Terms & Conditions

[liffe]

We have a claim where in August 2021 entitlement ended for HB due to a non-dependent joining the household and the deduction exceeded the rent level. The calculation was done on 21/10/21 and notification letters issued which advised of an overpayment. HB Payments had last been made in October 21. Entitlement continued for CTR.

In December 21 an invoice was issued to the customer for the overpayment of HB from which she has made an arrangement to pay.

In July 22 we were informed that the non-dependent had moved out in March 22, and her CTR claim was updated accordingly. She queried her ‘previous entitlement’ and thought this would continue as financially nothing had changed. She did not refer to HB, as it was assumed she was referring to her CTR.

Ultimately in November 22 we established that she thought her HB claim would resume following her non-dep moving out.

She has stated that it was our error for not advising her that she would need to claim UC, and we should re-instate her HB which would mean a period of non-entitlement due to the deduction, and then re-qualifying.

Can this be classified as official error on our part as at no stage did we advise her about claiming UC, and none of our correspondence that is issued mentions this? She has said she did not query the invoice or the lack of HB payments due to her ill health.

[Kay_Tade]

Short answer is no.

[nick dearnley]

Assuming she was notified of both the end of HB and the overpayment, then no. The 21.10.21 decision is now outside the 13 month maximum for an appeal – unless there was an error in it that can be corrected – and she can’t say she was unaware of the overpayment. The fact is that if she had tried to reclaim at any point after the decision was made it would have been rejected and she would have to claim UC. It’s her responsibility to enquire about potential entitlement so the argument about UC advice doesn’t fly, in my opinion – bad advice can be official error, but I’m not convinced that no advice can be (even though official error includes failure to act).

[Peter Barker]

Official error wouldn’t achieve anything in this case anyway. The decisions ending HB and creating an overpayment were absolutely correct: there are no grounds on which they could be revised.

A knowledgeable assessor might have suggested to the claimant at that time that the much lower NDD rates in UC made UC worth a look. But failure to suggest claiming (or at least enquiring about) UC doesn’t make the HB decisions wrong. It would be more a basis for a complaint.

There are stronger grounds for complaint from March 2022. Again, nothing could be done to revive the HB award, but failure to signpost to UC in March 2022 was probably poor advice and the Council might bear some responsibility for any delay by the claimant in claiming UC. The remedy would be compensation – not putting HB back into payment.

[Mike Hughes]

Totally agree with the foregoing. Three additional points:

1 – the 13 month limit is not absolute. There is discretion to extend that where appropriate and always has been. It is very much an “in exceptional circs.” type discretion but if the LA contributed to any delay in resolution then that may well apply. Not here, but more generally.Two excellent decisions out on pretty much this point earlier this week.

2 – In terms of advice it’s always useful to think of who has a duty to advise. Millions of people continue to foolishly ring things like the PIP Enquiry Line etc. and accept the advice as a gospel. This despite the DWP having literally never had any advice giving function or obligation. Ditto local authorities to a certain extent.

3 – There are numerous examples in case law of a failure to offer timely and accurate advice amounting to official error and that includes not giving any advice at all. Given the number of LA benefits staff known to have glibly advised people incorrectly to claim UC over the past years there is always going to be some concerns in this area but, for me, it always boils down to whether there was any duty/responsibility to advise in the first place. There is a big difference between not advising someone to claim UC and screwing up their entitlements for the rest of their lives by telling them to wrongly claim UC.

[nick dearnley]

I’d be very interested to see the caselaw that potentially extends the 13 month time limit for revision request/appeals, especially by discretion. It’s obvious that the clock only starts on a properly made decision with revision/appeal rights given, and there might be an argument about when that is, but D&A reg 5 looks pretty definite to me, as does rule 23 in the Tribunal Procedure Rules.

[Peter Barker]

[2015] UKUT 0367 (AAC) is a case where the 13-month time limit was extended because to do otherwise would have violated the claimant’s Article 6 right to a fair hearing. It was a case where the original decision notice was issued but not received by the claimant 9evidence to that effect accepted), and nothing had happened in the meantime from which the claimant ought to have inferred that the decision had been made and at least queried what was going on sooner.

I’ve just had a case where the Tribunal accepted my invitation to apply that principle. The facts were:

– claimant changed jobs, reported this promptly. Doubled her wages.
– HB remained in payment to the housing association for a couple of months due to delay by Council reacting to the claimant’s change of circs. Many chasing emails from claimant during this time
– Council eventually gets round to deciding she was no longer entitled to any HB at all, plus overpaid for a couple months
– Ongoing HB payments obviously stopped
– Decision notice not received
– 18 months later Council starts chasing up the overpayment, claimant appeals at that point
– Zero correspondence in between

The Tribunal accepted that the claimant had been unaware of the overpayment decision and agreed this was a case where the 13-month time limit should be “read down” under the Human Rights Act.

We still won the substantive appeal: should have known and indeed did know she was being overpaid.

[Mike Hughes]

See also [2021] UKUT 329 (AAC) First-tier Tribunal failed to give adequate reasons for decision not to exercise discretion to extend 13-month absolute time limit for appealing.

[2022] UKUT 292 (AAC) First-tier Tribunal’s failure to recognise it had discretion to admit an appeal outside the 13-month absolute time limit in exceptional circumstances amounted to error of law.

[nick dearnley]

Peter, that make sense – no decision until it’s been received. Is that an extension though? Or is it that the accepted evidence that the decision wasn’t received and the clock hadn’t started?

Thanks Mike, some reading to do.

Every day is a school day!

[Mike Hughes]

I would have posted links to the decisions themselves but links, for me, appear to be prohibited and my posts never appear when I include them.

[Kevin D]

Back in 2003, there was a House Of Lords judgement where, amongst other matters, the issue of when did a decision take effect in the absence of notification – it was referenced on several occasions in benefit related decisions by Commissioners and UT Judges alike.

The case was R v Secretary of State for the Home Department and another (Respondents) ex parte Anufrijeva (FC) (Appellant) [2003] UKHL 36

Link: https://publications.parliament.uk/pa/ld200203/ldjudgmt/jd030626/anuf-1.htm

Depending upon any recent(ish) developments in case law, para 26 of Anufrijeva may be of interest:

——————
“The arguments for the Home Secretary ignore fundamental principles of our law. Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system: Raymond v Honey [1983] 1 AC 1, 10G per Lord Wilberforce; R v Secretary of State for the Home Department, Ex p Leech, [1994] QB 198, 209D; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115.”
——————

In simplistic terms, a decision doesn’t take effect if there has been a failure to notify the individual concerned. In turn, following LB Camden (resp) v MARTIN (appel) [2009] EWHC 2040 (CH), the time limits for appealing don’t start to run (para 8). [again, subject to developments in case law that I may not be up to speed with].

Additional material from the Kevin D archives (with the same running caveat)… Anufrijeva dovetails with LB Haringey v AWARITEFE-2 [1999] EWCA Civ 1491 32 HLR 517 insofar as the former addresses what happens if there is no notification and the latter covers what happens if there has been a notification but there is an argument about whether that notification sufficiently meets the minimum content legally required (it will so long as no substantial harm or significant prejudice occurs).

I just love the copy/paste command… 🙂

[Peter Barker]

Nick: the issue was that Reg 2 of the D&A Regs deems a notice to have been sent on the day it was posted, and Schedule 1 to the Procedure Rules counts the time limit from the day the decision was sent – if the decision never arrives at the claimant’s address despite having been posted, it doesn’t prevent the time limit from expiring after 13 months. Where that results in injustice, the remedy is to “read down” the maximum time limit.

[Author]

Posts