Terms & Conditions

[mew]

Jusr realised that I posted this on the board that has been archived.

Hi, I wonder if there is anyone out there who is willing to give me their opinion on this.

A claim is made defective because the claimant has failed to provide evidence of their earnings within one month. A DNQ letter is issued which contains their dispute rights.

The missing evidence comes in within their one month dispute period. I am suggesting to our processing team that the claimant does not have to provide their reasons why they failed to provide the info within the initial one month in accordance will reg 4(1)(a)(i) of the DMA regs 4.

‘Revision of decisions
(1)Subject to the provisions in this regulation, a relevant decision (“the original decision”) may be revised or further revised by the relevant authority which made the decision where –
(a)subject to regulation 10A(3), the person affected makes an application for a revision within –
(i)one month of the date of notification of the original decision; or’

It is enough for them to just ask us to revise and supply the missing information/evidence.

If however, they do this after the one month then an application for a late revision is required and they do need to provide their special circumstances which prevented them from asking for a revision within the one month. This will then be dealt with the revision/appeals team, or a new claim and a backdate request.

I am having trouble convincing them off this. Am I interpreting the regs correctly or could/should this be interpreted as just an internal policy to automatically reinstate defective claims where missing info is provided within one month.

Any help or advice on what you do at your authority will be much appreciated.

I am on leave until 17th July now so if I don’t respond to your comments I’m not being rude.

Thank you in advance.

[Anonymous]

I’ll giove you two answers: one that would applies to the vast majority of decisions, and another that is tailored more to the particular kind of decision you have made here.

First, the general answer. You are absolutely correct: a decision can be revised if the claimant disputes it within a month; a decision can also be revised if it was made without all the facts being known at the time, and the missing facts come to light within a calendar month. The language is not mandatory (“may” be revised rather than “shall”) but it is absolutely perverse not to revise a decision when you can see that the original decision was wrong and you have been approached within the time limit.

Second, the more tailored answer. In this particular case, you have made a decision that the claim is defective. In the light of the new material you have received, does that decision now look wrong? Some (including some highly respected voices on here) would say no: the claim was defective when you made your decision, and the new information does not change the fact that it was defective when you made your decision. It’s not as if you were unaware of something that meant the claim was not defective at the time. What has happened in reality is that the claimant has supplied evidence late; you would only revise the decision if you are satisfied that it is reasonable to extend the time limit for providing evidence, thus making the claim un-defective retrospectively. The ground for revision would be that the claimant has disputed the decision within a month, and you are satisfied with what he now says about the delay in supplying evidence. It’s still a Reg 4(1)(a)(i) revision, but the reason for agreeing to it is a retrospective extensi0on of the time limit to provide evidence in support of the claim.

I don’t know, however, whether Tribunals will be enthusiastic about this kind of hair-splitting – I wouldn’t be surprised if many Tribunals take the view that you suggest in your message, and say that evidence provided within a month of the defective claim decision is sufficient to overturn the decision on grounds of ignorance of a material fact – the evidence itself being the material fact.

You could sum up the issue like this: is the decision revised because the missing evidence is now present; or is the decision confirmed because the claimant’s dispute does not change the fact that the claim was defective whe the decision was made?

Finally, this complication can be avoided if you don’t use the messy concept of a defective claim decision – and jump straight to adverse inference (“you are not entitled to HB because we cannot be sure your income/capital/rent etc are in the right range”). This is a clear decision on the substantive conditions of entitlement and it would be revised in the circumstances set out in nyour message, because you have information within a month to show that the adverse assumption was incorrect. I know that other equally respected voices on this forum advocate this approach.

[Anonymous]

May I ask ….. how is BVPI 78a calculated in instances where defective decisions are made and then ‘resurrected’ – would the clock stop at defective decision date or the full determination date?

[chris harvey]

Kelly

The clock stops when you make your first decision (ie that the claim is defective or an adverse inference decision). Remember you must have given them the relevant one month time before you can make a decision so your BVPI will not be great anyway.

[Anonymous]

Thanks Chris – thats a relief

Kelly

[simondoyle]

Of course, there remain a few councils who still don’t make a decision on defective/incomplete claims and so they don’t count towards their new claim PI. As a result, they report better PIs.

[Author]

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