The end of IS/JSA(IB), termination and adverse inference.

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  • #22849
    Anonymous
    Guest

    You know when you take something for granted because you know it’s right, then someone sows a seed of doubt? That’s what I’ve got now. I know Kevin D has mentioned this before but the matter has come to a head here so I would be grateful for any input.

    Where we receive an ETD notifying us that JSA(IB) or IS has come to and end, we suspend entitlement under reg 11 of the Decisions and Appeals Regs (DAR) and write out for further information as that we can reassess benefit and supersede the decision. We’re not looking at starting work, no EPs are involved.

    Where no reply is received within a month (or whatever longer period blah, blah), entitlement is terminated under Reg 14. All well and good. Except……

    If the ETD is received on 200906 stating that IS is terminated from 210906, and entitlement is suspended straight away, all is well. The decision to terminate is not an adverse inference, benefit ends because the claimant has not provided the evidence we requested.

    But if the ETD is received on 200906 and it states that IS was terminated from 010906, there is a problem.

    Reg 14 of DAR prescribes:

    “A person in respect of whom payment of benefit or a reduction has been suspended……shall cease to be entitled to the benefit from the date on which the payments or reduction were so suspended, or such earlier date on which entitlement to benefit ceases.”

    So on 200906 I suspend entitlement and write for further information. I receive nothing back within the time limit so I terminate the award. Normal practise here would be to end entitlement from the Monday following the end of IS, 040906. But reg 14 only allows me to terminate from when I have suspended the award, let’s say I’ve paid the week commencing 180906 so termination is effectively from 250906.

    I’ve still got the period 040906 – 240906 that I have paid after IS ended. I can’t call that a termination because it is prior to the date of suspension and I have no evidence that entitlement has ceased. I have no evidence that it shouldn’t have either. But I have no mechanism under the DAR to end benefit from 040906.

    I think I am looking at adverse inference here. “You are no longer entitled to benefit from 040906 as I have assumed that your income is too high for you to qualify”, and so on. Following on from an earlier thread
    the termination is not appealable, but I have also made a superseding decision with the adverse inference, which is.

    What do you chaps and chapesses reckon? Am I talking out of the back of my trousers?

    Cheers,

    Darren[/i]

    #9856
    Anonymous
    Guest

    I think that’s 100% right in every detail and explained as well as I have ever seen it explained.

    #9857
    Anonymous
    Guest

    Cheers Peter! 😀 Anymore for anymore?

    #9858
    peterdelamothe
    Keymaster

    Is this your entry for the “poster of the month” comp Darren? 😀

    #9859
    Anonymous
    Guest

    Is that “poster” as in “pin up boy”? Well I was a model in my youth…… Oh, that sort of “poster”.

    To be honest Peter, it’s just a cut and paste of a position that I have prepared for my boss. I just wanted some peer review is all.

    Darren

    #9860
    Anonymous
    Guest

    I’ve been having exactly the same debate with Andy Illingworth (sorry Andy) about the correct procedures to be followed in these cases (see his flow chart on “end of IS” in the Library section). Regrettably you won’t be able to read it because we’ve been PM’ing one another! You are absolutely correct in what you say but if you use Northgate it is not easy to do. Their view of adverse inferences is for the user to input on to the system bogus income of, say, £1000 per week so that they don’t qualify!! I have asked that the STATS_NQ functionality is extended to cover adverse inferences.

    #9861
    Anonymous
    Guest

    Sorry Chris, I gave up Northgate 18 months ago. I’m over it, I gave it up just like that. 😉 I’m working on Academy just now. Well not so much working on it as looking at it ‘cos I’m quality checking, but that’s neither here or there.

    What concerns me now is whether a stat should be recorded for BVPI78b. The ETD is a written change of circs, but something is nagging at me saying that we shouldn’t record a stat for it. I’m hearing the voices again.

    #9862
    Darren Broughton
    Participant

    You record a stat for ETDs as per MIS Guide (Stats 124 Guidance)

    #9863
    arenton
    Participant

    Hello Folks,

    I’m getting a bit worried reading this post, because i must admit that in our authority we would have no qualms about cancelling the claim back to the date IS ended (well the Monday following etc).

    We have always assumed that this was covered by the phrase “or such earlier date on which entitlement to benefit ceaes”. in regulation14 (1)(b).

    If i’m understanding correctly what you are saying here- you not saying benefit [b:c9285b725e]can’t[/b:c9285b725e] be ended at 4/9/06, but that to do so requires 2 processes-
    1 – terminate under reg 14 from date of suspension- , then
    2 – make adverse inference for the earlier period- inferring they would not be entitled.

    Claimant can’t appeal the first, but can appeal the second- so we should taylor our decision notices accordingly.

    Is that what you are meaning, and is that what other Councils are doing??

    #9864
    Anonymous
    Guest

    Yes that’s what we mean and that’s what we do here at Chichester. I would also like to correct another misconception here. DWP have put it about that there is no right of appeal against termination under DAR 14. This is absolutely, totally [b:e503efb527]incorrect [/b:e503efb527]- para 5 of the schedule to the DAR Regulations specifically allows it

    #9865
    Anonymous
    Guest

    Hi arenton,

    Sort of. What I’m saying is that benefit can be ended from 040906, but at that point, it’s a supersession with adverse inference not a termination. We can’t terminate from before entitlement was suspended unless we [b:5049372ced]know[/b:5049372ced] that that benefit has ceased earlier. We can’t [b:5049372ced]know [/b:5049372ced]that because the clt has failed to provide the info that we asked for. Unless, perhaps, they give us proof that they’ve inherited a million quid, but don’t give us proof of income, we can’t be certain either way, so adverse inference it is.

    Or so it seems to lil’ ol’ me. I’m quite happy to be shot down in flames.

    As for what other councils are doing, well we are all over the place on this which is why I’m trying to pin down what should happen.

    #9866
    Anonymous
    Guest

    Darren
    I still think you’re talking sense, and that you are absolutely spot on. 8)

    This is what we are trying to get our assessors to do also.

    I also agree with Chris D regarding appeals following termination. Absolute cast iron right to appeal, and I think the DWP have got the wrong end of the stick here. 🙄

    #9867
    Anonymous
    Guest

    Yeah Jon, I am unclear about the whole termination/appeal rights thing and it is the next thing I have to get my head around. Tomorrow.

    G’night y’all!

    Darren

    #9868
    Anonymous
    Guest

    The Schedule to the D&A Regs doesn’t give a rigbht of appeal against anything – it is there to take away a right of appeal against certain decisions.

    The Schedule says that it is taking away a right of appeal against suspension/reinstatement, but not against termination. So far so good.

    The problem is, DWP take the view (and I have to say I think they are right) that termination does not have a right of appeal to kick off with, so it doesn’t really matter what the Schedule to the Regs says about it. This is because termination is not a “relevant decision” as defined in para 1 of Schedule 7 to the CSP&SS Act 2000. There is only a right of appeal against “relevant decisions” and overpayment “determinations” by virtue of para 6(3) & (6) of the Schedule.

    The only way round this, so far as I can see, is to “read up” Schedule 7.6(3) in accordance with s3 of the Human Rights Act, and give “relevant decision” as used in that subparagraph a meaning that allows the claimant a right of appeal as required by Article 6 of the Convention. I think it needs a Commissioner or Court to give the go-ahead for that as such an interpretation of the Schedule is in my view highly forced and artificial.

    I don’t say I think this is how things should be – just that I think this is how they are

    #9869
    Anonymous
    Guest

    Our local Tribunal Chairman has directed that there is a right of appeal and DWP are wrong

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