Meaning of ‘official error’ for anytime revisions

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  • #31849
    Anonymous
    Guest

    We have a conundrum….

    An eldery claimant on Guaranteed Credit telephoned us in January 2008, to say she had received a £62k inheritence. The note on our system says she was “advised to confirm in writing”.

    Shortly afterwards, we received her letter saying “I will no longer require Housing of Council Tax Benefit, as I have received an inheritance and no longer qualify for assistance”.

    We then cancelled her claim (incorrectly, as the capital limit doesn’t apply to GC).

    Her grandaughter has now contacted us, saying she has found out we were wrong, and she wants us to pay HB & CTB back to January 2008.

    Can we go back on this as an ‘anytime revision’ because the decision arose from an official error?

    My concern that we can’t is because the mother’s letter told us she didn’t want benefit anymore, and we technically cancelled it for that reason. Therefore, could it be argued (and I am thinking by an auditor here, if we pay a great big underpayment), that we should not go back, because the actual decision was not because of official error, but a decision based on a request for her benefit to stop?

    Does that logic make any sense, or should we just pay it (I would quite like to)?

    Many thanks

    #89066
    Kevin D
    Participant

    Much depends on the content of the phone call.

    If the letter sent by the claimant was as a result of advice / information given by the LA during the prior phone call, the letter was a result of an error. In that situation, I think it can be properly argued the decision did, ultimately, arise from an official error.

    However, if the phone call went along the lines of:

    Clmt: I want to end my benefit.
    LA: Confirm it in writing.

    …and no detail was discussed, such as the amount of capital / whether PC was ending etc, that makes it a whole lot trickier. Some will doubtless argue the LA should have probed further in the phone call; others will argue that if a claimant simply says “End my benefit”, LAs are under no obligation to ask further questions and there is no error in such an approach.

    #89067
    Anonymous
    Guest

    I think this needs to be put into context. This old lady may have for many years been told that she must report changes in her circumstances, and that savings of over £16,000 will disqualify her from receiving HB.

    She may also have been told that she could be in serious trouble if she continues to claim benefit when she has large amounts of savings.

    As it happens, with pension guarentee credit, there is an assessed income period and large changes in savings will be ignored during that period. It is also the case that many chages in circumstances during the AIP, including the acquisition of large amounts of capital do not have to be reported to the Council when the person is getting guarentee credit. The advice to confirm the change in writing was therefore in my view an official error, simply because there was no change that had to be notified.

    “Cancellation” for whatever reason can still only come about by supersession, and the provisions for supersession are written to an extent in the language of discretion ” The appropriate authority may supersede…. ” [HB/CTB (D&A) Reg 7(2)]. In this case it seems to me that the LA did not consider that there was any discretion involved when it received the old lady’s letter and in my view that was an official error. Mr Commissioner Jacobs considered the issue of discretion in a different context at paragraph 29 of CH/1229/2002:

    “The tribunal can only have considered regulation 7 on its own initiative under paragraph 6(9)(a). That required the exercise of discretion. The tribunal did not consider the discretion. Indeed, the way the statement is worded suggests that the tribunal did not consider that an exercise of discretion was necessary. That means it assumed jurisdiction without considering judicially whether or not to deal with the issue. That was wrong in law”

    There is nothing to suggest that the Commissioner was not setting out a general principle here , and was confining the issue to Reg 7

    I also think that the Council also misinterpreted the effect of CJSA/3979/2009 in that it seems to have taken that decision as authority that an award MUST be terminated when the claimant asks for it. I think that all the Commissioner held was that such a request is to be taken as a change of circumstances which will be the ground to supersede. It will be for the authority in the first instance to decide what the outcome superseding decision will be, subject to the normal rights of appeal.

    The Council got the law wrong. This is an official error that is in my view grounds to reinstate thie old lady’s benefit. It is also clear to me that her request to end her award is not sufficiently clear and unambiguous in the circumstances for the Council to act in the way it did, particularly as she said she no longer wanted benefit because she believed she no longer qualified for it. The Council ought to have informed her that she did still qualify.

    The Council’s failure to inform the claimant of the true legal position was in my view another official error, because there is an implied duty on the LA to do so.

    The implied duties of LA’s were affirmed in the context of giving proper advice re applying for a national insurance number by Mr Commissioner Rowland at paragraph 23 of CH/4085/2007, and by Judge Burns QC in CH/2452/2009 at paragraph 22. I see no reason why the principle should not apply equally to claimants who report changes in their circumstances

    #89068
    Anonymous
    Guest

    Thank you both for your comments.

    I think you have both satisfied me we are legally correct to revise our decision (i.e. reinstate the benefit from when it stopped).

    Stainsby – if the auditors question it I will get them to read your above post 😀

    #89069
    Anonymous
    Guest

    Well if you may be going to use my post to argue with your auditors, I have edited it to add an authority to suport the argument re discretion (CH/1229/2002 Mr Commisioner Jacobs)

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