Terms & Conditions

[webmaster]

I am dealing with a claimant who came off IS in Feb 2005, the claim was suspended & subsequently terminated because the new claim form issued was not returned.

She has claimed in May 2006 asking for Benefit back to Feb 2005 and has appealed following our refusal. I am fairly happy with the backdate aspect of this request.

My post is regarding the DWP’s recent guidance that the termination in 2005 was an administrative decision and there are no appeal rights – has anyone run this viewpoint past an Appeal Tribunal? What was the result? Did they accept it was OOJ? What legislation did you quote?

Any advice would be helpful.

Cheers

[aosulliv]

At a recent TUG meeting, this was raised as a point of discussion.

The Chairs that were present were not aware that no appeal rights existed for termination under Reg 14, but said that they wanted cases to be sent and used as potential test cases

[Kevin D]

Not tried arguing it, but that’s only at one LA where the view is appeal rights should be given.

For what it’s worth, I happen to agree with that view. Maybe I’ll be proved wrong, but track record suggests that cases of this nature reaching Commissioners tend to be found in favour of the claimant.

Personally, I’d only run a case based on the DWP advice purely for the purpose of getting a “test” case dealt with. I’d feel much more confident representing a claimant on this issue.

Regards

[Anonymous]

The no-appeal argument starts from the provision that creates a right of appeal to the Tribunal: paragraph 6 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000. This paragraph says there is a right of appeal against any “relevant decision” of two possible kinds:

– on a claim or award of HB/CTB, or
– some other decision of “prescribed description”: subpara (1)(a)(b) (but I don’t think there are any of these).

Regs may, however, prescribe decisions against which the right of appeal is removed – para 6(4).

So the first question is: does termination amount to a “relevant decision”?

That term is defined in para 1(2) of the Schedule as meaning a decision on a claim, or a superseding decision including, by implication, decisions as subsequently revised (but not including the preliminary issue of whether or not to revise, which does not create a fresh decision in its own right).

The Schedule then goes on to set out three decision-making actions: a decision on a claim, revision and supersession. After that it goes straight into appeal rights, from the Tribunal through to the Court of Appeal; until you reach paragraph 11 which says that a decision made under the “preceding” provisions of the Schedule is final. At this stage, suspension and termination have not been mentioned at all – they only appear in paragraphs 13 – 15. So the no-appeal argument says that suspension and termination are not part of the decision-making flow that starts with a decision on a claim and ends up in the Court of Appeal – they are something else.

The counter argument is that the term “relevant decision” as used in para 6 of the Schedule is not restricted to the meaning given to that term by para 1. I am not convinced by this argument in the context of Schedule 7 alone, but if you throw the Human Rights Act into the mix you find that s3 says wherever it is possible to “read up” legislation in such a way as to give it an interpretation that does not violate ECHR, you must do so. So if it is possible to read para 6 as having a wider scope than merely conferring a right of appeal against “relevant decisions” as defined in para 1(2), the Human Rights Act requires it to be read that way in order to ensure compliance with Article 6 and allow a right of appeal. That’s the pro-appeal argument.

One red herring often quoted in error is the Schedule to the D&A Regs which lists decisions against which there is no right of appeal – the Schedule is made under para 6(4) of Sched 7 to the Act referred to above. Suspension of HB and CTB is listed here, but not termination. This does not mean there is a right of appeal against termination – it just means termination is not excluded from any right of appeal it would otherwise attract. The problem is, it might not carry a right of appeal in the first place because it’s the wrong kind of decision.

[Anonymous]

I have sent a case to TAS (as it was) as out of jurisdiction.

It was originally confirmed as outside the tribunal’s jurisdiction but was re-referred by one District Chairman to another for reconsideration as the refusal was “wrong because there is a right of appeal against termination decisions – see the express words of para 5 of the schedule to SI 2001(1002)”

I had quoted paras 1 & 6 of of Schedule 7 to the Child Support, Pensions and Social Security Act 2000.

So I’ve had both answers…

[Anonymous]

Ah, but the “express words” of para 5 of the D&A Schedule are that termination is not excluded by that Schedule from the right of appeal. The District Chair has fallen into the trap of concluding that this means there is a right of appeal – it doesn’t.

There is a sign saying that I am not allowed to park my Rolls Royce in the spaces reserved for Members at Havering town hall, but the sign does not apply to the public spaces elsewhere in the car park. Does this mean that I can park my Rolls Royce in the public spaces?

No, because DAMMIT I haven’t got one. The rules governing where a Rolls Royce may or may not be parked are irrelevant to people who don’t have a Rolls Royce.

[Author]

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