Appeal Direction

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  • #45629
    dayglow
    Participant

     I have an appeal that I have sent the HMC&TS, which in the first instance deals with liability to pay rent/commerciality as the authority has submitted the argument that the tenancy was a sham also and in the alternatives that should it be found that there is a liability that this is not on a commercial basis and finally that the appellant’s liability was created to take advantage of the housing benefit scheme.

     

    I also addressed the secondary matter that should it be found by the Tribunal that all/one of the above is applicable, that there was a substantial overpayment of HB, which the authority considers is recoverable, and has submitted to Tribunal that it is considered to be recoverable from both the landlord and the claimant.

     

    My point for this post is that the Tribunal has directed “The respondent is to confirm from whom the overpayment is to be recovered”.

     

    Should the Tribunal be concerned with this?

     

    Surely the Tribunal should only concern themselves with the issue of recoverability, namely that the person/s the authority has submitted under regulation 101 as being the person/s from whom the overpayment may be recovered from, as this is an appealable decision.

     

    If the tribunal finds that the overpayment may be recovered from more than one person under regulation 101, any subsequent decision as to whether, or how, to enforce recovery, is none of their concern as any decision that the authority may make on this issue is not appealable, and therefore not within the Tribunal’s jurisdiction.

     

    So could I therefore reply to the Tribunal’s direction stating the authority is declining to answer this direction, as the authority has identified the parties from whom recovery may be sought under regulation 101 within its response document, as this is an appealable decision. However once the Tribunal has made its decision on the persons submitted under regulation 101, any subsequent decision the authority makes as to whether, or how, to enforce recovery, is not an appealable decision and therefore not within the Tribunal’s jurisdiction.

    #128432
    peterdelamothe
    Keymaster

    Yes and I would enclose relevant caselaw that clarifies this very point….plenty of decisions do. Technically you should not at this stage have made the decision on enforcement because you do not know who the liable parties are until the appeal is resolved. Very strange request by a Tribunal.

    #128433
    dayglow
    Participant

    Thanks for your reply, could you suggest some caselaw that covers this point, as I only know of what was said at paragraph 26 of R( H ) 6/06, but as the legislation has changed since this was issued I’m not really sure if I can rely upon this or can I?

    #128437
    Amanda JB
    Participant

    We use CH/2298/2007 It is very clear and outlines the various stages of an O/P

    #128439
    dayglow
    Participant

    Thanks

    #128466
    Anonymous
    Guest

    As the tribunal have directed that you provide the information you will have to apply for a further direction under rule 6(5) of the First-tier Tribunal Rules to amend, suspend or set aside the first direction.

    HTH

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