Terms & Conditions

[jamcon]

Having a bit of a debate at the moment inside the Council and between the Council and contractor as to what is a decision.

It has always been my belief that a decision is where a decision maker applies his mind to all the facts and how it interacts with the legislation and then acts upon it, in the vast majority of cases by calculating through a computer system.

This decision is then notified to the claimant by a notification letter. It is my beleif that the letter is not the decision in itself. That is why the regulations distinguish between between “Decisions by a relevant authority”, regulation 89 of the 2006 regs and ” notification of decisions”, regulation 90. This seems to be what the Tribunal of Commissioners were saying in R(IB) 2/04, paragraphs 72-82 when they distinguish between the substance of a decision and the decision notice.

The argument we are having is when a contractor makes a decision on one day, is checked by another employee of the contractor the next day who finds it incorrect and is amended, whether the original “decision” should be counted as an error by the Council checking it later. This is before a notification letter is sent out, or payment is made.

The contractor’s argument is that if no letter is sent before the correction, or no payment made, there is no decision. It is the final outcome notified to the claimant which matters, not any action up to the point the claimant is notified.

As you can probably tell, I don’t agree with that. I’m also fortified by the fact that regulation 4(2)(a) of the Contracting Out (Functions of Local Authorities: Income-Related Benefits) Order 2002 states that “…a random sample of decisions on claims [b:c8b542fb5f]made on a day[/b:c8b542fb5f]…” should be checked. If one employee makes a decision on one day, and another states it is wrong the next, surely these are two decisions made on two different days?

Am I right? Wrong? All comments gratefully received

[jmembery]

Sorry Jamcon, I am with the contractor on this one.

Although I agree that a decision notice and a decision are not exactly one and the same thing, a decision has no status until it is notified. For example, the claimant has one moth to appeal from the date of the notice not the date of the decision.

My view is therefore that until the decision notice is produced a decision maker can change their view on a case several times before they have made a “decision”.

[lord smeagol]

In the context of which the question is being asked I would be inclined to go with Jamcon on this one.

There is only no status to the decision until a notification is produced as far as the claimant is concerned, which in my view is not the determining factor on whether a ‘decision’ has been made. A decision has very real status as soon as it’s made because it determines the authorities BVPI’s, from that date. It can of course be altered before the production of notifications and the issuing of money, but that doesn’t change the fact that a decision ‘was’ made.

In the context of the question and the reproduced extract of reg 4(2)(a) where it specifies decisions “made on a day”, I would say that it counts as an error. The fact that the contractor spotted it and then corrected it, doesnt mean that an error wasn’t made.

All in my humble opinion of course

Regards

Mike

[Kevin D]

I’ll play too….. 😕

[b:0e90740062]HBR 89[/b:0e90740062] heads “Decisions by a relevant authority” and then [b:0e90740062]HBR 90[/b:0e90740062] heads “Notification of decisions”. In my view, the structure of the regs (and the wording of them) makes a clear separation between “decisions” and “notifications”. It is also notable that in several o/p CDs, notifications have been at issue in the context of being [u:0e90740062]evidence[/u:0e90740062] of a decision – not part of the decision.

[b:0e90740062]s.34 of the SSA 1998[/b:0e90740062] is headed “Determination of claims and reviews” and refers to the notification OF decisions. Again, I think that creates a distinct separation.

One way around the situation may be to designate the processing of the claim as a purely administrative, pre-decision, function (for either permanent staff or contractors), with the “decision” being made by the checker. The fact that a claim may have been “completed” in terms of being input into a computer system does not, in itself, have to mean a decision has been made. The basis of this suggestion is that the LA makes the decision – not the LA’s tools.

Regards

[Anonymous]

Leaving aside the chicken and egg question of when a decision becomes a decision, I am intrigued that the client side would wish to count errors made by the contractor, which the contractor has rectified prior to payment and notification. What is the point of the contractor making the effort to rectify mistakes if the client is still going to beat them with an error stick on the original mistake?

