Terms & Conditions

[Anonymous]

Hi

Sorry my post is nothing to do with chickens or eggs however, it fits nicely with the time of year!!!!

I have just come back from an appeals hearing regarding a Living together case where both the IS and HB decisions were held at the same time. As is common practice in our area the presenting officer for the DWP did not turn up.

The representative wanted the IS decision to be made first and then for this to impact on the HB decision. I was a little concerned in this case as it was the HB department that had done all the investigating and passed their evidence to the DWP to make their decision.

I was lucky enough to be present at the IS hearing and allowed to add comments through out, even though I am not sure I should have been there.

My question is whilst the DWP were not present would it not have been best practice in this case for the HB appeal to have been scheduled first – due to the fact that I could put points across and answer queries from the judge and a fair hearing would have been given to the matter at hand.

Could somebody confirm what the correct procedure is in cases like this and should I have been allowed to make comments in the IS case?

Many Thanks

[Kevin D]

It doesn’t matter who investigates – all that matters are the facts, whoever obtains / establishes them.

In my view, the IS hearing must always be heard first where the issue is related to income or cap. Although, in reality, I can’t see that there would be any issue if the Tribunal heard BOTH hearings concurrently; especially where some of the facts overlap.

For example, what if the Trib decided that the clmt wasn’t living together? Of, even if LTAHAW, the clmt was still entitled to IS in any case? If there is still (lawful) IS entitlement, that is binding for HB/CTB.

Also, even if there is no IS, there could still be “standard” HB/CTB entitlement, but the LA would need to know, first, that there was no IS entitlement.

Hope the above helps.

[jowalraven]

We have had several of these cases recently and have arranged for them to be linked to the Income Support appeal. At the hearing, the Income Support part is looked at first. As Kevin rightly says, if the couple are found not LTAHAW, then that changes everything.

We had one HB/CTB appeal that wasn’t linked by accident recently. On the day of the hearing, the Tribunal Judge telephoned us and said that he would adjourn the hearing to allow for the Income Support appeal to be listed and dealt with first with the HB/CTB to be dealt with at the same session.

[peterdelamothe]

There is nothing at all stopping you from being there as a witness in an IS case. Remember the idea is that the Tribunal is not adversarial and your role is there as a “friend”.

EDIT https://hbinfo.org/comdecs/ch_3801_2008.doc is a recent case that considers the role of a LA submission / presenting Officer.

[jowalraven]

Can anyone give me advice on the following situation?

DWP have decided Living Together and therefore no Income Support entitlement, but our Decision Maker does not believe that the couple are Living Together and believes the claimant’s explanation? Can we go against the DWP decision???

[Kevin D]

[quote:c285978c4f]Can we go against the DWP decision???[/quote:c285978c4f]

Where the DWP has decided there is no entitlement to IS, any subsequent LA decision is entirely independent of the DWP. The LA makes its own enquiries, gathers its own information and evidence and makes its own decision.

In these circumstances, it’s not going “against” the DWP. It’s simply the LA making its own decision – exactly as the law requires.

In law, the DWP and the LA are entirely separate decision making bodies, so there is no conflict (in the circumstances set out above).

[Anonymous]

R(H) 9/04 was a case where exacty this happened. The DWP awarded JSA to a man and woman on the basis that they were a couple, but this did not prevent the Council from deciding that they were not a couple for HB purposes. The (then) Commissioner commented:

“… that is not a desirable state of affairs. However, it is an inevitable possibility unless provision is made to make one decision maker’s decision binding on the other decision maker. That could be done, but has not been done as regards relationship issues”

[jowalraven]

Thanks for the advice. I did suspect that was the case but it’s not an ideal situation where the DWP think one thing and we think another.

[michelle l]

I have a case where a joint investigation has found that a claimant got married a few years ago and IS has now been cancelled from the date of the marriage as husband was living with her. We have revised HB&CTB to nil, and created very large overpayments which are recoverable from claimant.
We have requested further info and offered underlying entitlement. However no further info or evidence provided, Claimant is adamant he has not been resident & marriage was a mistake. I am in process of preparing response and so are DWP in order that they can be heard together. From the report provided by DWP we fully agree with the decision, and o/p cannot be reduced as no further info provided. Is it sufficient for my response to say that we have no reason not to base our decision on DWP’s decision or do I also have to provide all evidence and prove on balance of probabilities that husband was resident, although the IS appeal will be heard first.

[Author]

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