Terms & Conditions

[lhudso]

Hi, need some advise please.
Have attended two tribunal hearings. Decision of LA was that customer failed to provide sufficient evidence of earned income and capital. Although fraud not proven, there was sufficient evidence to suggest that customer was more than just an employee and also after the sale of 2 properties, approx £22,000.00 of the capital was unaccounted. The LA made an inference and Tribunal hearing found in favour of LA decision.

I/S has now been put into payment. I am currently furnishing DWP with docs. However, if DWP decide to allow I/S entitlement are LA able to overide this decision and refuse CTB based on evidence we hold?

[Anonymous]

The old Hamilton/Menear dilemma again.

On the face of it, the IS award binds you because of the way the CTB disregard schedules are structured: whatever income and capital you think the claimant might have, it is disregarded in a case where he is on IS. That was the point made in the Menear case almost 20 years ago – an IS award puts all income and capital out of reach in CTB.

But a few years later came the case of Hamilton. This was a case very much like yours where the Council was suspicious that the claimant had some kind of business. It dragged on and on for years, and by the time the case came to court there was absolutely no prospect of getting DWP to investigate and rescind their IS award for the period in question. But the court decided that the Council could go behind the IS award if it was satisfied that IS was claimed “unlawfully”, which the court went on top define as fraudulently.

You are going to present your evidence to DWP, and they will consider it. If they agree with your findings, fine, but if they don’t you have to choose which of the above cases is more relevant to the facts of your claim . My personal view is that Hamilton is ideally suited to issues in the past where it is difficult to get DWP to investigate (often the evidence no longer exists), and I would be much more hesitant about relying on Hamilton as grounds for disagreeing with the DWP on the merits of an issue they know about. If DWP sees your evidence but decides it doesn’t really stack up and they reaffirm the IS award, I think Menear prevails and you are stuck with that.

[Anonymous]

You could try using the following:

The legal position is best summed up in para 27 in R v South Ribble BC ex p HAMILTON (2000) Indep CA:

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27. Having considered these submissions and the authorities, my conclusion is as follows. There are two reasons why this appeal should fail. First, it accords both with commonsense and the intention and structure of the legislation, that where, as here, entitlement to housing benefit is dependent on receipt of income support, that income support must have been lawfully obtained; that is, lawfully in the sense of neither by fraud, nor dishonestly. Secondly, the principle apparent from cases such as Shah dictates that legislation should not be so construed as to enable a man to profit from his own fraud. I would therefore dismiss the appeal.
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[Author]

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