Terms & Conditions

[petedavies]

9 August 2004 – decided a claimant had been overpaid CTB.
Claimant appeals in time.

A few days later benefit is (incorrectly) awarded in respect of the latter part of the overpayment period and the appeal lapses.

A week later the error is identified and the incorrect decision revised. The Excess CTB period is only for the latter part of the original period.
Claimant appeals in time.

Problem is nobody told the claimant that his original appeal had lapsed & he assumed that it was still “live”. It is now over 13 months since any of the decisions were made.

As far as I am aware there is no requirement for the LA to notify the claimant of the fact that his appeal has lapsed. He is now, through no fault of his own, in a situation where (I think) he only has a valid appeal against the latter period of the overpayment.

First thought is to write the OP off because he has been denied an inependent hearing but…

1) Can you deny somebody a hearing by not doing something you are not required to do in the first place?

2) I’m as certain as I can be that a Tribunal would confirm the decision and suspect that the claimant acted with knowledge so am reluctant to go down the “write-off” route but am also uncomfortable with the idea of him not being able to appeal it.

3) Practical answer is probably to go with the Tribunal’s decision on the latter part of the OP but as the circs are different, this is not a great option either.

Any ideas?

[Anonymous]

Was the original appeal against the substantive CTB entitlement decisions, or against the excess benefit decision?

If the appeal was against the excess benefit decision (which sounds right) that decision has been revised once in the claimant’s favour (appeal lapses, no further appeal) and then revised again to restrore it to the original amount – and there is now a new appeal against that new excess benefit decision. The excess benefit decision is a single decision incorporating more than one substantive CTB entitlement decision, so the second appeal is good for the whole period in my view.

On the other hand, if the appeal was against the substantive CTB decisions for the period in question, surely the first appeal against the CTB award for the earlier period is still outstanding because that awarding decision has not been revised (it might have been superseded when you accidentally credited CTB, or it might previously have been superseded and you revised an earlier superseding decision when you wrongly credited CTB – but either way the CTB entitlement decision for the earlier period remains untouched with a valid appeal outstanding). If this is the case, then there are two appeals against successive CTB entitlement decisions to be considered.

All in all, I think the adjudication history is at a stage where the claimant still has valid appeal(s) against the whole issue

[petedavies]

Peter,

Thanks for that, you are correct the appeal is against the OP.

I’m not convinced by your argument. Just because the decisions are for consecutive periods of time I do not think they could be considered subject to a single decision without some form of set aside being available but still…

… I posted too early & missed the obvious but. This appeal has lapsed as well.
Overpayment, claimant appeals, revised in favour, revised back again

Clearly official error, reasonable expectation of knowledge? Cannot quite see it somehow!

[Anonymous]

I am not sure why the second appeal would also have lapsed?

An appeal lapses if the decision under appeal is revised in the appellant’s favour, and they have fresh appeal rights against the revised decision. As far as I can see from the events you describe, what has happened here is:

– you originally made an excess benefit decision covering a period from date 1 to date 3. The reason for this excess benefit decision was that you had revised and/or superseded at least one substantive CTB decision covering that period so as to reduce/remove CTB entitlement.

– the claimant appealed against this single excess benefit decision.

– you then revised the excess benefit decision to the claimant’s advantage by deciding (wrongly as it turned out) that there was entitlement to CTB after all for the latter part of the excess benefit period from date 2 to date 3. At this point, the excess benefit appeal lapsed – the claimant could have made a fresh appeal against the reduced excess benefit decision but he didn’t.

– you then realised that you should not in fact have revised the excess benefit decision to the claimant’s advantage, because he was not entitled to CTB for the latter part of the period. You now revised the decision to award CTB for that period and, as a consequence, increased the amount of excess benefit once more.

– The claimant appealed. The crucial question is: was he appealing against the excess benefit decision for the whole period as revised for the second time; or he was appealing against a completely new excess benefit decision for the later period only? My feeling is that you have restored the excess benefit to its original position – this must surely be a further revision of the amount overpaid. It seems to me that if the effect of awarding benefit between dates 2 and 3 was to revise the overpayment as it related to the period between dates 1 and 2, then the reverse action in respect of dates 2 to 3 must have the reverse effect in respect of dates 1 to 2. It seems perverse to say that allowing CTB for the period after date 2 acted to revise the excess benefit for the whole period, but that revising the CTB award for the period after date 2 did not act to revise the excess benefit for the whole period. can’t have it both ways: either there is a single excess benefit period or there are two, but you have got to be consistent. If there is a single excess benefit period, appeal 2 covers it all; if there are separate excess benefit periods appeal 1 is still good (I favour the single period argument).

– This second appeal has not lapsed so far as I can tell. This is because you have not revised it in the claimant’s favour

So I still think there is an outstanding appeal against the whole overpayment, but even if I am wrong about that I think the only logical alternative conclusion is that there are two outstanding appeals – one against each part of the overpayment.

[petedavies]

Sorry-I was not specific.

Friday afternoon & demob happy.

The second appeal has not lapsed yet but must be revised in favour – an award was made, on the face of it, as a result of his first appeal. The OP should not have been made recoverable in the first (sorry, second!) place, the implication being the claimant had a better knowledge of the Regs than the DM.

The second appeal is clearly against the second decision. The first decision has not been mentioned – even obliquely. It is limited to the recoverability of the subject overpayment only.

I’m still not convinced by the single period argument. The decisions are seperate legal entities. Having had a chance to think over the w/end I may have over complicated it. I can think of no reason not to ask him to clarify his intent under DMA20(5) before making a decision on it. Surely this would put the validity of the appeal against the first decision beyond doubt? – or am I missing something?

[Anonymous]

Pete,

Why not be pragmatic, and refer both decisions to TAS, as the first decision is clearly a matter raised by the appeal, and so the Tribunal can consider it, as per para 6 (9) of CSPSSA 2000?

[petedavies]

First appeal (or rather first OP) I am going to refer in some shape or form. I want to refer it in a way which will minimise the chances of TAS refusing to consider it – it is not down to the claimant that he has no valid appeal (If my interpretation is correct).

Second OP I think has to be a revision in favour. Claimant appeals. Facts on the decision letter are correct but the decision is wrong although only someone with a knowledge of the Regs would know.

I don’t really want to refer both decisions to TAS, the only way to buttress the decision in respect of the second overpayment would be to argue the claimant could reasonably be expected to know the Regs better than the Decision Maker. That has a bit of amusement value I guess but…

My main problem is that the second appeal is very clear – it only refers to the second OP decision.

[Anonymous]

Pete, whilst the 2nd appeal might well be very clear, TAS has jurisdiction to look at the original decision… You might find CH/3009/2002 helpful, (it also referrs to R(IB) 2/04 which is also very helpful…). Both are available on the osscsc website… The following is from CH/3009…

“[i:392dff9970]As all parties accepted, that includes considering in appropriate cases whether a claim should be considered as a request for revision or supersession of a decision on a previous claim, subject to time limits and other specific statutory provisions. If I may say so, the reasoning in cases such as R(I) 11/62 about claimants not being conversant with the niceties of the adjudication system now applies with considerably more force than even when those decisions were taken. The general limit to this, reflecting the comments of the Tribunal of Commissioners in CIB 4751 at paragraph 32, is that this must either be raised by the appeal or be a matter that, in its investigatory role, the tribunal acting judicially decides it should consider. [/i:392dff9970]”

[petedavies]

That’s great…many thanks.

[Author]

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