paragraph 18 of the Schedule requires the Council to make a decision in the old way as regards any period of entitlement falling before the date when the new case law was issued … but the trouble is, the “old” way of dealing with defective claims did not involve making a decision at all! So it is very difficult to apply para 18 in any coherent way to defective claim cases and the best thing to do might be to give up and make fresh first-instance decisions on such cases as and when they come to light, including new appeal rights.