Can this claim be superseded?

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  • #31896
    smcphail
    Participant

    This claim is the subject of some debate in the team. Can we or can we not supercede under the following circumstances?

    Basically new claim was submitted in Dec 09 and subsequently made ineligible because the claimant had not provided info with relation to her joint ownership of property with estranged partner. She submitted a request for revision of this decision and a new claim. The new claim was processed in error ie without determining her share in joint property owned. When her revision request was assessed it was noted that her current award was incorrect. Claim was suspended and subsequently terminated as she failed to provide info.

    Claimant then submitted an appeal and we have now recd confirmation that the property was repossessd in April 10. At this point we are unable to revise the decision from Dec 09 as we still do not know what her share of the property was during Dec 09 and April10, and it is possible that this info will not be provided given claimant’s lack of co-opearation to date. However claimant has considerable rent arrears and court case scheduled shortly so I wondered if in interim we can supercede the decision from the date the property was re-possessed. I would also add that there are currently no issues of equity as property still not sold.

    Would appreciate any advice on this matter

    #89177
    Chris Robbins
    Participant

    Claim received Dec 09.
    When you made the claim ‘ineligible’ do you mean you treated it as defective under Reg 83 or did you make an inference that capital exceeded?
    You do not say what date you made this decision, or whether the application for revision was made within a month of the date you notified your original decision.
    If the application was made within a month then the fact you received a ‘new claim’ becomes irrelevant. You still have a subsisting claim on which a decision needs to be made; i.e. do you revise your original decision or not.
    I also wonder what the appeal is about. Have you raised an O/P for the period whent the ‘new claim’ was in payment and are seeking to recover? If so on what grounds are you arguing that these payments are recoverable?

    #89178
    smcphail
    Participant

    Hi Chris

    Thanks for looking at this. In answer to your questions, claim was made defective under Reg 83. Decision was made 20 January 10 and revision request recd 10 March 10 so outwith one month. The appeal was basically to revise the decision of 20 January that HB was not payable as had not provided all info.

    With relation to the termination of the claim recd March, there is an o/p between 8/3-28/3 for £180 and it has been set for recovery from claimant. However I take your point, clearly this was official error and I don’t think the Council could argue that the claimant contributed to this error or could have reasonably have known was being o/p so this decsion wil be revised.

    I hope above info is sufficient for you or any one elso to provide assistance with determining if the original decision of 20/1/10 can be superseded from April 10, as we now have info the property was re-possessed at this time.

    #89179
    Chris Robbins
    Participant

    Your second post indicates that you paid the March claim from 8.3.10 and then suspended and subsequently terminated from 28.3.10.

    Your timings still seem a bit odd. If you suspended from 28.3.10 and wrote to claimant for the info you required you had to give her a month to reply; i.e. up to 28.4.10. I do not know on what date you made a decision to terminate the award made on the March claim for non return of info.

    If that decision was made AFTER you had received the info regarding repossession then you could argue the decision was invalid as there was no failure to submit info that was reasonably required to determine ongoing entitlement. If she had no capital after property was repossessed you really had no grounds for terminating the award.

    As far as the O/P you have calculated is concerned, I also wonder whether that is correct. I assume it has been based on an inference that she possessed capital valued in excess of £16K. If that assumption is based on her interest in a property on the point of repossession, how likely is it that she had that amount of equity in it? I appreciate you have no evidence one way or the other, but the relevant test when considering U/E for an O/P period is balance of probability. You do NOT need hard evidence to make such a decision, unlike the requirement for evidence needed to make a decision on an ongoing award.

    #89180
    smcphail
    Participant

    Thanks for looking at this Chris. The claim recd March was susp on 25 March 10 and term 27 April 10 effective from start date of claim of 8/3/10. At this point the Council was not in receipt of info pertaining to property having been repossessed. With regards the overpayment, as stated earlier this was official error. However we may be able to reduce this by U/E as you have stated.

    At this point in time I have an appeal against the original ineligible decision of January. As we have recently recd conf property was re-possessed in April, I feel I cannot revise the decision from December to date as we do not know what the claimant’s value in the property was between December and April, she will need to complete an LA1. However I do know that the property was repossessed in April and is still being marketed, therefore currrently no issues of capital. So I wondered if it would be appropriate to supersede this decision from April in the interim or can this only be done at same time as revision. In other works if claimant fails to complete LA1 does this mean that the ineligible decision of January canot be revised or superseded at all?

