Can we do anything?

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  • #31844
    marlene
    Participant

    I have a claimant who was intervened on because he had not been reviewed for some time, we issued a postal check, a reminder, suspended then cancelled in July 2009.

    The landlord approached us in September 2010 as they were concerned about arrears. They had not been able to make contact, and they claimed that the claimant was illiterate. We sent a visiting officer out to complete a new claim. It was clear from the visit that the claimant had difficulty and had not opened any of his mail for some time. It transpired that the person who used to assist him had passed away, and he had no one else that he could ask.

    I have backdated for 3 months. However he still has significant arrears. Is there anything else that I can do? Am I stretching it to say that there was a mistake. There is evidence from our records that the claimant had difficulty, therefore we could have sent a visiting officer out in July 2009 before cancelling the claim, is this a stretch too far, or does anyone else have any ideas on how I may assist this claimant.

    #89057
    Anonymous
    Guest

    Can you give the exact dates when the forms/notices were sent and the decisions were taken?

    Did the suspension notice comply with D&A Reg 13, tell the claimant what information was required, the time limit to provide it, what to do if he needed more time and what he should do if it was difficult or impossible to provide the information?

    #89058
    marlene
    Participant

    Postal review sent 29.04.09
    Reminder sent 13.05.09
    Suspend letter sent 09.06.09
    Cancellation letter sent 13.07.09

    Thanks 😀

    #89059
    Anonymous
    Guest

    Information requirement 29 April, more than one month elapses so suspend, again more than one month elapses so terminate, so on the face of it termination was correct, but what of the format of the suspend notice, did it comply with all the requirements as I outlined?

    If it was in any way deficient, you can revise the termination decision on grounds of officcial error, the error being an error of law which meant that you had no power to terminate.

    Do you have evidence that the claimant actually received the form and the reminder? I ask this because Deputy Judge Mark held at paragrpah 14 of CH/1764/2008

    “14. I am unable to see how, in the ordinary use of the English language, a person can be said to have failed to comply with a requirement of which he has no knowledge or means of knowledge. The requirement is only made once it has been sufficiently communicated. In this case the effect of the tribunal’s finding that the council’s review form was not received by the claimant was the requirement was never communicated to him, and he never came under any obligation to respond to it. In the absence, therefore, of any special provision such as is to be found in regulation 2 of the Decisions and Appeals Regulations, I am unable to see how he can have failed to provide information, the request for which has never reached him because it was lost in the post. Its loss in the post meant that the requirement to provide the information was never communicated to him.”

    #89060
    marlene
    Participant

    In terms of whether he received the forms and letters, this is difficult, as they were sent, but when he receives post they are put to one side unopened, in this case they remained put to one side as he had noone to help him. Does this amount to receipt? I had taken the view that it does.

    The suspend letter, told him that he had not responded to the review or the reminder. Therefore he was advised that his claim was suspended and that if he did not respond that his claim would be terminated. Therefore I don’t see any ‘mistake’ here.

    Its difficult as the claimant can clearly not manage paperwork, but I don’t think that how we have acted amounts to a mistake. In my view its bad practice, and we should have acted differently when we took the decision to terminate. Does failing to take account of information that indicates that someone is illiterate and does not respond to letters amount to a mistake? and one that is covered by the anytime revision provision? 😕

    #89061
    Anonymous
    Guest

    I see a big mistake in the suspend letter, and such mistakes have been considered by Commissioners and Upper Tribunal Judges (eg in CH/2995/2006,CH/1602/2008, CH/2727/2008.)

    The mistake is that the notice does not on the face of it comply with Regulation 13(3) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 which provides:

    “(3) The relevant authority shall notify any person to whom paragraph (2) refers of the requirements of this regulation”

    The notice must therefore include a statement of the requirements of regulation 13(4)

    “(4) A person to whom paragraph (2) refers must–
    (a) furnish the information or evidence needed within a period of–
    (i) one month beginning with the date on which the notification under paragraph (3) was sent to him; or
    (ii) such longer period as the relevant authority considers necessary in order to enable him to comply with the requirement; or
    (b) satisfy the relevant authority within the period provided for in paragraph (4)(a) that–
    (i) the information or evidence so required does not exist; or
    (ii) it is not possible for him to obtain the information or evidence so required.”

    If as you say you only told the claimant that his benefit would be terminated if he did not provide you with the form (presumably within a month), you failed to notify him of the other requirements, ie that he could ask for more time, or that he could be given the opportunity to explain why he could not provide the information.

    The decisions I refer to make it clear that this is a mandatory requirment and is a very strict safeguard for claimants. If you breach that safeguard, then the power to terminate under Reg 14 is undermined.

    I don’t think it is a step too far to revise on grounds of official error once you have identified the defects in the suspension notice, because those defects of themselves can be fatal to the power to terminate

    #89062
    marlene
    Participant

    Thanks for your help on this.

    Think we need to add something to the suspend letters we issue!

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