Adverse decisions

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  • #23107
    Anonymous
    Inactive

    This may seem like a silly subject to raise, but we are having a severe difference of opinion and getting nowhere fast with perusing the Regs/circulars:

    *Claimant makes contact by phone to make a new claim
    * Processor talks claimant through claim form advising what docs he needs to provide with his application for benefit to enable an assessment to be carried out, and making an appointment for the claimant to come in with the form & docs
    *The claimant turns up for his appointment a few days later with the completed form and some of the necessary evidence, but not all of it

    The dispute is over whether an adverse decision can be made at this point, giving the claimant one month to provide the rest of the evidence,or whether the claimant has to be given the one month to provide the info before making any decision, be it adverse or otherwise

    Any help would be appreciated (plus if anyone can let me know which circular to look at I would be eternally grateful)

    #10955
    Kevin D
    Participant

    Evidence requests are under [b:c49f3d73eb]HBR 86[/b:c49f3d73eb] which refers to info / evidence being provided in respect of a [u:c49f3d73eb]claim[/u:c49f3d73eb]. Therefore, in my view, [b:c49f3d73eb]HBR 86[/b:c49f3d73eb] is not engaged until a claim is made. In turn, the clmt has one month from the date of claim (or from a first time request for info – whichever is LATER).

    Just to clarify, an “intention” is not a “claim” ([b:c49f3d73eb]R(IS) 10/06 (aka CIS 2726 2005)[/b:c49f3d73eb]).

    As an aside, it can be a fine line between a an “intention” and a “claim” where written correspondence is involved. If some one puts in writing “I intend to claim”, that is almost certainly an intention. But, if the wording is “Please accept this as my claim”, that is almost certainly a claim (albeit probably not made in accordance with [b:c49f3d73eb]HBR 83(1)[/b:c49f3d73eb].

    Hope the above helps.

    #10956
    Anonymous
    Inactive

    Yes thanks for that, but just so I’m clear in my own mind (sorry to be dense) – the claimant has to be given one month from the date that the application is received in the office before any decision is made, and an adverse decision cannot be made before that one month is up (but they are still given one month before the claim is finally ended)- is that right??

    #10957
    Kevin D
    Participant

    Kind of right.

    The process should look something like this:

    1) intention (if applicable)
    2) claim
    3) evidence – one month from claim (or such longer time as appropriate etc).
    4) decision – with appeal rights etc

    At the “decision” stage, you have two options where insufficient evidence / info has been provided.

    a) simply decide that the clmt hasn’t complied with HBR 83(1) & HBR 86; or

    b) take the extra step and draw inferences.

    Either of the above decisions has the same status as any other decision. As ever, the clmt has the usual rights for a statement of reasons, and/or recon request, and/or appeal.

    The claim doesn’t remain “live” for another month after the decision. But, it seems that many LAs take a fairly relaxed view that if all of the outstanding evidence is provided within the one month dispute period, they will automatically revise the decision and assess the original claim. They don’t have to – the LA could legally insist the clmt makes a formal request for a revision (or make a formal appea). The LA would also be within their rights to uphold the original decision. As to what your LA does, or wishes to do…… over to you. 🙂

    Hope the above helps.

    #10958
    Anonymous
    Guest

    (Posted before seeing Kevin’s posting above – though I think we are saying the same thing?)
    I’m not so sure about the last bit of your argument Helen, so I’ll stick my head above the parapet and wait for the bullets! (Perhaps we should have an emoticon with a tin hat on!! 😯 ).
    I feel that you cannot make an adverse inference until the one month for the supply of evidence is complete – if you have given someone one month before you make a decision on their entitlement I don’t think you can then go ahead and make it anyway.

    After the month is up and you have made the decision, based on the adverse inference as info has not been provided, you have made a decision which is appealable (is there such a word? 😕 ), and if the person provides the evidence at that time you may decide to revise your decision.

    The “one month extra” which added a month to the right of appeal re a termination decision went in November 2005, I think. 8)

    #10959
    Anonymous
    Inactive

    Don’t know about a tin hat – I think I’m going to need full body armour – thanks for your replies, I think I now know what to do…….. (run away and hide is looking pretty good about now)

    Thanks

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