Appealing against decision that HB claim was defective or incomplete

CH/2889/2013 looks to answer my question ...

http://www.rightsnet.org.uk/briefcase/summary/whether-two-years-is-an-unacceptable-delay-by-local-authority-in-forwarding

There are two ways in which a claim might fail for lack of evidence:

- the claimant fails to “properly complete” the claim form, which means it is defective (this includes failure to supply supporting evidence referred to by the form)
- the claim is not defective but the claimant fails to comply with reasonable follow-up requests for supplementary evidence

In the latter case the decision refusing HB relies on an adverse inference: we cannot be sure you qualify so we will assume you don’t.  This clearly attracts a right of appeal as to whether the inference is accurate: “I appeal on the grounds that your assumption I earn £999.99 a week is mistaken - I don’t”.  The claimant gets a second bite of the cherry - the missing evidence can be supplied in support of the appeal.  That is what the decision you have cited above is concerned with.

The situation is less clear when the claim is defective: what is the substance of the decision under appeal - merely that the claim was defective at the time the Council so decided?  Or does the Tribunal start from scratch and give the claimant the opportunity to make good the defect in the course of the appeal?  In CH/3564/2007 the UT flags up this uncertainty of jurisdiction.  It decides with some hesitation that the appeal is not confined to the narrow question whether the claim was defective at the material time, but cites R(H) 3/05 in support of that reasoning.  R(H) 3/05 was concerned with a slightly different point actually.  So there isn’t any confident, decisive authority on this point but it seems the UT is leaning towards the “second bite of the cherry” approach.

Thank you very much!

HB Anorak - 23 April 2014 09:25 AM

There are two ways in which a claim might fail for lack of evidence:

- the claimant fails to “properly complete” the claim form, which means it is defective (this includes failure to supply supporting evidence referred to by the form)
- the claim is not defective but the claimant fails to comply with reasonable follow-up requests for supplementary evidence

In the latter case the decision refusing HB relies on an adverse inference: we cannot be sure you qualify so we will assume you don’t.  This clearly attracts a right of appeal as to whether the inference is accurate: “I appeal on the grounds that your assumption I earn £999.99 a week is mistaken - I don’t”.  The claimant gets a second bite of the cherry - the missing evidence can be supplied in support of the appeal.  That is what the decision you have cited above is concerned with.

Sorry, just another related point on superseding decisions:

The council ask about a non-dep, don’t get a reply, and so assume high non-dependent’s income. This reduces (though doesn’t remove) HB for a closed period, until another change takes effect. Is the claimant here caught by D&A regs (2001) reg 8, about late reporting of advantageous change of circs only taking effect from date of notification? Or again, is there some way that the whole matter be opened up on appeal? In this case, the appeal would be a few months late, and would probably just be on the grounds “look here, my non dep actually had nil income in that period”, rather than any ‘relevant benefit’ scenario.

What is the precise sequence of events you have in mind?

- When did the claimant first have a non-dep
- When was the Council first aware of that
- What decision did the Council then make and when?
- When did the non-dep’s circs change and when did the Council become aware of that?

As best I can tell:
Council are aware of a child in the household who then becomes a 17-y-o not in relevant education. When they turn 18, LA apparently enquire about their status. No reply, so LA eventually make a decision assuming max non-dep deduction, and that a recoverable payment has accrued in the interim. Within this they correctly take account of the non-dep later claiming an income-based benefit, which I guess they picked up off DWP cross-matching. I don’t know if the LA have any evidence of the non-dep actually being an earner at any stage. This was all several months ago, the overpayment has now been recovered.

This client has potential good cause arguments for lateness of appeal, and for not responding to enquiries. However, I’m not sure how an appeal is going to re-open the issue of revisiting the correct entitlement for that period.

If the appeal is entertained at all (usual rules about lateness apply) the Tribunal will most certainly be able to revisit the question of correct entitlement.  There are two ways to look at jurisdiction here:

- the Council has made an adverse inference about the non-dep’s circumstances and the appeal will be about the accuracy of that inference

- a narrower view is that the Council has applied Regs 74(1)(a) and (2) correctly in that it was not unreasonable to think the non-dep might be working and so in the absence of proof to the contrary the max non-dep deduction applies.  You could argue that any appeal against the awarding decision is confined to the narrow point as to whether proof of lower earnings had been supplied at the time, not later in support of an appeal.  Personally I think that is far too narrow a view, but in any case what we are dealing with here is an overpayment in which case underlying entitlement can be applied instead: it would certainly be open to the Tribunal to find that the overpayment should be reduced by the amount of HB the claimant would have been entitled to if evidence about the non-dep’s circumstances had been provided promptly even if the awarding decision technically stays as it is.  See CH/360/2006 for discussion of this point: in an appeal against an overpayment the claimant can produce evidence the Council did not see and the Tribunal can reduce the overpayment accordingly.

The general point here is that you only need to worry about technicalities such as defective claim, termination etc when your ongoing HB entitlement is at stake - you risk losing some or all of the money that the Council should be paying to you.  Where the issue is how much if anything you have to pay back to the Council there are no technical obstacles except for the long-stop 13 month time limit to appeal to the Tribunal.

Thanks again, that greatly clarifies matters.