Terms & Conditions

[Anonymous]

After a couple of months away from HB recently I wondered if there have been any changes to Defective/Effective claims regs.

My understanding after the changes were brought in was that:

A) Making a claim defective is an actual [b:6a63f412b4]decision[/b:6a63f412b4]
B) it carries a [b:6a63f412b4]right of appeal[/b:6a63f412b4]

The same applies to a nil entitlement HB decision made using “adverse inference” (extra info requested, not provided within time limit)
i.e. Using adverse inference to Nil a claim is a [b:6a63f412b4]decision [/b:6a63f412b4]and it carries the [b:6a63f412b4]right of appeal[/b:6a63f412b4].

In fact I thought that was the whole point of the changes following all the hoop-la with the tribunal of commisissioners.

Only reason I ask is that an external trainer (well respected) is trying to convince staff that there is no right of appeal against one or possibly both those decisions.

I think they are possibly confusing the info about termination following suspension from Circ A2-2006.

[Anonymous]

I agree with Peter, I think they have got that wrong.

Having said that, the changes to the Regs could have been a lot clearer. The Schedule to the D&A Regs was amended in December 2004 to preserve a right of appeal against all decisions made under any part of what was then HB Reg 72 (now 83): prior to that a right of appeal was only preserved against selected paragraphs of that Reg concerned with effective dates.

At the same time, the paragraph in what was then Reg 76 (now 89) that absolved the Council of its duty to make a decision on a defective claim was revoked after the Tribunal of Commissioners found it to be ultra vires.

But it was left to implication and inference that there is such a thing as a defective claim decision under Reg 83 – there is no provision that calls for the Council to make an express decision of that kind. It doesn’t say you don’t have to make the decision, so presumably by default you do have to make it. That’s about all we have got. Assuming that such a decision exists, the Schedule to the D&A Regs does not exclude it from the right of appeal, therefore it attracts a right of appeal.

In accordance with the Commissioners’ decision (made before the Regs were amended in December 04), adverse inference was the recommended way of dealing with cases like that. The Council was free, having tried its best to get the claimant to provide evidence of something, to assume the worst and deal with the case as if the issue was known but to the claimant’s maximum disadvantage. Usually this will mean the claimant does not qualify. The Commissioners made it clear that a substantive entitlement decision was being made about income, family, rent or whatever – and it carried a right of appeal. That is all still true and good law, except that the Dec 04 amendments were supposed to make the “adverse inference” mechanism unnecessary.

My feeling is that there are still many situations where you cannot make a defective claim decision but you can rely on an adverse inference: for example, where the claimant has filled the form in properly and provided the evidence asked for on the form, but then fails to respond adequately to a follow-up enquiry (this will arise often with tenancies between relatives or self-employed earnings). These are not defective claims, but you can assume the worst about the tenancy or income and decide the case accordingly. There is a right of appeal.

I can see how there is some uncertainty about the right of appeal against a defective claim decision, in the sense that it is hard to put your finger on the actual decision; but if there is a decision under Reg 83 it carries a right of appeal.

I can see no uncertainty at all about adverse inference: it most definitely carries a right of appeal.

[junderwo]

Further question.

You notify the claimant that a claim is defective because they have not supplied the information to make the claim effective within 1 calendar month of the request. If the information is supplied during the following month does this mean you revise your decision and pay Benefit from the date of the claim in accordance with Reg 4(1)(b) DAR.

Nothing I’ve read seems to back this view up but surely the decision to class the claim as defective was made in ignorance of some material fact

OR

Is the thought process:
1. Your decision to class a claim as defective is based on the fact the claimant did not supply the information within 1 calendar month.
2. The subsequent supply of the information does not change the fact it was not supplied within 1 calendar month.
3. The claimant’s only recourse is to appeal/request a revision within 1 month and persuade the Council that it is reasonable to extend the original 1 calendar month allowed in which to supply the information.

[jmembery]

The 2nd is the correct option, but I would suggest that Councils should be very open to being persuaded to revise their decision. Especially where the claimant provides the information shortly after the time limit expires.

[Anonymous]

Thanks Peter B. That’s very reassuring.

Thanks also to the two Js. Agree that junder’s question is valid, and that jmem’s answer matches what we would do.

So – normality restored. Phew.

[chrisb]

So – if you are writing a statement of reasons, and want to tell someine exactly why their claim is defective, what law would you quote?

Do you choose HBR83 – which doesn’t explicitly state what you should do if someone doesn’t rectify a defective claim, but only states what to do if they do?

Or is the decision being made under Section 1(1) of the SSAdminAct – [quote:1b8027a706](1) Except in such cases as may be prescribed, and subject to the following provisions of this section and to section 3 below, no person shall be entitled to any benefit unless, in addition to any other conditions relating to that benefit being satisfied-
(a) he makes a claim for it in the manner, and within the time, prescribed in relation to that benefit by regulations under this Part of this Act; or
(b) he is treated by virtue of such regulations as making a claim for it.
[/quote:1b8027a706]

Or is there something else that I’m missing?

And if it’s under the Admin Act, is it still appealable?

[Kevin D]

Working backwards….(well, it somehow seems appropriate for benefits….) 😈

Based on the wording of the SSAA (as quoted above), any decision would be with reference to the regulations, not the act. The reasoning is that the act refers to provisions [b:a96d53a5d0]prescribed…..by regulations[/b:a96d53a5d0].

As to dealing with requests for an SOR / dispute etc, I’d quote [b:a96d53a5d0]HBR 83(1) & HBR 83(6)[/b:a96d53a5d0], with an explanation that as the clmt hasn’t satisfied those requirements, he is not entitled to HB/CTB. In support of that logic leap, I’d rely on [b:a96d53a5d0]HBR 89(1)&(2)[/b:a96d53a5d0] [para 2 is abysmally worded for it’s intended purpose] and, as a final belt ‘n braces, [b:a96d53a5d0]R(H) 3/05[/b:a96d53a5d0]. Where evidence is at issue, in addition to a form not being properly completed, I’d also quote [b:a96d53a5d0]HBR 86(1)[/b:a96d53a5d0].

The commentary to HBR 89(2) in Findlay et al is very helpful.

Regards

[Author]

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