D and A Reg 7 (2) (d)

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  • #22256
    Neil Adamson
    Participant

    Claimant’s entitlement ended on grounds of non occupation.

    Appeal hearing agrees with decision but states customer returned to the property towards the end of the OP period.

    The Tribunal advises the Authority to make a new decision regarding whether it would be appropriate to make a new award from the date of return. This is refused, goes to hearing, and is again found in favour of LA.

    This all ends up at the Commissioner. He states the Tribunal should not have offered this advice and we are bound by the decision of the first hearing.

    However, as we obtained info to confirm the “return” was for one day only, can I still make a new decision to refuse even though this has already gone to the Commissioner?

    #7299
    Anonymous
    Guest

    If you have discovered new evidence that was not available to the Commissioner, yes you can make a superseding decision under Reg 7(2)(d)(i). What you cannot do is interfere with the merits of the Commissioner’s reasoning on the facts available to him or her, or override his or her views on the law. Reg 7(2)(d)(i) is an anti fraud device that allows the Council to change a decision locally (without having to go back to the Tribunal or Commissioner) where undisclosed information is only discovered after a case has been through the appeal system.

    This is something that shouldn’t be done lightly though. It might be wise to check out an alternative course of action first – an application under Commissioners’ Procedure Reg 31 to have the decision set aside. This Reg is designed for situations where evidence existed at the time of the appeal but was accidentally not seen by the Commissioner or the parties to the appeal. But you could present your application as a friendly request for advice – asking the Commissioner whether s/he thinks a set aside or a Reg 7(2)(d)(i) supersession would be the better option. While the Commissioner cannot legally refuse to allow you to supersede under Reg 7, s/he can give you a hint as to what would happen if the claimant took the new decision all the way to the Commissioners again, and if so whether there is any point in making the superseding decision.

    #7300
    Neil Adamson
    Participant

    Thanks for that.

    The Commissioner has made a decision on the procedural merits of the case. That was the basis of him accepting the case. He has not, as far as I can see, considered that matter of occupation.

    His decision was that a second hearing should not have taken place and we should have implemented the initial decision or appeal ourselves to the Commissioners.

    The second hearing heard evidence that was not available at the first hearing. Can we therefore apply the reg to the initial tribunal hearing?

    #7301
    Anonymous
    Guest

    OK, I see. You don’t have a problem with the Commissioner’s decision, because it is simply saying that the second Tribunal decision (and presumably the LA decision that led to it) is null and void – the matter was settled by the first Tribunal decision. Deputy Commissioner Poynter dealt with something similar in an Islington case CH/2267/2005 – by setting aside a decision that was in his jurisdiction, he effectively set aside any other decisions that flowed from it even if they were not technically in his jurisdiction. So I think you can say that anything that happened after the first Tribunal is now rolled back and you can pretend it never happened.

    As for the first Tribunal decision, it is probably wrong in law because the claimant’s entitlement had already ended when he moved out and he couldn’t qualify again without making a new claim. The Tribunal might have felt it unnecessary to stand on ceremony and considered it reasonable to treat any correspondence on the matter as being that new claim – but without a clear finding to that effect the Tribunal’s decision would still be lacking.

    It may be that Reg 7(2)(d) offers you a way back into the first Tribunal’s decision – if the first Tribunal was hoodwinked by the claimant about the extent of his purported return home, then the Tribunal was ignorant of the facts. But if the Tribunal was aware of the facts and took a view, you would only have the option of an appeal to the Commissioner and Reg 7(2)(d) would not apply.

    #7302
    Neil Adamson
    Participant

    The original tribunal decision was a bit of a shock. Part of the evidence was statements from the neighbours and in one it mentioned seeing the claimant in the property on a certain date. This was taken as the date of return. It wasn’t really discussed in any great detail.

    The second hearing had further statements, further questions to which the claimant had not provided satisfactory answers to and utility bills.

    Would it be worth requesting the Commissioner’s opinion on this course of action in our response or simply tell him that is what we are going to do?

    Sorry if this is all obvious but in sixteen years in bens this is the first case I have had that has gone to the big c!

    #7303
    Anonymous
    Guest

    Strictly speaking there is no need to tell the Commissioner anything – if the claimant objects and appeals against the new decision, the Commissioner will likely find out soon enough!

    But a third Tribunal could be a loose cannon in between times – no telling what further complications they might heap onto the already complex adjudication history. For that reason, covering your back with an approach to the Commissioner now might be prudent.

    Now the Commissioner doesn’t have to enter into any correspeondence unless you are pursuing further options – so topping and tailing your enquiry as an application for set aside under Reg 31 would oblige the Commissioner to comment. You could set out the alternative course of action you have in mind (a Reg 7(2)(d) supersession), and hopefully the Commissioner will give you a bit of “steer” as to whether that is a valid way forward (but I am pretty sure it is, given that Tribunal 1 was clearly only given half the story).

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