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

Currently, there are 0 users and 1 guest visiting this topic.
Viewing 13 posts - 16 through 28 (of 28 total)
  • Author
    Posts
  • #9870
    Anonymous
    Guest

    All very well for me to say this Chris, not being answerrable for your PM results, but you could make a public-spirited gesture here and take one to the Commissioners, just so the matter gets an airing.

    #9871
    Anonymous
    Guest

    I agree with the local chair on this one, and I think he does have the of the power to do it. I think this would be covered by S7 and 9 of the HRA

    #9872
    Anonymous
    Guest

    This is shaping up to be the next Desert Island series.

    I am not convinced about Stainsby’s suggestion that a Tribunal; can give itself jurisdiction under HRA s7 and s9 – those are about proceedings to remedy injustice caused by actions of a public authority. They would be relevant if a person wanted to argue that termination [i:3ad618df5b]per se [/i:3ad618df5b]has infringed his or her rights. The normal remedy would be JR, but the matter could also be raised in the course of an appeal against a benefits decision (whether at Tribunal level or higher I am not sure – see subsection (6)(a) which talks about an appeal against a Tribunal decision). But there would have to be an appeal going on in the first place for the Tribunal to deal with an application under s7 – and the problem with termination is that it needs a very awkward reading of Sched 7.6(3) to get the appeal off the ground. For exactly the same reasons, the applicant in the recent case of RJM (who wanted to challenge the validity of the homeless rates of applicable amount in IS) had to apply for JR because he wasn’t in a positoin to bring an appeal against the matter that aggrieved him.

    Tell you what as well Stainsby – I’ll give you a penny to a quid Chris’s Chair hasn’t even thought about the HRA – s/he has just looked at the D&A Regs Schedule and concluded that it gives a right of appeal (which it doesn’t of course).

    I still think HRA s3 is the only way to get termination into the Tribunal’s jurisdiction by closing your eyes and ears to the normal meaning of “relevant decision”. I wouldn’t want to say that is a promising argument until a Commissioner or Court has dealt with it.

    So go on Chris – become a Benefits legend and take one to Commissioners[/i]

    #9873
    Anonymous
    Guest

    The decision as to whether or not a claim is validly made would not be a relevant decision if the narrow interpretation was used, but that decision is appealable following R(IS)6/04. Similarly, under the old striking out provisions for misconceived appeals, it was held that there is an appeal to the Commissioner even though the Regulations delegated the determination that the appeal was misconceived to a legally qualified member (not sitting as a Tribunal) [see R(CS)5/02.]

    The schedule the D&A Regs still specifically excludes termination decisions from the list of decisions that cannot be appealed, and no amount of guidance from the DWP can delegate decisions as to the vires of Regulations down to decision makers.

    Decison makers cannot argue that Tribunals have no jurisidiction over the issue on the basis that the Regulations are ultra vires, yet at the same time argue that the Tribunal can not make a ruling as to the vires of the Regulations, but decison makers can. That would most certainly be a breach of Article 6

    #9874
    peterdelamothe
    Keymaster

    A suggestion. If someone (Darren, Stainsby, Peter?) would like to list all the issues, I will ask the Commissioner for his views at the next appeals training.

    #9875
    lizc
    Participant

    We also had a chair decide that it was appealable and within his jurisdiction to hear the appeal. The appellant was unsuccessful with the appeal itself though and the last I heard, the appellant was intent on going to Commissioners with it. I did (at Peter B’s suggestion) contact the DWP to let them know, but I haven’t heard anything since. So…if you do get any view off a Commissioner, I would love to know what it was!

    Thanks!
    Liz

    #9876
    Anonymous
    Guest

    just re-read this again following the link on the newsletter- has anyone heard any views from a Commissioner yet?
    Also- if anyone feels like explaining to a ticko I’d be very grateful- why is a termination not a “relevant decision”???? thanks

    #9877
    Anonymous
    Guest

    just re-read this again following the link on the newsletter- has anyone heard any views from a Commissioner yet?
    Also- if anyone feels like explaining to a thicko I’d be very grateful- why is a termination not a “relevant decision”???? thanks

    #9878
    Kevin D
    Participant

    Glenys:

    To answer your question, this is copied & pasted from an earlier post in this thread by Peter Barker:

    [quote:195a4d8d0f]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. [/quote:195a4d8d0f]

    Regards

    #9879
    Anonymous
    Guest

    ooops sorry didnt read it properly. don’t suppose you have a copy of this para you can post on the site?

    #9880
    Kevin D
    Participant

    Yep…. 😕

    new.hbinfo.org.com/menu2/acts/cspssa2000.shtml#sched7

    #9881
    Anonymous
    Guest

    thanks 😀

    #9882
    petedavies
    Participant

    Extract from a Tribunal decision below.

    I originally agreed with the view that there was no right of appeal but find the rational below very difficult to take issue with so have not requested a statement of reasons.

    [color=darkblue:640023afde]The decision under appeal was a supersession of that decision and therefore carried a right of appeal. Paragraph 15 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000 and Regulation 14 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 taken together merely specify certain circumstances – circumstances that exist on the facts of this case – in which a person ceases to be entitled to Housing Benefit. They do not create a separate type of decision that is distinct from a supersession and therefore exists outside the right of appeal created by paragraph 6 of Schedule 7. Whether or not the circumstances specified in Regulation exist is an issue of fact on which the authority must make a decision before regulation 14 can apply. That decision operates by way of a supersession of the previous award. I reach my decision without consideration of the Human Rights Act but if the Act and regulations had been ambiguous (which in my view they are not), I would have constructed them to achieve the same outcome in order to protect [i:640023afde][the claimant’s][/i:640023afde] convention rights under Article 6 of and Article 1 of the First Protocol to the European Convention on Human Rights.[/color:640023afde]

Viewing 13 posts - 16 through 28 (of 28 total)
  • You must be logged in to reply to this topic.