person affected by a decision

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  • #37976
    gcooper
    Participant

    I can’t beleive the decision I have just received from a tribunal and wondered if anyone has had anything similar.

    We made a decision to refuse HB as we did not beleive that the claimant was occupying the property as her sole or main residence. The landlord appealed against the decision and it was referred to the tribunal as not duly made as the appeal was brought by a person not affected by the decision.

    The tribunal have now decided to allow the appeal to be admitted as the landlord is a person affected by the decision as it would affect whether they get HB/Rent.

    The Tribunal Judge has stated that Reg 3 of the decision and appeal regs is not exhaustive and refers to CH/3817/2004 and Salisbury Indepentant Living v Wirral Metropolitan BC [2011] UKUT 44 (AAC).

    Anyone got any comments please?

    #106879
    jmembery
    Participant

    Yep the decision is in line with that of CH/3186/2009 a landlord is a person affected.

    A lot of people (including me) think that decision is wrongly decided but as things stand you can’t balame a 1st Tier Tribunal for following it.

    #106881
    Kevin D
    Participant

    [quote=jmembery]Yep the decision is in line with that of CH/3186/2009 a landlord is a person affected.

    A lot of people (including me) think that decision is wrongly decided but as things stand you can’t balame a 1st Tier Tribunal for following it. [/quote]

    ———————————-
    I agree with Jeff that CH/3186/2009 (and the earlier decision) is wrongly decided on this point. As currently “interpreted”, it leaves DAR 3 hanging like an unwanted pointless appendage. I won’t be laying any bets on the DWP bothering to challenge the decision or, more effectively, changing the legislation to put it beyond doubt.

    In my view, both of the decisions completely (or deliberately?) fail to grasp the structure of the primary legislation.

    #109229
    Kevin D
    Participant

    *bump*

    Some news on Wirral (MBC) v Salisbury Independent Living (aka CH/3186/2009).

    In May, permission to appeal was granted by the Upper Tribunal. The “window” for the case is currently stated as being 03-Nov-11 to 05-Mar-12.

    On that basis, LAs would be within their rights to ask FtTs to stay similar cases pending the outcome of the CA case.

    #109234
    Anonymous
    Guest

    I have thought long and hard about the Wirral case and I have decided that I hope the appeal fails.

    Exempt accommodation appeals are complicated enough with only one appellant, and one of the things that has made them even more complex in the past has been the need to have an individual claimant or, more typically, a group of claimants who act the role of appellant. You have multiple appeals against individual awarding decisions made on various dates and, well I am sure you know how messy it gets. Sometimes the individual might have been prevailed upon to assist and they understand what they are doing, sometimes they lack the mental capacity to understand what they are doing, but in 99.9% of cases I very much doubt whether the individual who is being held out as appellant is genuinely cocnerned about the outcome. They might be a former occupant of a short-stay hostel, in which case what does it matter to them any more? Or they might be living in a custom-procured home that has been arranged as part of a care and accommodation package for a person with a severe learning disability, in which case they may not understand the significance of the appeal even if the result is vital to the viability of the package. In short, the idea of the individual claimant pursuing the appeal on his/her own initiative has always been a charade – for all practical purposes in these cases it is the landlord’s appeal. Everyone knows that. The Wirral decision means we don’t have to pretend any more.

    I think the decision makes it easier to do what has always been done, but out in the open now.

    I understand that Wirral is pursuing this appeal without the Secretary of State’s support – when they first approached DWP, DWP was fairly relaxed about it. I don’t know whether DWP will automatically get on board now the matter has reached the court of appeal. I would have thought the court would want to hear DWP’s submission in any case because the appeal turns on whether the new D&A Regs in 2001 by implication carried over an intention to preserve the anti-Highgate drafting in the old HB Regs, or whether the Secretary of State was starting all over again maing brand new Regs under fresh primary legislation. That requires the court to investigate in some detail the Secretary of State’s intentions in July 2001, and it seems to me the Secretary of State will have to take part if that is going to be done properly.

    #109239
    Kevin D
    Participant

    [quote=Peter Barker]I have thought long and hard about the Wirral case and I have decided that I hope the appeal fails.[/quote]

    Er, I hope the appeal succeeds :). It’s not just about exempt accom and/or short-term accom and, besides, a successful appeal by Wirral would not prevent clmts from being represented. The DWP don’t have to worry about the consequences of the UTD so I’m less than surprised if they aren’t really that bothered. What would be interesting is if they end up positively supporting SIL’s argument.