If you are concerned about the efficacy of the contractor, which seems to me to be the real issue here, it strikes me as unfair that you should wish to do that. From the point of view of the client – and the Council’s customers – surely what is important is what actually “goes out the door”?

I have worked at an authority which had a client/contractor split myself, both on the client side and the contractor side, and was in both instances extremely frustrated on the client side’s insistence on trying to make the contractor look as bad as possible…without realising that, regardless of whether it is a LA employee or a private company employee who does the assessments, ultimately it is the Council itself that looks bad when reporting unnecessarily high error rates.

I would dump the high falutin’ argument about the distinction between a decision and notification of the decision and simply concern myself with the contractor’s end product.

[Mikeb2]

Daft question time.

Bearing in mind my site has never had any dealings with ‘contracors’ yet…

Why does it make a difference who [b:1d95653cb3]made [/b:1d95653cb3]the decision?

Is it a money thing?

[Kevin D]

Mike,

It’s a politics thing…..

Contractors are not universally loved. 😯 🙁 😥 😥 😥

Some LA Benefit Sections simply love to show how “bad” the contractors are. Sometimes they’re right. However, this can be quite funny on occasion when the contractors were previously in the employ of the same LA…. :twisted:.

And, it can get quite brutal – especially when contractors make decisions that are right, but the LA won’t accept it….

Personally, I think Andy I’s sentiment is the one to aspire to. But, too many stats, too many non-doers and a shed load of politics makes it all too easy to spiral down to the blame game.

Regards

[jmembery]

It can be a cash thing to.
In some contracts the contractor must achieve a certain accuracy figure to obtain additional payments from the LA.

[Anonymous]

At the (not to be named) authority to which I referred in my earlier post, it was more primal than money…

At the time the authority contracted out, the client side checking team were told by their senior management that their job was to find errors, and that if they didn’t find errors then they would be superfluous to needs. Very strong motivation for making sure the checking team found lots of errors. It was pointed out to them several times when I was there that what they had been told was nonsense – even if the contractor was 100% perfection itself, there would still be a requirement to monitor the contract.

My own impression, I have to say, was that they simply enjoyed lording it over the contractor, in a way that no benefits manager would permit his/her checking team to behave in an in-house outfit.

[jmembery]

I think you might be right Andy.

I know that back in the late 90s the checking teams in some LAs that contracted out were very motivated to show their senior managers that it was a mistake to have contracted out the service in the first place.

It was a “told you so” type of action.

[Julian Hobson]

Just to get back to the decisions thing. It might be worthwhile considering the concept that all “outcome decisions” take account of several decisions.

Each bit of an entitlement decision (rent, income AA etc) is a separate decision what then happens is that the whole become an “outcome decision” on entitlement. I think the rest is covered above.

[simon]

If each “decision” made totals an “outcome decision” are we obilged to notify the claimant of a change to a “decision” that does not change the “outcome decision” i.e. we alter the amount of Tax Credit used but this doesn’t change the amount of benefit due to them being under their applicable amount.

The reason for my question is our software only issues notifications when “for an existing claimant if there is a change on the claim that affects the amount of entitlement.”

So if we undertake a review or change of circs where we alter income that doesn’t effect entitlement then no notification is sent, but surely the clmt has appeal rights against whatever we have altered and therefore should be notified?

[petedavies]

simon:

I think you probably do have to notify a change of the type you have described. Whilst it may not occur in the type of example you have quoted, other situations may prove more problematic.

e.g. Treating somebody as occupying is time sensitive. You originally decide that entitlement remains between dates X and Y and are making two superseding decisions (the property is not occupied but they are treated as occupying then that they are in occupation again. If you subsequently find Y was too early and the claimant loses entitlement you have an overpayment. I can envision a situation where there could be a sustainable argument on the part of the claimant that the OP was caused by the LA’s failure to provide a notification.

[Author]

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