Payment of benefit pending an appeal tribunal hearing

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  • #23166
    Anonymous
    Guest

    Bizarre as it sounds I have a claimant who has been given leave to apply for Judicial Review against our refusal to continue payment of HB following termination under DAR 14, pending outcome of her appeal. She has appealed to the Tribunal, lost that and is now on the way to appealing to the Commissioner. I have invited DWP to join in the case as it surely has national significance but whether they can, as it is the Council who is being challenged not the Secretary of State, or will want to is another matter. Has this happened to anyone else? I can’t think of any legislation we could pay under, even if we wanted to, other than the Council’s general power to assist the poor and needy of the parish. Which piece of legislation is that, by the way? It used to be (I think) s137 LGA 1972 but I might be wrong there as it is many years since I did my IRRV training.

    #11244
    Anonymous
    Guest

    Out of interest, what was her appeal about?

    #11245
    Anonymous
    Guest

    That [i:a152d51a37]was [/i:a152d51a37]her appeal – our termination of her benefit because she failed to supply information relating to her S/E activities. She claimed that we were in breach of her Human Rights, Data Protection legislation, FOI Act …… by demanding to see her bank statements and accounts relating to her business.

    (Incidentally, in view of other threads on this Board, Chairman was not troubled by the notion that there is no right of appeal against DAR 14 decision. Now that [i:a152d51a37]would [/i:a152d51a37]be a breach of her Human Rights)

    #11246
    petedavies
    Participant

    Must admit, I am having trouble seeing how she got permission (unless she’s a cleaner!).

    What were the grounds of her application, she must have specified some form of breach of (H.B.) statute by the L.A rather than TS?

    She is, in essence, stating that you should be making a payment without a decision and I cannot see how that has a “reasonable chance of success” -unless a new claim has been made since the Tribunal in which case she should be arguing for a PoA.

    Still, think how much easier life will be if she wins. Extrapolating on to all other parts of the calculation the new AF will go something like this:
    Q1 Who are you?
    Q2 How much benefit do you want?
    Q3 Please sign the above declaration?
    By the time it gets heard of course we will not need a signature either!

    #11247
    Kevin D
    Participant

    Chris,

    How on earth did she get leave for JR?!!

    Tracking back, for the Cmmr’s case, this may assist (on the offchance you don’t already have it):

    [b:5f4806d766]CH/4688/2003 (para 11)[/b:5f4806d766]
    new.hbinfo.org.com/comdecs/ch_4688_2003.doc

    In short, where a clmt fails to provide evidence, the test is not necessarily whether the clmt can provide it (although, that doesn’t seem at issue here), but whether the LA reasonably needs it in order to make a decision.

    Notably, the Cmmr observed that failure to provide evidence may result in reduced benefit. That is consistent with what subsequently happened in [b:5f4806d766]R(H) 03/05[/b:5f4806d766] (i.e. adverse inferences etc).

    Regards

    #11248
    Anonymous
    Guest

    Actually I think I’ve misled you all here. Her appeal to the Tribunal and Commissioner is based around termination under DAR 14. Her Judicial Review application is because we failed to continue paying her benefit while she was waiting for the determination of said appeal. She maintains that she is entitled to benefit as an “appellant” and it should not be withdrawn until the appeal has been decided (in her favour!).

    #11249
    aosulliv
    Participant

    If you reinstated said benefit then the TS would say that the decision has been revised and therefore the appeal lapses.

    That is the whole point of an appeals process.

    Or has she given an undertaking that she would repay every penny of an overpayment should her appeal / JR fail?

    #11250
    Anonymous
    Guest

    To add an even stranger twist to an already bizarre case – as I’ve told Chris – I was actually in court on work experience when this application for leave to JR Chichester DC was heard!

    Disclaimer – anything posted here is entirely from my rather hazy memory and is purely on what I remember hearing in court – so all public domain.

    I believe that the claimant’s argument was something along the lines of that although the Council *may* suspend under Reg 11 DAR 2001, this did not mean that they *had* to suspend.

    Leaving aside the fact that this submission entirely misses the point that her claim for HB has been terminated and no longer subsists, I believe the potentionally JR-able issue (this is now entirely my speculation) would be that Chichester had either

    a) failed to appreciate that they had a power to continue issuing payments pending the outcome of the appeal.
    b) reached a decision that no reasonable authority could have come to and/or
    c) failed to give reasons for their decision.

    Judicial review is a remedy that is concerned principally with the decision-making process of public authorities. If a judge is inclined to grant leave to apply for JR it will be likely to be because s/he considers that there is some flaw in the decision-making process.

    In general I would say that LAs can ensure that a decision is sound from a JR perspective by issuing a letter that sets out the Council’s decision and the legal basis of that decision and gives clear reasons for the decision.

    I think it would be fair to say that a judge hearing an application for leave for JR would not necessarily be an expert in the ins and outs of social security legislation and would therefore be looking at the evidence that has been submitted to him to determine whether on the face of it the LAs decision appears reasonable.

    I couldn’t understand why your claimant didn’t just submit a new application form and furnish the outstanding information – has it been pointed out to her that she could simply make a new claim?

    I also thought that the application had been adjourned to allow Chichester to issue a new decision – is that correct?

    #11251
    Anonymous
    Guest

    Surely the DWP will want in on this one? 😯

    #11252
    Anonymous
    Guest

    The claimant refuses to supply the information, therefore it is pointless her making a new application! Her claim is now terminated, as you say, but her argument is that we should not have terminated it (i.e. taken the final decision) pending resolution of her appeal. I guess we haven’t specifically addressed the issue of her entitlement to continuing benefit whilst she is an appellant but in a way our refusal to revise the decision to terminate the claim comes to the same thing – doesn’t it?

    #11253
    aosulliv
    Participant

    If her appeal was about the suspension of entitlement and not the cessation of entitlement then I would agree that the claim could remain suspended until a decision had been made

    #11254
    Anonymous
    Guest

    If she refuses to supply the info now, I wonder why she didn’t refuse when she first claimed???

    #11255
    Anonymous
    Guest

    Because she came off IS about a year or so ago and we’re asking her to produce full records relating to her S/E earnings since that time, having initiallty set her up on a projected earnings figure.

    #11256
    aosulliv
    Participant

    So she wants her ‘projected’ earnings used forever. If that is the case I am gonig S/E and earning a penny a week as a cab driver. Or is that cynical?

    #11257
    Anonymous
    Guest

    [quote:439d0caa76]I guess we haven’t specifically addressed the issue of her entitlement to continuing benefit whilst she is an appellant but in a way our refusal to revise the decision to terminate the claim comes to the same thing – doesn’t it?[/quote:439d0caa76]

    I agree with you Chris and the same reasons for the decision to suspend/terminate her HB apply to any refusal to make payments pending the outcome of her appeal.

    But bear in mind that any judge considering an application for leave to judicially review the council will simply be concerned with establishing whether there is an arguable prima facie case. A hearing to determine whether a person should be granted leave to judicially review a public body may be over and done with in 15 minutes. If there appears to be a defect in the decision-making process he may well be inclined to allow her application for judicial review. He won’t necessarily be concerned with the merits of the decision and should she succeed with her substantive JR application it is likely that your decision would simply be quashed and you would be told to make it again.

    Faced with such a case a judge might take the expedient route of adjourning to allow you to remedy the flaw in the decision-making process, rather than allowing leave to apply for judicial review. Particularly in view of the fact that by the time the substantive JR hearing takes place, the appeal will probably have been decided.

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