Terms & Conditions

[Anonymous]

“Appeals Against Termination Following Suspension

Apparently decisions made under Regulations 11-14 of the DMA regulations, (concerning suspending claims and termination of entitlement following suspension) are [b:bf47f27c39]administrative decisions[/b:bf47f27c39] made outside the normal revision and supersession rules. They are in effect administrative decisions as oppose to “relevant” decisions and as such can be altered whenever it is deemed appropriate.

As they are not deemed to be decisions they are not affected by the DMA Regulations and as such carry no right of appeal. If a claimant wishes to appeal against the termination of entitlement they have no recourse to the Appeal Tribunal and must seek a judicial review.”

This is one opinion following on from A2/2006 does anyone have a better one? 😈

An example of how this seems to work in practice might be thus:
claimant returns an interventions form indicating some change in say income
we write for evidence of the change giving clmt one month
after one month we suspend and give a further month for claimant to provide the information/evidence
when the second month is up we ‘cancel’ claim and invite claimant to make a new claim which will start from Monday after receipt
typically claimant will then ask for backdating to date claim cancelled – but if they had good cause for a late claim then one would expect they had good cause for delay in providing information and evidence in first place
if they dont ask for backdating they have a right of appeal against the start date of new award -but where would that lead ..?
of course the real issue amongst all this bureacracy is that it is all driven by performance indicators, targets etc and not customer service at all as we are now spending 3-4 times as long revisiting the same claims over and over again often involving both assessment officers and appeals officers trying to disentangle a complete muddle of rules and processes

[Kevin D]

Dave;

Following the Current Legal/Technical Issues seminar today, there seems to be an increasingly strong basis for concluding as follows:

1) At face value (i.e. the wording of the legislation), the DWP position is “correct”; BUT

2) At Commissioner level, any challenge under Article 6 (HRA) would almost certainly succeed in obtaining appeal rights against terminations that follow suspensions. In short, a clmt is entitled to a fair hearing by an independent Tribunal.

Peter B, or Peter DLM, may choose to expand further.

Regards

[Anonymous]

Although not always consistant the appeals tribunals seem to be taking the view that there is a right of appeal. Cases we have referred as outside jurisdiction are coming back as admitted with request for a full submission.

[peterdelamothe]

To quote Commissiner Jacobs from yesterday (in general terms):

“it is almost inconceivable that there is no right of appeal in this matter. Commissioners are always going to be looking to grant a right of appeal rather than looking for ways to refuse an appeal”.

[Andi M]

It makes you wonder why under the schedule made under DMA reg 16 it explicitly states that a decision to terminate under DMA 14 is appealable

[Kevin D]

Andi M,

That’s easy. The regs were drafted by the DWP….. 😕 . Don’t think anymore needs to be said…..

[Anonymous]

It may seem pedantic, but what the Schedule says is that suspension and restoration are not appealable, while being careful to preserve any right of appeal there may be against termination. But the Schedule does not actively confer any right of appeal – its job os to take away rights of appeal.

For there to be a right of appeal against the termination mechanism, it is necessary to read Schedule 7 to the CSP&SS Act 2000 with a bit of goodwill and an eye on s3 of the Human Rights Act. Commissioner Jacobs’ comments the other day show that he at least would do that. The way he sees it, the HR Convention is engaged because Article 6 requires an independent appeal hearing on anything that effects a person’s “civil rights”. Arbitrary loss of benefit in the form of termination comes under that umbrella, so there does need to be an independent appeal. By generously interpreting termination as a “relevant decision” it is possible to get termination into the independent Tribunal’s jurisdiction.

[Andi M]

Don’t agree,
5 No appeal shall lie against a decision under Part III of these Regulations of a relevant authority relating to
(a) suspension of a payment of benefit or of a reduction; or
(b) restoration following a suspension of payment of benefit or a reduction, except a decision that entitlement to benefit is terminated under regulation 14.

Its kind of tagged on, but its there

[Andi M]

Don’t agree,
5 No appeal shall lie against a decision under Part III of these Regulations of a relevant authority relating to
(a) suspension of a payment of benefit or of a reduction; or
(b) restoration following a suspension of payment of benefit or a reduction, except a decision that entitlement to benefit is terminated under regulation 14.

Its kind of tagged on, but its there

[Mark]

Peter – I can feel your pain. How many times is that now that we’ve gone over this? You have patience that I can’t match. (Sorry Andi – I assure you that’s not a dig – but we’ve been here before many times).

That provision is about when you cannot appeal – not when you can. Sure, it purports to offer appeal rights for termination, and everyone (including me) has been fooled by it in the past. But it can only do what it says on the tin if the tin has something in it. And (save for a clever interpretaion of a relevant decision) the termination tin ain’t got an appeal in it regardless of the writing on the outside.

[Kevin D]

Andi,

You’re right. But, erm, wrong….. 🙂

The reg clearly says what you say it does. But, it is rendered useless by the CSPSSA quoted by Peter. An Act always outranks a regulation if there is a conflict.

But, as already noted above, a challenge under 6 of the HRA would probably succeed in trumping the lot. Trouble is, until such a challenge is brought, it’ll be in the hands of Tribunals to decide on a case by case basis.

Regards

[Andi M]

Just to clarify wasn’t disagreeing with Peter on the relevant decision bit, in fact i have argued the same point over in the past, just the presence of the exception in the schedule, which was my original point of why put it in when its useless. 🙄

[Kevin D]

[quote:4f9b5e363d]why put it in when its useless. 🙄 [/quote:4f9b5e363d]

Simple 🙂 . As in my last but one post, the DWP drafted it. It’s an oversight. Yet another of many examples of shoddy drafting of the regs.

But, Acts take rank. Until, the HRA challenge that is bound to come….. 🙂

[Author]

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