I'm not experienced in appeals, but am trying to help a colleague. Client (already on HB) notified LA of income increase & received revised notification (running to 17 pages). LA had omitted to include the income increase. Client did not realise this. Overpayment resulted. LA accepted official error but decided client could reasonably have been expected to know of o/p so it was recoverable. Appeal submitted. LA reconfirmed decision and stated "the element of your benefit assessment that you are unhappy with is not deemed as subject to appeal. This is because the Tribunal Service has no power to change this decision because it is based on a Housing/Council Tax Benefit regulation laid down by Parliament. The Tribunal Service can only consider discretionary decisions made by the Council."

We cannot understand this. It seems to us that the decision to recover is a discretionary one - the LA had the discretion to decide whether to recover or not. Any comments or advice would be much appreciated because - if LA is correct - there is no point in going ahead with the appeal.

If appeal is worthwhile, are there any cases which could be helpful please? (I am aware of CH/2935/2005)

Speaking as an LA Benefits Manager I can say that the LA concerned are talking rubbish. The decision that an overpayment is recoverable is very much appealable.

If the LA concerned refuse to send the appeal to the Tribunal Service you can write to them direct and ask that the chair to instruct the LA to forward the appeal.

Jeff

Agreed- I thought I wouldn't be surprised by anything any more but I am shocked a Local Authority can be so misguided.

The business of "discretion" is confusing the issue here. I would have thought the issue of whether an overpayment is recoverable or not is an issue of fact. It is either recoverable or it is not, depending on the circumstances, and this is a finding of fact. If it is established to be recoverable, the council may then choose whether or not to recover it, that is where the discretion comes in.

So I reckon the complete opposite to the council! The decision on recoverability is a factual decision that is appealable, but the decision to then pursue recovery is one of discretion and is NOT appealable!

CH/2554/2002 is often considered the 'lead decision' on the question of whether a claimant could reasonably have been expected to realise an overpayment was taking place and the Commissioner in CH/2935/2005 makes reference to it.

(If I was representing an appellant I think CH/2935/2005 is by far the best Commissioner decision to quote)

To add to jmembery's post, this may help.

A LA has no power to adjudicate whether or not an appeal is "subject to appeal" or not. ALL appeals (with two exceptions) MUST be referred to TTS - even if they are slam-dunk out of jurisdiction (e.g. more than 13 months). Only a Tribunal can FORMALLY decide on the admissibility of an appeal.

In support of jmembery's suggestion to write directly to TTS, assistance may be gained from R(H) 01/07 (aka CH/2812/2005) - para 34.

The two exceptions are:

1) An appeal is withdrawn (only the appellant can authorise this)
2) Following an appeal, the LA revises the decision and that revision is advantageous to the clmt. NB: Must be a revision; not supersession.


Hope the above helps.

Many thanks for the helpful replies.

I should have explained the LA is not refusing to pass the appeal to Tribunal, but the comment I quoted & another that the Tribunal Service would very likely strike it out seemed to us (maybe wrongly)to be aimed at getting it withdrawn.

The Tribunals Service does not strike down appeals which may be out of jurisdiction. They used to have a warning system for doomed appeals but not now.

Anyway, like everyone lese says, it isn't out of jurisdiction. How can there be commissioners' decisions on what claimants ought to realise if it was, eh?

Did I ever mention the local authority presenting officer who, when being asked by the Chair under which of the HB regulations the local authority thought it had carried out a particular action responded, "yes, we're aware of the guidelines, but it isn't always practical to follow them"?

So it just goes to show.

I have a similar case where I have a client who has an over payment of housing & ct benefit where it is an LA error but considered recoverable.

I am just waiting for a date for tribunal. I am about to prepare my submission and wanted to look at the decisions quoted. CH/2935/2005. I looked in the briefcase part of this site and I’m unable to get this case to come up. I know I am doing it wrong!
Can you tell me how to use the briefcase site

Thanks

Carrie

Go into Toolkit. Scroll down to Case Law. Go to Commissioners decisions on Rightsnet. Select Housing/Council Tax Benefit. It is then on the list of unreported cases.

Thanks Derek

So it was toolkit and not briefcase, that’ll be the problem eh!

I’m not sure how this will help me, The decision talks about a reported change and whether a claimant could expect a change in their benefits.

My case was on JSA (IB) and went back to work. Coincidently the LA did a visit review on their claim, they advised the LA’s visiting officer and showed him contracts of employment .

The LA failed to take that information into account & did not re assess the claim. This only came to light much later when it was noticed the LA had failed to include Child benefit income. The LA determined that the Child benefit overpayment was not recoverable but the JSA/ Earnings issue was.

Any clues what to do or where to go...

Ta
Carrie

Is the letter from the LA not trying to say, confusingly, that there is no appeal against their decision not to use their discretion not to seek recovery?

It may seem a strange thing to say of such a convoluted sentence but yeah, that would make sense! And of course be true (though it wouldn't stop it being judicially reviewable)

roecab3 - your confusing sentence certainly managed to confuse me! But, having read it several times, I don't think it is what the LA were trying to say. Their letter specifically says the Tribunal Service can only consider discretionary decisions made by the LA. Which is the opposite of what your sentence means (I think!).

My understanding from the various posts on here is that we can appeal the decision on whether the overpayment is recoverable, but we cannot appeal the LA's discretionary decision on whether or not to recover it. If I've got that wrong, can anyone please say.