Legal Challenge to a break in claim

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Viewing 15 posts - 1 through 15 (of 38 total)
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  • #34397
    jamcon
    Participant

    Have a look at this posting on Rightsnet:-

    http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=102&topic_id=7391&mesg_id=7391&page=

    We should have an answer sooner than we probably expected.

    #96676
    Anonymous
    Guest

    I thought that this would happen sooner rather than later 🙄

    #96677
    jamcon
    Participant

    I wonder if this will be the first JR case transferred to the new Upper Tribunal for consideration? It would make sense if it was.

    #96678
    Anonymous
    Guest

    True – I gather from a previous post by Peter Barker that the Cmmrs are distinctly under-impressed by the wording of the LHA legislation.

    #96679
    Anonymous
    Guest

    Arelated query, and apologies if it has been raised before.

    According to HBSD at DWP, a claimant can withdraw an existing HB/CTB claim and have their partner submit a fresh claim to obtain the better buy where the latter has a disability component in ESA without a week’s gap.

    Could a couple get round the week’s break in claim in moving from old style HB to LHA by simply having the partner put in the new LHA claim?

    #96680
    jmembery
    Participant

    Yes they could.

    #96681
    Anonymous
    Guest

    Would that open up a discrimimation argument – that couples are treated more favourably than single claimants?

    #96682
    jmembery
    Participant

    There are many parts of the law where couples are treated more or less favourably than single people. Applicable amounts for example.

    #96683
    Anonymous
    Guest

    I tend to agree with you ,J, that what applies in the ESA scenario (where a partner can relinquish HB/CTB and have their partner immediately put in a new claim without a week’s break) must also surely apply for LHA.Would be interested to hear if any LAs have gone down this road.
    In the meantime, if the appeal by Paul Stagg is successful will every LA have to go back and award the missing week? If so then LAs better start identifying and keeping a note of all breaks in claim with a gap of a week.

    #96684
    Anonymous
    Guest

    [quote:f1d2b0419c]if the appeal by Paul Stagg is successful will every LA have to go back and award the missing week? If so then LAs better start identifying and keeping a note of all breaks in claim with a gap of a week.[/quote:f1d2b0419c]
    What if the claimant has clearly stated that they do not wish to claim benefit for that week? This would more likely be a case where compensation may have to be awarded based on incorrect advice being given…

    #96685
    Anonymous
    Guest

    [quote:9bea9fb115]There are many parts of the law where couples are treated more or less favourably than single people. Applicable amounts for example.[/quote:9bea9fb115]
    I think applicable amounts are justifiable, given that the assessment of needs has to take account of the number of people in a family unit. The requirement for single claimants to take a weeks break is an administrative hurdle that couples do not face. Where is the justification in saying that only couples can receive LHA without having to pay a penalty?

    #96686
    Anonymous
    Guest

    [quote:887a92bb33]if the appeal by Paul Stagg is successful will every LA have to go back and award the missing week? [/quote:887a92bb33]

    Retrospective application of any outcome is an interesting one. My first thought was that the anti-test case rules in paras 16 and 18 of Sched 7 to the 2000 Act would apply, so that only “look-alike” cases identifed and flagged in advance of the hearing could be revisited (and even then, the “look-alike” rule only seems to kick in if there is an appeal from the High Court to the Court of Appeal). So basically – no, LAs will not have to go back and close up all thoise one-week gaps they have created up to now.

    But that might not be the case – it depends on the outcome of the jurisdiction/strike-out matter. The anti-test case rule only affects “relevant decisions” by the Council – it does not affect other actions by the Council. I wonder, does Hackney argue (and did the Tribuinal agree) that the issue of a one-week gap does not involve a relevant decision by the Council, hence the Tribunal had no jurisdiction to hear it? Was that the argument?

    I must say I am surprised the appeal was struck out as OOJ. It looks to me as if there is a dispute as to whether a superseding decision should have been made, or there is a dispute about the start date of a new award. Either way, looks like a decision of the LA to me. In particular, refusal to supersede is generally regarded as a decision under para 4 of Schedule7 to the CSP&SS Act 2000 (following the reasoning in [i:887a92bb33]Wood[/i:887a92bb33])

    Anyone from Hackney prepared to comment on the jurisdiction argument?

    #96687
    Julian Hobson
    Participant

    I am about to put these very points to DWP. I will keep you posted.

    In summary we have decided (but not yet promoted) that the withdrawal and reclaim is available to everyone regardless of whether they are single or couples. Part of that justification is the ESA advice the other part being our refusal to accept that we MUST revise our decision to end entitlement if someone makes a new claim without a break.

    I would also like to forward the stuff I send to DWP to Paul Stagg as it might be useful in his case. Anyone care to PM me his Email address ?

    #96688
    Julian Hobson
    Participant

    thank you, you know who you are !

    #96689
    Kevin D
    Participant

    Isn’t this challenge a damning indictment of the DWP’s failure to listen (properly) to concerns expressed by many many administrators that, by failing to make the legislation clear, it would lead to tears? And, probably, very expensive tears. This and other issues were raised at the HBinfo conference in Sept 2007 and the DWP cast it aside saying it wouldn’t be a problem and, if it was, the law would be amended (it hasn’t been). Brick walls are easier to talk to. All the time / resources etc that are being put into this are entirely the fault of, yet again, rubbish drafting of relevant law. Perhaps all the related costs should come out the pockets of the individuals “responsible” for such a wholly unnecessary situation…..

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