Terms & Conditions

[Ian Stephens]

Following an intervention it was found that a claimant had undeclared capital. We therefore asked for proof to be provided, unfortunately the claimant didn’t we cancelled the claim. An appeal has now arrived stating that the information was supplied, although it did not arrive in the office. The claimant is refusing to supply it again and wishes to appeal against our decision not to award ctb.

This should be an easy one to resolve but the claimant is digging her heals in and I’m not sure she really has anything to appeal against. Any suggestions?

[markp]

Is there sufficient capital to calculate a NIL entitlement or is it that you don’t know? Also did you make the tremination as an adverse inference or suspension and termination? (you don’t specify so it isn’t clear which way I’d jump).

(1) Adverse inference drawn. This could go to tribunal as it stands with no evidence supplied to negate decision. Await TTS decision.

(2) Suspension followed by termination. Again with sufficient evidence of procedure followed etc you could take it to tribunal. You could however revise the termination with an adverse inference and give afurther month to appeal that decision. Original appeal might no lapse but then you’d have both decisions before the tribunal with no evidence to support the dispute from the claimant.

That’s my thoughts on the subject.

Do I know what I'm doing? The jury's out on that........................

[Kevin D]

It’s not clear what the decision was – i.e.

1) suspension, then termination; OR

2) supersession (i.e. change of circs re capital) on the basis of drawing an inference from the clmt’s failure to supply evidence ([b:f2fd238a68]see R(H) 3/05[/b:f2fd238a68]).

The clmt definitely has the right of appeal in the second scenario. In the view of some (myself included), the first option is also appealable on HRA grounds. However, the DWP’s position is that a termination is not appealable.

Either way, the appeal must still go to TTS. If you take the view that there is no right of appeal, it is up to TTS to make the final decision. If you accept there is a right of appeal, it shouldbe dealt with as normal; but I’d suggest making it clear in the submission that the LA has no record of ever receiving the evidence in question. [b:f2fd238a68]ALSO[/b:f2fd238a68], there is nothing to stop you writing a covering letter asking the Tribunal to consider issuing a DIRECTION to the clmt requiring her to furnish the evidence in question. If the clmt refuses, the Tribunal will be none too impressed.

Regards

[Ian Stephens]

thanks to you both that’s been useful. It was cancelled through the suspension/termination route and my opinion is that they can’t win the appeal even if there is actually something to appeal against. Maybe the correct action to take is to say that the appeal is misconceived and write a shortened submission to the Tribual Service and let them make a decision before going any further.

[Kevin D]

Ian,

I think you’d simply end making work for yourself. I’d be very surprised if the appeal wasn’t admitted and a full submission would then be needed anyway – in addition to the original. I’d probably take a different view if it was an OOJ, or late unsupported appeal, but in this situation, it may save time to bite the bullet.

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