    If the appeal does fail, I can imagine all sorts of possible appeal grounds being opened up. Was the clmt’s partner notified (particularly in CTB cases where CTAX accounts are jt & several); was a non-dep notified? LLs in non-direct cases? If a switched-on WRO could show that any of the “loose” connections were “persons affected”, any failure to notify ALL persons affected would render any related decision to be of no legal effect at all until / unless the notification issue was rectified.

    Although not analysed to any depth and definitely obiter, Cmmr Williams (as was) seemed pretty sure in CH/136/2007 that the locus given to Baragrove Properties couldn’t be repeated under DAR 3. It’s a shame that wasn’t explored further but, as it happened, the “locus” issue was never really pushed by the LL in that case (Peter will doubtless recall I had first hand dealings with those cases, hence the inside knowledge).

    However, the Wirral / SIL case will, hopefully, nail it once and for all, one way or another. That means none of the above ramblings are going to matter in the slightest :).

    #110225
    Mike Bailey
    Participant

    Court of Appeal case is currently listed for 25 and 26 January 2012

    #116386
    Mike Bailey
    Participant

    Court of Appeal decision has now been given.

    Wirral’s appeal was allowed.

    Landlords’ rights of appeal are limited to those circumstances listed in Reg 3 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001.

    #116396
    gcooper
    Participant

    Hi Mike,

    Thanks for that info.

    Any ideas where I can find the details as it doesn’t appear to be on the UK Justice website yet.

    Thanks

    #116413
    Chris Robbins
    Participant
    #116416
    Kevin D
    Participant

    One of my final posts…

    A thread from some time ago, on the same issue, may be of interest:

    OVERLAP – L/LORD A PERSON AFFECTED ??

    #116423
    Anonymous
    Guest

    Is that the one that says “last edited by Kevin D at 15.30 on 9/2/2012?” 🙂

    Seriously, what do people think are the implications of this decision for appeals in the pipeline that have already been made on the strength of the original UT decision, especially those that have been admitted by the Tribunal? Even cases where the Tribunal has made a decision already?

    Kevin’s suggestion above to ask for appeals to be “stayed” looks like a good one with hindsight – the ideal position to be in now would be where the Tribunal has directed itself to postpone a preliminary ruling on jurisdiction until after yesterday’s decision.

    As I understand it the position now is that Judge Rowland was wrong and a landlord has never been a person affected except in the way Reg 3 allows ever since the original anti-Highgate amendment in the 1990s. Any Tribunal decision that has been given on a landlord’s appeal during the last year or so would appear to be erroneous in law in that the Tribunal had no jurisdiction to entertain the appeal – the only thing stopping such a decision from being appealed or set aside would be time limits. The Tribunals might conclude that the tidiest way to deal with decisions already made more than a month ago and not challenged would be to decline to extend the time limit for an SOR, set aside application or UT appeal. That way the decisions can be left undisturbed as final ones even though they were wrong in law.

    The trickiest cases are those where the Tribunal has not yet made a decision but the appeal exists and was made while Judge Rowland’s decision was the current authority. [b]Should those appeals now be struck out?[/b]. And where the Council has not yet submitted the appeal but was about to, should those appeals now be submitted as out of jurisdiction and [b]should the Tribunal strike out/decline to entertain the appeal?[/b]

    I think the answer has to be yes to both. I cannot see how the anti-test case provisions in Paragraph 18 of Schedule 7 to the CSP&SS Act 2000 have any relevance here because the Court has not found any error of law in Wirral Council’s original relevant decision – the appeal is about who has the right to challenge that decision.

    If Salisbury Independent Living is now planning to appeal to the Supreme Court, maybe all such cases should be stayed. Or is it now safe to assume that an appeal is unlikely to succeed even if brought? If I were SIL I would now probably be thinking lets go back to the charade days where all our service users appeal individually and authorise us to represent them, put these 10 individual cases down to experience and move on.

    #173749
    bizzielizzie
    Participant

    Could someone advise where we stand on this issue today – is http://www.bailii.org/ew/cases/EWCA/Civ/2012/84.html still current or is there more recent case law?  Many thanks

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