Reg 9 Contrived

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  • #39109
    lwatki
    Participant

    I recently refused a claim as a customer has been living in same prop as her ex husband and children for some time. They were joint tenants on council prop in which he went through right to buy on his own.

    This happened in 2008 as he has now deciding to charge her rent but when questioning them they said a rental agreement hadnt been entered into until a decision was made by hb.

    After speaking with appeals i refused claim on reg 9. 1st that the landlord was father of children, 2nd ex partner, 3rd not commercial and 4th contrived.

    The customer has now received letter of decision after it has been read by appeals. I quoted the regs and now she wants to complain about my letter and that solicitor has said it was slander.

    Is this right?

    #110872
    jamcon
    Participant

    Don’t think much of your claimant’s solicitor if s/he can’t tell the difference between libel and slander :bigsmile: From what you have said above, the conclusions you have reached are not unreasonable. Public office holders cannot be sued for carrying out their statutory duties in a reasonable manner. I believe Kevin D quoted some case law confirming this a few years ago, but it escapes me now. If your claimant is unhappy with the decision, they will have to take it to Tribunal.

    #110871
    Kevin D
    Participant

    [quote=lwatki]Is this right?[/quote]

    In principle, of course it’s not right – UNLESS the LA has made the mistake of using language that goes beyond that used in benefits law.

    Cmmrs and UTJs have often referred to HBR 9 being an “anti-abuse” provision and have further observed there will be occasions where those provisions will result in “rough justice”. Generally, the provisions of HBR 9 will not import “bad faith”. However, the one exception to that is HBR 9(1)(l) – the “taking advantage” provision because that necessarily implies at least one party has tried to create a liability to take advantage “improperly” and/or “unfairly”.

    However, so long as the LA has evidence to support such a decision (doesn’t matter whether the clmt agrees with it), there is no basis for suggesting defamation (i.e. slander or libel).

    Did the LA use the term “contrived”? If so, it should be explained the clmt’s solicitor that the LA was applying a statutory provision and that the term “contrived” is used in every day parlance in respect of HBR 9(1)(l); nothing more, nothing less. Make it clear that, on the facts and the evidence available, the Council was legally entitled to reach such a conclusion AND that such conclusions are drawn “on the balance of probability”.

    If the phrase “taking advantage” was used instead of “contrived”, it’s even easier – just an explanation that the phrase is exactly what the legislation says.

    In short, so long as the LA (or individual officer) hasn’t gone off on a “frolic” (see below), there is absolutely no possibility that any Court will find in favour of any defamation proceedings in such circumstances.

    In summary (subject only to the issue of a “frolic”), the LA should politely but firmly make it clear that it has applied a statutory provision in an appropriate context and, therefore, there is no question of defamation. Assuming the notification letter was not rude, I don’t think an apology is appropriate in these circumstances. An apology could result in a further response such as “If you’re apologising, there must be something to apologise for”.

    Finally, a note of caution on defamation (arising out of first hand personal experience with a Tribunal). If an individual officer wrote a letter that went over and above what his/her employer gave authority for, that officer *could*, in principle, be held liable for any defamation proved – it’s the “doctrine of frolic”. However, that would not apply if the letter was first checked (and approved) by a senior officer.

    NB: Your manager should be involved in this and, possibly, Legal just to make sure someone doesn’t inadvertently shoot themselves in the foot.

    #110873
    Kevin D
    Participant

    Just seen jamcon’s post. I can’t recall the case law referred to (was it case law, or the frolic thingy?). In principle, there is nothing to stop the clmt sueing the LA / officer. It’s just that, in this case (assuming there isn’t more to it), it would be utterly pointless and I would expect a Judge to throw it out fairly mercilessly.

    NB: I agree with jamcon’s observation on the “quality” of the solicitor :). Libel = written; slander = verbal (broadly).

    #110875
    lwatki
    Participant

    Thanks both for your comments.

    All i did was detail the evidence avail to me that they has already provided themselves and simply quoted the regs!

    I confirmed that we had made the decision that the rent agreement was contrived.

    Nothing said towards the customers but purely confirmed the decision reached and the regs used to refuse.

    Thanks again

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