Theatre of the Absurd?

This is a belter.

http://www.rightsnet.org.uk/briefcase/summary/meaning-of-change-of-circumstances-in-regulation-671-of-the-council-tax-ben

Priceless.

What on earth possessed them? I’d love to know what the thinking behind it was.

Points for getting “Kafkaesque” into an upper tribunal decision.

This is a pathetic excuse for wasting public funds and, in any event, does not explain why it made this appeal when it had a decision of the tribunal that it could rely on.  If the discretion had been exercised and the claimant informed, a lot of time and money would have been saved.

Blimey, that’s some pretty strong words but also patently true ones….

Could have been handled with a bit more sensitivity, but there is actually a worthwhile point of law behind it. Perhaps the council was willing to “take one for the team” as it were in order to clear up this longstanding FAQ. Don’t have time to set out the full analysis this week, but HB practitioners have often debated whether this event requires one or two superseding decisions. Wasn’t my case, but I can see why someone felt it needed the UT’s input. Will post more on this next week.

As promised, here is some analysis suggesting that the Council in this case had not completely taken leave of its senses.  What they should have done (and I hope they did, it might not have been clear to the UT judge from the papers) was assure the claimant that there was no suggestion he would have to pay any extra Council Tax, that the FtT decision was being implemented anyway, but his case presented an opportunity to clarify a tricky question which does actually come up a lot in one guise or another.

The problem stems from the fact that in 2001 HB adjudiction migrated to the new decisions and appeals framework (two years behind DWP benefits), but a chunk of effective date rules was left behind in the principal HB Regs instead of the new HB&CTB; D&A Regs 2001.  This gives rise to conflict and overlap.  In HB Reg 79 there are still, as there have always been, rules setting out when a change of circumstance takes effect from - about a dozen events, including cases where two or more of them coincide in the same week.  But these rules do not in themselves provide a ground for a superseding decision: for that you need to look to Regs 7 and 8 of the 2001 D&A Regs.  There we find that a general “change of circumstance” (including the dozen or so events listed in HB Reg 79) is just one of many different grounds for a superseding decision, all having effect from different dates under Reg 8 - sometimes next Monday, sometimes last Monday, and sometimes on the precise day of the event in question.  D&A Reg 8 and HB Reg 79 are crying out to be merged and thinned out a bit - there is no need for Reg 79 to be where it is at all, it belongs in D&A Reg 8 which could in any case be shortened considerably .  But until that happens you can get cases like the one that started this thread.

In this case, there are two grounds for a superseding decision: a generic change of circumstance (which covers the claimant ceasing to be entitled to JSA-c), and the commencement of another benefit: ESA-c.  Each has a different effective date: the commencement of ESA-c runs from the exact day on which it happens, while the end of JSA-c goes to the following Monday.  If the outcome is the same any way, what’s the point?  Is it even possible to make a superseding decision which does not materially alter the outcome in pounds and pence?  This seeming pointlessness is what seems to have infuriated the UT Judge

But the way the Council saw it, there were two separate events which fell to be taken into account from different dates: for part of the week in which ESA commenced, it was correct to take into account two items of income at the same time because the commencement of ESA has effect from the day it happens while the end of JSA runs to the following Monday.

I have always believed that you really only need to make one superseding decision in this type of case because only one thing has happened: the nature of the claimant’s contribution based benefit income has changed from JSA to ESA.  You have a choice of grounds and a choice of effective dates, but you only need to use one. Or, if the rate of the two benefits is the same (as it was in this case), perhaps you don’t even need to do that: just change the income codes on the system, suppress the decision notices and leave it there.

The Judge has gone with the common sense view so now we know.

It needed a UT decision, but if I had been handling this for the Council I would have made it very clear that the appeal was being pursued in order to clarify the wider point of law and not because the Council wanted to make a principled stand against this claimant and nail him for every penny of Council Tax.  I cannot believe the Council didn;t take that approach - I am sure it’s just that the UT judge didn’t see correspondence which was extraneous to the academic point of law.

I completely agree with that analysis.  Nevertheless, taking an event which doesn’t alter entitlement (such as a switch from one means tested benefit to another) as a (legal) excuse to supersede a decision to change the position of a claimant, one way or the other, is, in the words of the Supreme Court in Anufrijeva (on another point) “legalism and conceptualism run riot”.

“It needed a UT decision, but if I had been handling this for the Council I would have made it very clear that the appeal was being pursued in order to clarify the wider point of law and not because the Council wanted to make a principled stand against this claimant and nail him for every penny of Council Tax.  I cannot believe the Council didn;t take that approach - I am sure it’s just that the UT judge didn’t see correspondence which was extraneous to the academic point of law”.

You would hope that this was the case.  The fact that the council didn’t, militates against it and is probably what annoyed the judge as much as it offends against common notions of justice, common sense and law.

“Nevertheless, taking an event which doesn’t alter entitlement (such as a switch from one means tested benefit to another….”

That should read “or in this case, another benefit paid at the same rate.”