Terms & Conditions

[Karen]

I was at an appeal hearing yesterday and we ended up discussing the follow virtues of terminations and overpayments

the chairman stated that after suspension for failure to supply information when a case is terminated from the suspension date – you then cannot create an overpayment because you don’t know what income the clmt was in receipt of.

So, with the case of NHB8’s for a previous period, am I right is saying that after termination you would then treat the NHB8 as a coc notice and create the opay – as the clmt would be on a passported benefit

But, what about non ins case – if you terminate and then the clm doesn’t get back to you can you create an overpayment if you don’t know what the new income details are ??

If the chair is correct in saying that you cannot create opays for failure to supply proof of income (he quoted regs 13 and 14 of the DMA), then surely these folk would then get the benefit of the HB paid to them up to the suspension date 🙄 ❓ surely this is unfair

Please can folks confirm what their take on this is – maybe the chair is right and we have be creating opay when we shouldn’t have – but if you discover that someone’s wages have increased and you send out for proof, with what was said yesterday, if they don’t reply the only opay would be from the date that you have proof, as you can’t create opays for lack of info

help – don’t know what I’m doing now – thouugh I did, but its all gone now

[Anonymous]

I’ll kick off on this one, Karen, but only at the risk of being shot down in flames – (bound to happen!!) 😆
Once a suspension has been effected following, for example, an increase in income, we write out for information as to when the change happened.
If we get something back, then ok.
When we don’t get something back, then we have difficulty. What date do we use for the full cancellation?
If you are cancelling due to non-return of info, then surely this must be from date of suspension, and I can see where your chair is coming from there. 😉

However, do we not also have the power to assume an adverse inference at this point? This may or may not subsequently have to be justified on appeal, but there should always be some justification for it at the time. A “for instance” might be;
Increase in wages
Happens every April
Claimant didn’t report it last April
I could infer that it was April when wages increased, if I don’t have a better reason to infer another date.

At this point I am hoping that the Peter Barkers or Kevin Ds of these boards will refer to the correct regs for this procedure. 😳 (Afraid I am working in a place where I don’t have access to the up-to-date regs).

The point I am making however, is that we are entitled to assume an adverse inference if thought appropriate by a decision maker. If we do, then there may well be an overpayment, so I think you can do what you suggest, but you have to do it in the correct way, and with reference to the correct legislation. 😉 I think your chair may have missed this point.

Sorry for a long and complicated answer, I’m sure someone else may be able to say it in much plainer language than that, but it’s the best I can do at present. 😳 🙄

I will now stand back and prepare to dodge……… 8) (Ouch, oof and other such noises)

[markp]

I’m with Jon on this – an adverse inference carries the right of appeal and, should the appellant do so, they would have to provide such evidence in support to make the decision revisable (is there such a word?!)

I don’t think many tribunal chairs would disagree with this approach as long as the LA can justify decision under appeal.

Do I know what I'm doing? The jury's out on that........................

[Anonymous]

Got to disappoint you here Jon – I can’t really add anything, you covered it.

Oh, go on then. There’s no legislation governing adverse assumptions in general, but if you are going to end someone’s benefit from a particular date (and not using the suspension & termination sanction), you have got to make a superseding decision and justify the effective date of that superseding decision under D&A Reg 8, for example by reference to a change of circumstance that you assume must have happened around that time. Just like your wage increase example.

I also agree with the chair in Karen’s case that suspension and termination alone are not enough to support an overpayment: susopension and termination means you don’t pay any more benefit, but to go back further you have to be able to justify supersessioon/revision in the normal way.

[Kevin D]

Adverse inferences: [b:2294c7aaed]R(H) 03/05[/b:2294c7aaed].

There are other CDs which have also covered adverse inferences – including a couple of O/P cases where underlying entitlement has been at issue and where the clmt has been, erm, “reluctant” to provide evidence.

Also, on a current thread on Rightsnet, an issue arose relating to evidence being “reasonably required”. This extract from [b:2294c7aaed]CH/4688/2003[/b:2294c7aaed] may be of interest:

[quote:2294c7aaed]Ground 1
11. This is that the tribunal misdirected itself on regulation 73. According to the ground as set out by the claimant’s solicitor, ‘the tribunal only directed itself whether the information requested from the appellant was reasonably required under Regulation 73 and not whether the appellant could reasonably be expected to supply it.’ In fact, that direction is precisely correct. It reflects the very words of regulation 73. The issue is what the local authority requires in order to calculate entitlement. If the claimant cannot provide it, that may prevent the local authority making a decision at all or making one that is as favourable as it might otherwise be. But the issue under the regulation is: what information does the local authority reasonably require? And in the context that must mean: require for the purposes of operating the housing benefit scheme and, in particular, determining proper entitlement to housing benefit. [/quote:2294c7aaed]

Using CH/4688/2003 appropriately, in conjunction with adverse inferences, provides a potentially useful tool to, ahem, “encourage” claimants to provide info / evidence for past periods.

Regards

[Karen]

thanks for your opinions guys, we are trying to sort out some form of refresher training for staff, and this will help

cheers

[Author]

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