Terms & Conditions

[petedavies]

I am just in the process of revising a decision on the grounds that it arose from an official error and that no reasonable person would have made that decision. In fact, it falls so far outside the bounds of common sense that no reasonable 8-year-old would have come to the same conclusion.

The decision was, on the face of it, properly made-all relevant matters considered etc. However, it is so far off base that I am going to make the resulting OP recoverable even though it is clear the DM considered everything in the process.

Problem is I cannot come up with suitably diplomatic wording – anyone got any suggestions?

[jmembery]

Might one ask what the decision actually was, and on what evidence it was based?

[petedavies]

Claimant has had no income for over a year.

When I say no income I mean just that, not even in kind (in form of food etc etc etc), donations from charity/friends etc etc etc. Has not eaten for a year etc etc etc.

On edit: No, it’s better than that, the claimant has a negative income!

[jmembery]

If the claimant is a pensioner it is possible they have “income” in the general use of the word, but just nothing covered by Reg 19.

However, it appears clear from your posting that we are talking about someone with no apparent means of support and sustenance. Before you can really do anything else you need to write to the claimant asking how they are supporting themselves. Then, if they don’t respond, you can either draw an adverse inference or suspend then terminate.

Unless you have already done that then I am not certain you are in a position to revise for official error, what will your revision be? What income have you evidence that they have?

[petedavies]

Maybe did not make it clear on my original post – I am revising because the decision was unreasonable in the Wedensbury sense based on the information available at the time of the decision.

There really is no doubt in this matter.

As an aside and to make matters worse, claimant has spent years (going back to rate rebate days!) swamping us with complaints about the competence of staff who have been making zero awards under exactly the same circumstances.

[Andy Simpson]

Now don’t hit me, but can you revise a decision if no new info has been received? I think there might be a Comm’s decision to say that we can’t just change our minds and reverse a decision unless there has been a mistake in law/fact or new info has come to light.

I agree that I wouldn’t have paid based on those facts but I’m not sure that an error has been made. In which case I’m not sure you can revise.

Hope I’m wrong!

[petedavies]

Normally yes I’d agree with you but if a decision is so unreasonable that no one would have made it then you can still revise (CDLA/393/2006).

Must admit I’ve never had to do one of these before and I hope I don’t have to do it again.

[jmembery]

I don’t have any issue with you revising an unreasonable decision. I agree that it can be done under the circumstances.

The problem as I see it is that you are going to revise the decision that the claimant has no income, fine so far, but when you revise it, what income are you going to use?

Did the claimant respond to your requests for information on their income? If they did then, even if you don’t believe them, I can’t see that you can claim adverse inference.

If you are going to use an income then you need to have some evidence to support your decision. It is possible for people to survive on no income. We had one claimant who ate from supermarket dustbins when they binned out of date food.

[petedavies]

Spoilt for choice really.

The decision itself was a revision of a decision refusing benefit ‘cos there was not enough info to make a decision because the claimant continually asserted a complete and total lack of funds.

Utilities have been paid, couple of £K CTax has been paid and he was working (self-employed) 3 days per week. There are a few other gems as well but you get the picture and short of being lit up in neon I can see no way of it having been made more obvious.

Under the circs I am pretty confident with an adverse inference.

My problem is I still cannot come up with a form of wording that does not shout out the decision was made by an idiot.

The claimant is one of those who appeals, goes to members, the ombudsman etc etc etc with monotonous regularity. I really don’t want to give any credence to his mountain of assertions that all of his claims have been dealt with incompetently.

Tempted to go for the unsubtle approach and invite the AO in question to give oral evidence during the (inevitable) appeal 😈 but (aside from making me feel better) it don’t really do too much for the L.A.

[Andy Thurman]

Hi,
Much as I sympathise, as (let me phrase this carefully) serial appellant/complainants are often those hiding something, I’m afraid I would agree with the previous comments that a revision without any evidence will leave you in a very awkward position.

You say clmt was doing S/E work 3 days a week – did this come to light since the decision and have they been asked and/or provided evidence of their (lack of) income from this work?

Payment of utilities/ctax may suggest income but prove nothing.

Would a fraud investigation help? As in, “this is what clmt has declared, these are my grounds for concern, please make enquiries”. Suspend the benefit and keep your fingers crossed for a result.

Otherwise, I’d agree with JMembery’s initial advice.

NB Could be worded “As part of our routine checking and quaility assurance processes, I have looked again at your award and have decided that we must now request further information regarding your income….” i.e. implication an error has been made but that, as an organisation, you are acting competently.

[Anonymous]

[quote:d5474a7e19]My problem is I still cannot come up with a form of wording that does not shout out the decision was made by an idiot.[/quote:d5474a7e19]

How about “the decision was made by an idiot”.

OK so that may not help much but something along the lines of the fact that the original decision was incorrect and cannot be defended, however even though a decision was made, wrong though it may be, the test is that could a person reasonably be expected to realise that there was an overpayment and in these circumstances…..

Sometimes it is better to draw their fire and admit the mistake and then swiflty move on to the resolution.

[jmembery]

I always like “not consistent” in situations like this.

I.E the claimant is not telling a lie, his memory of events is “not consistent” with our records etc.

In this case the revision decision was “not consistent” with the information held on this claim.

[Anonymous]

Or paraphrase that genius British diplomat: “We are seriously unrelaxed in regard to the integrity of the authority’s decision of…”

[Clive Hayward]

“Without prejudice to any other decisions or actions of the Authority with which you may be dissatisfied, I have reconsidered our decision of (date) and it is clear to me that revision of that decision is necessary because it contained a serious error as to a material fact. It is clear to me that your income was not nil. I am satisifed that it is reasonable to infer that your income was in fact too high to qualify for any benefit. Accordingly, and with deep regret, I have to inform you that……..

I am sorry to have to send what will, I know, be a disappointing decision. I am sure however that you will agree that it is important to make the correct decision based on the evidence”.

Followed by his appeal rights?

(MY TONGUE IS SLIGHTLY IN MY CHEEK AT THIS POINT, BUT I DO QUITE OFTEN USE THE “I’M SORRY TO HAVE TO SEND A DISAPPOINTING REPLY” LINE. SOMETIMES (BUT NOT ALWAYS!!) I REALLY MEAN IT TOO).

Merry Christmas everyone.

[petedavies]

Clive,

Thanks for that, cannot pretend to like it as much as Phil or Andy_I’s but it does fit the bill perfectly (other than the deep regret bit!).

All others: I know you have doubts about the strength of the evidence but I promise you there is no doubt. My first thought (until I went back over the historic file) was that the claimant was a reporter looking to expose L.A. inefficiency. I still cannot believe that what was submitted was a serious attempt to claim benefit and suspect the claimant was as surprised as I was shocked by the fact that an award had been made.

[Author]

Posts