Terms & Conditions

[martin walmsley]

Good afternoon all.

A quick question – hopefully one of you will be able to tell me where to look, as I’ve spent the last hour looking through Circulars & Bulletins with no luck!

Further to U9/2004 and then SI 3368/2004 – I seem to recall there being some further guidance about the changes to the rules re defective claims, which dealt with whether or not LAs had to look at claims retrospectively (i.e. before the Regs changed).

Can anyone help, please?

Many thanks,
Martin.

[admin]

Martin, have you tried the ALG’s website – ref. the section on “Deciding Claims” – http://www.alg.gov.uk/cat.asp?cat=2299

Mark

[martin walmsley]

Thanks Mark – have checked that already, and couldn’t see anything about how we should treat claims prior to the Regs change.

It’s frustrating me as I’m 99.9999% sure I’ve seen something!!

Martin.

[aosulliv]

As Reg 76 has been confirmed as ultra vires, the decision re defective claims is retrospective.

The way to view it is if an enquiry arises regarding an claim that was deemed defective under the old way of things, that you review the circumstances and if necessary give a fresh decision with appeal rights.

[martin walmsley]

Thanks aosulliv – this was one avenue of thought we had considered, and I suppose it does sound fair. Do you know if this was backed up in any circular/bulletin?

Martin.

[aosulliv]

It hasn’t been backed up bu any bulletin / circular that I am aware of, but due to the fact that it is a retrospective decision that should be clarification of the fact (I am willing to corrected on this)

[martin walmsley]

We’ve just been having a further look at this…

Regulation 18(3) of the Child Support Pensions & Social Security Act 2000 indicates LAs do not have to go back on such cases (also see analysis of this Reg on Page 168 of CPAGs 2005-06).

Well this is how I read it anyway…thoughts welcome, please?

Thanks,
Martin.

[Kevin D]

There is a CD (no time to track it for now) where it was pointed out that the “anti-test” rules do not apply in respect of the “old” ultr-vires HBR 76.

This is because that Reg never, in law, existed. Therefore, any claim which was left in limbo is still a live claim on which a decision can (&, technically, should) be made.

In reality, LAs won’t go back and check for such cases, but they will be legally required to make a decision on them if they ever come to light.

Regards

[gerryg]

Kevin, you might have been thinking of this quote from CH/2768/2005

[quote:c24019ffb2]22. When Mr Lloyd-Davies granted leave to appeal, he briefly put the points set out at paragraph 19 above to the parties and directed submissions on them. Hounslow replied as follows:

“3. The authority submits –
(a) The [cut-off letter] was made on 07/01/2004.
(b) The Commissioner’s decision R(H) 3/05 was made on 09/09/2004.
(c) Regulation 76(2) of the Housing Benefit Regulations was revoked by SI 2004/3368 with effect from 21/12/2004

It is hence submitted that, at that time, the response made on 07/01/2004 was lawful and valid.”

23. That submission represents a fundamental misunderstanding of:
(a) (in general terms) the nature of judicial decisions and of what it means to hold that the act of a public authority (such as a regulation) is ultra vires; and
(b) (more particularly) of what was decided in R(H)3/05.

24. To correct that misunderstanding, the starting point must be to explain that when judges, including social security commissioners, give rulings on points of law, they are declaring the effect that the law has always had since it was introduced and not merely giving directions as to how that law should be interpreted in the future. When a judge holds that a regulation is ultra vires he or she is saying that there was no legal power to make that regulation and that therefore it has no legal effect. And as it has no legal effect, it does not matter when—or if—it is subsequently revoked.

25. By holding that regulation 76(2) of the Housing Benefit Regulations was ultra vires, the tribunal of commissioners in R(H) 3/05 decided that the Secretary of State never had any power to make a regulation in those terms. Therefore:

(a) that regulation was not valid on 1 April 1988 (when the Housing Benefit Regulations first came into force);
(b) it was not valid on 7 January 2004 when Hounslow sent the cut-off letter to the appellant;
(c) it was not valid on 9 September 2004 when the Tribunal of Commissioners gave the decision in R(H) 3/05; and
(d) it was not valid on 20 December 2004, the day before it was replaced by a different regulation 76 under regulation 4(3) of the Social Security, Child Support and Tax Credits (Decisions and Appeals) Amendment Regulations 2004.

In short, the former regulation 76(2) was never valid.
[/quote:c24019ffb2]

[Anonymous]

…. which is why there is an anti-test case rule!!!! Doh!

There is another reason why the anti-test case rule might not apply to this particular kind of defective claim decision though. Bit busy just now, but I’ll post details later if I get a chance

[Anonymous]

OK, here’s the longer answer.

Deputy Commissioner Poynter’s comments quoted above do not say that the anti-test case rule doesn’t apply to defective claim decisions. He is talking in general terms about the effect of case law: it does indeed pronounce on how the law should always have been interpreted. That is precisely why there is an anti-test case rule, which the Deputy Commissioner doesn’t mention at all (because Hounslow didn’t, and he was dealing with Hounslow’s submission). Without an anti-test case rule, every claimant who had ever been on the receiving end of a decision taken under a now discredited “old” interpretation could come forward and demand arrears. Parliament has decided they cannot do that except in previously flagged “look-alike” cases.

But defective claims do present a special difficulty. Paragraph 18 of the Schedule requires the Council to make a decision in the old way as regards any period of entitlement falling before the date when the new case law was issued … but the trouble is, the “old” way of dealing with defective claims did not involve making a decision at all! So it is very difficult to apply para 18 in any coherent way to defective claim cases and the best thing to do might be to give up and make fresh first-instance decisions on such cases as and when they come to light, including new appeal rights.

[Kevin D]

Gerry: yes, that was the one – thanks. And, as ever, Peter has properly clarified my earlier post pretty succinctly.

Regards

[Author]

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