Adverse Inference

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  • #31750
    Em21
    Participant

    Hi

    We had a claim where we made the inference that the claimants income was too high to qualify for HB/CTB. The claimant completed a self employed proforma with projected earnings. We used these projected earnings and informed the claimant that they did not qualify for HB/CTB.

    The claimant appealed against the decision stating that the accounts for the company were due from his accountant shortly and would confirm his actual income. The claimat was given over 3 months in which to supply this information and it was not returned to the La so we informed the claimant that the appeal would proceed as we did not have sufficient evidence.

    A week after this letter was issued the accounts were returned to the La so rather than take to appeal it was considered to re-open the claim. However on further inspection of the app form we had not asked for proof of capital or the partners income on the initial claim, just made the assumption that the claimants income was too high.

    I have given the claimant a further calendar month (with a reminder letter) and now the information required to complete the claim has not been supplied. I am reluctant to give further time as this claim was made in February 2010 and the claimant appears to provide things when it suits them.

    My question is this: Can I amend the claimants income using the accounts but now assume that capital and partners income is too high to qualify for HB/CTB and treat this as a revision of the original decision?

    #88813
    peterdelamothe
    Keymaster

    Yes you can if you want to; that would be a new decision and would attract a fresh right of appeal.

    However, I am not sure that you had the power to do this – “so rather than take to appeal it was considered to re-open the claim”. As you have not changed your decision there is an argument that this should have gone to Tribunal without further delay.

    I am hesitant on this though because the Appeals Service is flooded with appeals as it is and if you thought you could sort it out without referal then that has to be a common sense approach (and in accord with what the rep from AS said at our conference last week).

    #88814
    Anonymous
    Guest

    [quote:c329f606f0]Can I amend the claimants income using the accounts but now assume that capital and partners income is too high to qualify for HB/CTB and treat this as a revision of the original decision?[/quote:c329f606f0]
    You could do this, but the decision would not have been revised to the claimant’s advantage so I reckon the appeal should still have to proceed to The Tribunals Service. Its pretty much the same decision – “You haven’t provided X so we have decided Y” – just insert the required words!

    #88815
    Kevin D
    Participant

    Unless the decision under appeal is revised in favour of the claimant, the appeal must proceed to TTS. There is no (legal) alternative and the workload of Tribunals (and LAs) is not a relevant consideration. If HB was “X” at the time of the original decision and remains “X” after the revision, it is not in favour of the claimant – even if the method of reaching “X” is different.

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