TAS and underlying entitlement appeal

  • This topic has 10 replies, 1 voice, and was last updated 16 years ago by Anonymous.
Currently, there are 0 users and 1 guest visiting this topic.
Viewing 11 posts - 1 through 11 (of 11 total)
  • Author
    Posts
  • #23384
    emm
    Participant

    I havent presented many appeals before but thought I was onto a winner with this one.

    we had a solid case for a recoverable gross overpayment- all the regs applied correctly and the claimant given more than reasonable time to provide sufficient info to calc u/e but because the claimant failed to proide evidence of all his capital u/e could not be calculated.

    however the hearing was adjourned because the appellant couldnt make it and the chairman issued directions to the appellant to provide the outstanding info so that u/e could be addressed again!!!!!!!

    I was under the impression that once u/e had ben addressed that there was no reason for it to be revisted

    Am I going crazy or was the chairman correct ?

    #12273
    Kevin D
    Participant

    A chair has the right to take any decision open to the LA. So, it’s a difficult one to argue against, unless you can show there is no legal basis on which the Chair could make that request.

    But, these CDs may be of interest:

    [b:921063cd8c]CH/4688/2003
    R(H) 01/05 (aka CH/2588/2003)
    CH/0412/2006
    CH/1416/2005[/b:921063cd8c]

    With regard to the argument about the Tribunal requesting evidence, there are two options:

    1) argue that the clmt has already had his chance to provide evidence

    2) accept it on the basis that when an appeal is made, an LA (& therefore a Tribunal) is entitled to seek further evidence relating to the appeal.

    In [b:921063cd8c]CH/2466/2005[/b:921063cd8c], it was found that an LA (& Tribunal) were entitled to rely on the original decision where evidence was provided late. However, it doesn’t seem to prevent late evidence being accepted if the LA/Tribunal go the other way.

    Hope the above helps.

    NB: If an appeal had been made out of time etc, I’d take a very different approach re the time limits involved etc. But, that’s been done to death on other threads alread – just making it clear that an in time appeal potentially makes a difference.

    #12274
    emm
    Participant

    Thanks Kevin, thats a big help

    I had had the chance to look at some of cd’s but couldn’t find them all,

    If the claimant comes up with the info – i shall stick with the decision and include the cd’s in my reasoning

    #12275
    Kevin D
    Participant

    CDs can be located on this site as follows.

    1) Click the “CASELAW” link at the top of the page (or here):
    new.hbinfo.org.com/menu2a/menu2a.htm

    2) Click a link to any of the categories (apart from High Court and Court of Appeal….).

    3) On the right hand side, there is a search facility – type a word, or partial CD reference (e.g. “4688” – without the speech marks). Click on the “search” button.

    The search will find the CD even if it is in another category.

    4) If more than one CD is listed (some have the same middle ref, but are in different years), just click on the CD required.

    All the links for the above CDs are as follows:

    new.hbinfo.org.com/comdecs/ch_4688_2003.doc
    new.hbinfo.org.com/comdecs/ch_2588_2003.doc
    new.hbinfo.org.com/comdecs/ch_0412_2006.doc
    new.hbinfo.org.com/comdecs/ch_1416_2005.doc

    new.hbinfo.org.com/comdecs/ch_2466_2005.doc

    Regards

    #12276
    emm
    Participant

    Thanks again

    #12277
    Andy Thurman
    Keymaster

    [quote:d594be82a1] havent presented many appeals before but thought I was onto a winner with this one[/quote:d594be82a1]

    Sorry Emm, but it isn’t a competition. Can I just ask why, if the clmt does now provide all the info, you wouldn’t want to revise? Any UE awarded will leave you with less o/p remaining to recover.

    #12278
    emm
    Participant

    Andy

    The claimant was notified of the overpayment in december 05 and appealed in time. he submitted a new claim at the same time and was eventually given until March 06 to provide the info outstanding for the u/e andnew claim- he failed to do so and the u/e and new claim was nil entitled in March 06.

    he appealed again in august 06- late but I accepted it as maybe he just didint know what he needed to provide- he was given until nov06 to provide info for u/e but did not respond at all.

    his appeal was sent to TTS and struck but was later reinstated.

    The chair has now givne him two more months to provide info- taking us to march07- outside 13 months.

    Surely there are time limits for u/e and under what Reg would I revise when I believe we have applied the Regs correctly.

    I know its know its not a competition but surely we have to play by the rules!!!!

    #12279
    seanosul
    Participant

    There is some doubt about whether underlying entitlement is subject to a time limit. This thread may add more food for thought!

    https://hbinfo.org/forum/viewtopic.php?t=8016

    #12280
    Andy Thurman
    Keymaster

    Hi Emm,

    Firstly,sorry if my first post seemed at all rude – it does a bit to me now I read it back but it wasn’t intentional. 😳

    That’s quite some example of failure to provide evidence!! From the scenario described, I’d say you either have an [i:906a65fc4c]extremely[/i:906a65fc4c] vulnerable claimant who I would want to help as much as possible or someone who is withholding for a reason (do those bank statements show something??!!).

    If the former, I’d use the ambiguity on timescales for UE and even be looking for ways to look at the new claim again. Has a visit been offered/carried out? Do they have a support worker or is there a welfare group locally that could help? (The new time limit set by the chair is irrelevant in terms of being over 13 months as the appeal being dealt with was within that timescale.)

    If the latter, I would guess that the evidence still won’t be provided (make sure you insist on the same statements as originally requested) and examine very closely if it is!

    Either way, if evidence proves UE existed, it isn’t in anyone’s interest not to reduce the overpayment – as the tribunal chair has issued directions, it would be bullet-proof from an audit perspective & you’ve less outstanding overpayment to recover. 🙂

    #12281
    emm
    Participant

    Andy

    Thanks for your thoughts on this, particularly your closing argument.

    You’ve been helpful – audit ??? I hadn’g thought of those implications

    I did seem to rant on a bit tho’ – sorry

    Michelle

    #12282
    Anonymous
    Guest

    Emm, you’ve said all that is necessary in jujst a few short words:

    [quote:762f503825]The claimant was notified of the overpayment in december 05 and appealed in time.[/quote:762f503825]

    So the amount of the overpayment is in the hands of the Tribunal. The amount of time allowed for information top be provided is a matter for the Chair, not for you.

    Whether or not there are time limits within which a claimant must provide evidence showing “underlying entitlement” to the LA, where the LA is deciding the amount of the overpayment, is not the issue here. In this case, an appeal has been made against the overpayment, the Tribunal is going to hear the appeal and it can give any directions it wants to in the meantime.

    Once again it is worth emphasising that local revision and appeal are two separate rights of dispute. In this case the claimant has chosen the appeal option – whether he wins is out of your hands and that’s how it should be. In essence I think you are saying he is oput of time for the local revision option. I daresay he is, but that’s not the point – what you have here is an appeal and the Tribunal will decide how long to allow for compliancfe with directions.

Viewing 11 posts - 1 through 11 (of 11 total)
  • You must be logged in to reply to this topic.