    Would appreciate all advice on this matter

    #89181
    Anonymous
    Guest

    Now that you’re at appeal stage I think you need to move away from any “ineligible”, “defective” or “termination” decisions – remember termination under the D&A regs only takes effect from the date of suspension and a claim can only be defective if the claim form is not properly completed or information requested on the form was not provided. This does not seem to be the case in the decisions you mentioned.

    You need to make some actual outcome decisions with regards to capital. This will involve considering all the evidence and deciding how much the property is worth. The fact that it was repossessed in April is certainly relevant. Remember you cannot penalise the claimant for failing to provide evidence she has no access to – for example if the estranged partner held all of the mortgage papers your claimant would not have been able to provide a mortgage statement. Remember the property can be disregarded for 26 weeks if it was the claimant’s former home, or indefinitely if the estranged partner is a lone parent.

    #89182
    Kevin D
    Participant

    [compiled without seeing Michael Wigg’s post]

    Long post… apologies if it seems a little disjointed, but my ability to concentrate is somewhat off today.

    Like Chris, I’m struggling with the timeline just a bit. It *seems* to be as follows:

    [u:6ee9b05f35]”Claim 1″[/u:6ee9b05f35]

    Claim made Dec 09
    Info requested (date unknown)
    Info not provided

    Decision 20/1/10 (“defective”).
    Appeal – late.

    [u:6ee9b05f35]”Claim 2″[/u:6ee9b05f35]

    Claim made duting week commencing 1 Mar
    HB (erroneously) awarded from 8 Mar 2010
    Payment suspended
    HB award “terminated”

    Observations: in claim 1, the decision cannot be superseded as it was a “nil” decision. “Nil” decisions can only be revised. However, I wonder if you arrived at the correct decision. Although you say the decision was reached that the claim was defective, such a decision can only be made if the info / evidence sought was specifically requested on the claim form. If the info / evidence requested was IN ADDITION to that requested on the claim form, there is no legal basis on which a “defective claim” decision can be made – it should have been an “inference” decision.

    In claim 2, you say the award has been terminated, rather than there being a revision, or supersession, of the original decision. If a termination has been undertaken on the basis that DAR 14 applied, there cannot be an overpayment – a termination cannot be retrospective. Also, if the suspension notification did not expressly set out the requirements of DAR 13, the termination will again be invalid. The only means by which an overpayment could arise for 8 Mar 10 onwards would be by means of a revision of the original decision, not termination or supersession. As with claim 1, I can’t see any lawful means of superseding a nil award on claim 2.

    If it turns out your processes have been flawed in law, I’d be inclined to give the claimant one last opportunity to provide the info – effectively it is a request for evidence in support of his appeal. The time limit for this is 14 days.

    If the clmt complies, I’d revise the decision on claim 1. If the clmt qualifies throughout, that simply negates claim 2 in any case and, of course, the appeal would lapse.

    If the clmt doesn’t comply, or doesn’t qualify following compliance, I would correct all the procedural errors which, presumably, would not make the clmt any better off. On that basis, the appeal would still be live and it should be forwarded to TTS to consider whether a late appeal should be admitted. I expect it would be and you’d then have to compile a full submission.

    The importance of following the procedural law in terminations / revisions / supersessions cannot be emphasised enough. If the case was to go to Tribunal in its current form, I would fully expect the appeal to succeed on a technical basis, irrespective of any substantive issues.

    #89183
    Anonymous
    Guest

    I agree with everything Kevin said and would add two more points:

    – the Tribunal should only be interested in events down to the date of the decision under appeal. Anything that happened later, in particular repossession, is irrelevant to the appeal except insofar as it provides evidence with hindsight of what the circumstances were down to the date of the decision. One possible conclusion the Tribunal might draw from the repossession is that the claimant probably was not in much of a position to utilise her capital before then.

    – if the refusal of HB is confirmed on appeal, there is a bit of a problem going forward from April. The claimant would need to make a new claim on those new circumstances. It doesn’t look as if she did. However, bearing in mind that few if any claimants would be able to get their head around the adjudication rules, it might be reasonable to interpret correspondence around that time about the appeal as (in substance) an intention to claim from April.

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