In June our client won an appeal against a decision by the local authority that a female friend was a non-dependant in his household, and hence that he should have a non-dependant deduction applied to his benefits.

The same local authority has now decided, on the same evidence, that they are living together as husband and wife. I'm flabbergasted. Has anyone ever come across this situation before?

I'm a little bit confused. A bit more info may help in answering:

- What was the decision following the appeal (i.e. what status was the female friend given).

- Was the appeal outcome a result of revision by the LA, or was it a Tribunal decision?

- Is the LA saying it has replaced its latest decision (i.e. LTAHAW) REPLACES the original decision; or does the latest decision operate from a late date; and/or was a new claim made on which the "new" decision has been made?

Regards

Sorry if my post was unclear.

The decision of an appeal tribunal was that the friend was NOT a non-dependant in the claimant's household, and therefore no non-dependant deduction is to be applied to his HB/CTB.

No new claim was made. The LA has made a new decision, effective from the same date as the earlier one, so I guess this means that it has changed/replaced the earlier decision.

The only question at tribunal was "is she a non-dependant?" and the question of LT was not raised at all, so I believe that res judicata cannot apply here.

I'm lost! If she is living in the house & is not a non-dependent then what is her status (if they are not LT)? Surely something about this should have been put to the Tribunal in order to justify the argument that she is not ND?

The whole point is that she was not living there. She was living with various relatives and spent only weekends with her boyfriend.

Ok. Given that the Tribunal has expressly found that your client's friend did not live at the dwelling, my view is that the LA can only arrive at its latest decision if it has NEW evidence.

However, you have stated the LA is relying on the same evidence that was before a Tribunal.

On that basis, the same basic fact has already been decided (i.e. occupancy) and it would appear that res judicata should apply (er, assuming my understanding of res judicata is correct).

My advice is to take a two pronged attack: a formal complaint and, separately, pursue a further appeal anyway (citing res judicata).

I am still a little unclear here, did the Tribunal decide that your client's friend did not/does not live (normally reside) in your client's household? or merely that they are not to be considered as a non dependant?

I have dealt with this problem before! Sadly too often, if they cannot assume you to be living as man and wife, they will assume a non dependant deduction. And vica versa!

The problem usually stems from a Local Authorities definition of how long a person can stay in a property before assuming them to be a memener of the household.

This is especially difficult when someone lives in many different places during the week. The only way i could resolve this was to ascertain where my client spent a substantial portion of the week days.

Often a complaint to the LA will speed this through, but their first argument is to state that they want to know the main address the person is using.

Surely they should not be "assuming" anything? They should get the facts before coming to a decision, should they not?

Got your email.



Sorry it's taken so long. Just in case you've forgotten what all this is about see http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&;forum=102&topic_id=5410&mesg_id=5410&page=

I have now retrieved the tribunal's decision from the file. It reads:

'The decision of the Respondent in relation to Housing Benefit issued on (date) is revised. (Name) is not a non dependant from 20 January 1999. There is no overpayment of Housing Benefit.'

and similarly for CTB.

As you can see from the date from which the LA sought revision, there is a considerable sum of money at stake here.

The decision does not address occupancy.

Any help/advise gratefully accepted.

Ruth.



Please see Kevin's post above, you may wish to ask how the La has come to this conclusion/decision and evidence they have.


In any case an appeal would mean that the evidence would be divulged.

Sadly, if your apepal was in June you are now too late to make an application to the Tribunal for a full written statement as there is an absolute time limit of 3 months from the date of promulgation of the decision. This might (should) have established what facts the Tribunal found to be proved and why.

The absolute time limit may have passed, but there may be nothing to lose by asking, really really nicely, the Tribunal to issue an extra-statutory statement of reasons.

It may be worth approaching a late request along the lines of "We are aware of CH/2553/2005 <para 24> which confirms there is no duty on the Tribunal to accede to a late request for a statement of reasons, but it would be very much appreciated if the Tribunal would be kind enough to issue such a statement in an extra-statutory capacity".

Separately, it *may* be worth a shot at establishing if the record of proceedings is still available.

Hope this helps.

The rules of revision/supersession will mean that the LA must prove the grounds for revising or superseding before going ahead.

It was held in R(S)4/86 that a distinction had to be made between primary facts, mistakes as to which could provide the grounds and secondary fact that are derived from them and which may form the bais for an outcome decision.

Alleged mistakes as to secondary facts are not grounds for revision or supersession.

There can be no revison or supersesion on the basis of a mistake as to the law because the decison is of a Tribunal. The remedy for the LA is an appeal to the Commissioner.

I would just appeal the new decision on the basis that the LA has no grounds for revison or supersession

Grateful thanks to all contributors. I'm following up on your helpful suggestions.