Revision of a termination

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  • #38687
    ctbadjw
    Participant

    Hi, i’m currently looking at a claim that was cancelled in April 2010 due to a review form not being returned. The claimant is on PC(g) and DLAcare so not effecting the non dep in the prop. It also has triggers on our system with regards to mental health and vunerable. As i’m looking into a report for Housing arrears this has come into my work queue to try and get them to claim HB/CTB again.

    The Question is, can i revise the original decision to when it was cancelled in April 2010 based on that we knew via CIS they would have been on PC(g) and DLAc and that it was a LA property? And will i have to complete a new claim form for them?

    Or is it to late for them now and they’ll just have to complete a new claim form!

    Many thanks

    #109270
    ctbadjw
    Participant

    Yeah the claim was cancelled due to no reply from a review form that was sent out as we were still reviewing claims then!

    Thanks for that, i’ll look through all them DAR’s (if i can make head and tail of them!

    Many Thanks

    #109243
    Kevin D
    Participant

    When you say the “claim” was “cancelled” in April 2010, what exactly happened? Did the LA decide:

    1) termination (via DAR 14 route); or
    2) “normal” supersession (via DAR 7) drawing inferences about the clmt’s circumstances?

    If the former, did the LA first suspend AND then FULLY comply with DAR 13? If any part of DAR 13 was not complied with, the termination decision under DAR 14 would legally fall. That would mean, in law, the award is still lawfully in place (just that no benefit has actually been paid). This wouldn’t require a revision at all – just the reinstatement of payment.

    If the DAR 14 route was properly complied with, I’m struggling to see any grounds on which to revise – even the DAR 4(2) “anytime” route would be tricky.

    If the “cancellation” was by way of inference under DAR 7, did the LA’s decision arise by way of an “official error”? If so, the “anytime” revisions route would be open under DAR 4(2)(a). For example, WHY did the LA “cancel” benefit? One consideration could be whether or not it was an error to require a clmt to complete a review form – was it headed up as a “claim” form, or was there only reference to a “review”? If headed up “claim”, I think it is arguable that was an error – there is no legal basis on which clmts can be required to submit “renewal” claims during an existing award.

    For completeness, based on the info given so far, I can’t see any way in which DAR 4(2)(b) can assist.

    Hopefully, something in the above will provide a way in, even if it means swallowing a bit of humble pie.

    #110761
    JACKAL
    Participant

    Hi,

    Can anyone please clear this up for me?

    New claim received and is “Nil” qualified because proof of info requested was not received (whether it was “adverse” or “defective”) within 1 month of request.

    My understanding (with MOST LA’s) is that customer has 1 calendar month from date of decision to provide info in order for decision to be revised.

    Apparently this is NOT the case and new claim is required and reconsideration request to show good cause as to why info was not provided before (as per legislation)?????

    #110767
    Anonymous
    Guest

    It really depends how pedantic you want to be about the percise reason for refusing the claim.

    If your decision was that the claim was defective, because the claimant did not comply with the instructions on the form to provide certain items of evidence, then some would say that the scope of any subsequent dispute about the matter is confined to whether the claim was indeed defective at that time. Providing the information within the month following the decision is no use, because it doesn’t change the fact that the claim was defective when you said it was.

    On the other hand, if the claim was not defective, but the Council needed some supplementary info and the claimant failed to provide that info, the decision would take the form of an adverse inference. If the info is provided withion a month of that decision, the decision may be revised because new information has come to light showing that the inference was mistaken.

    Most Councils do not make this distinction and allow everyone a second bite of the cherry within a month after making the decision. If necessary, that could be justified legally in the case of a defective claim decision by retrospectively extending the time limit to provide information, something that was endorsed a long time ago by the Court in the case of Berisha and, despite the evidence and deefective claim Regs having been amended to kingdom come since then, I think it is a principle that probably still holds good.

    You could probably make the same points in relation to termination v adverse inference

    #110768
    Kevin D
    Participant

    {Edit: Compiled before seeing PB’s post}

    Technically, the LA could maintain its position as suggested and it isn’t “wrong”. However, it is a false position to maintain for two reasons.

    1) DAR 4(1) provides that LAs may revise a decision – sub para (b).

    2) In CH/360/2006, the LA argued the same position as your LA – and got roundly criticised (despite earlier legal authority supporting the LA’s position). True, it was in relation to evidence relating to underlying entitlement rather than a new claim but the principle is the same – further evidence within the one month “dispute” window.

    Bottom line: in light of CH/360/2006, it isn’t worth the hassle. You could make a sound argument that the “no revision” / “new claim needed” route is lawful. But, a FtT takes the place of the LA and it is more likely than not to be less than impressed such a case has reached a hearing when the LA had the power to revise the decision. Also, although in a different context, Novitskaya v LB Brent & SoS DWP [2009] EWCA Civ 1260 suggests that to all intents and purposes, benefits legislation should not be interpreted in a manner so as to obstruct claimants from being able to claim social security benefits.

    Further, there is no requirement for a clmt to show “good cause” for providing late evidence in the context of it being for a new claim. If someone is saying otherwise, ask them for the legislation (not guidance or training notes) – it will be a long wait :).

    #110830
    JACKAL
    Participant

    Great, thanks guys,

    So just to recap.

    The Local Authority are within their rights to ask a customer to complete a N/C.

    But if this were the case, does that mean the effective date will be monday following date form is received?

    If all this does is revise decision, then surely it would be best practice (for all LA) to accept relevant proofs and reconsider (rather then waste more paper).

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