Carer’s Discount for CT

This is something that people on the Benefits side in local authorities have been investigating in some depth as it is relevant to CTR from 1/4/13.  It appears that there is nothing in Council Tax billing or enforcement legislation that acts to limit advantageous account adjustments at all.

The policy of only awarding discounts for the current and last year is one I have seen before and I believe it may be linked in some vague way to Reg 11 of the Admin and Enforcement Regs which requires people who are benefiting from an exemption and realise they shouldn’t be at any stage within the next two years to report their misgivings within 21 days.  But this is part of the enforcement regime for people who aren’t paying enough Council Tax.

I soke to revenues officers from quite a few authorities while researching CTR and some of them conceded off the record that they back down when someone pushes their case because they know there is no legal basis for refusing to adjust the account.  It seems the way to test whether the Council is prepared to back down is to appeal to the Valuation Tribunal as soon as the Council’s two-month deadline for resolving the dispute expires.

The most extreme example I discovered during my research was a case where a tax payer claimed she was due a student exemption for the 1993/94 tax year - 20 years ago.  Her chances of winning her appeal were slim because she has to prove that she was entitled to the exemption and that she did actually pay her Council Tax at the time.  Apparently not even the Council retains account records from that long ago.  But if she can overcome the huge evidential burden there is no legal time bar preventing the Tribunal from upholding her appeal.

Previous relevant thread:
http://www.rightsnet.org.uk/forums/viewthread/2875/

Will try and track it down but if memory serves recently the president of the Valuation Tribunal decided a case and effectively limited backdating of discounts to 6 years.

Found it.

Arca V Carlisle City Council.

Have you got a copy of that decision?

New year - thread resurrection time.

Applied for SMI exemption and it’s been awarded from November 2009. Two issues with this.

1) The date allegedly cited by the GP is very precise and I don’t think it is the date cited by the GP. In fact it’s the date benefit started. No reason for the GP to know that at all. Indeed in other documents completed by the GP for travel pass purposes at the same time as the GP certificate required completion there’s no mention of that date. I have asked for a copy and been told to get the client to request a copy under DPA. Have challenged this as nonsense given that employer line is that this adds to the queue of requests and could be avoided given that we’re a part of the same organisation. Awaiting a coherent response on that and an actual copy.

2) Requested a recon. back to 1994. Line taken is that they can go 6 years before the application, which was made in June 2014 i.e. 1 year earlier than he already has. They are citing s9 of the Limitation Act 1980, although clearly what they’re really citing is Arca v Carlisle.

I’m happy to pursue this to VT and indeed the Information Commissioner if necessary but initially I’ll be awaiting a copy of the GP certificate and writing to the GP to get very specific confirmation that the client qualified way back and to DWP to get confirmation of continuous receipt of a qualifying benefit (again, not an issue). However, Arca v Carlisle seems to have been barely tested (based on some superficial net searches and The Civil Court Practice 2014).

Anybody any knowledge of contrary caselaw and thoughts on challenging the 6 years? What is the status of a VT decision? Obviously the decision of one VT doesn’t bind another but does it bind a CT decision maker?

Especially galling as prior to Arca v Carlisle I managed to get a client SMI going back to 1993 in similar circumstances. 

A VT decision does not create binding prcedent for other VTs, but in the Arca case it appears the President took a personal interest and so in practice other Tribunals will follow the approqach he took in that case.  As far as I can tell he didn’t back it up with any practice statement/direction, but I imagine all the clerks and panel members will be aware of his view.  So unless someone takes it further I think VTs will take the view that s9 of the Limitation Act applies to Council Tax disability reductions and similar adjustments.

This is what s9 says:

9 Time limit for actions for sums recoverable by statute.

(1)An action to recover any sum recoverable by virtue of any enactment shall not be brought after the expiration of six years from the date on which the cause of action accrued.
(2)Subsection (1) above shall not affect any action to which section 10 of this Act applies.

(Section 10 is not relevant to Council Tax).

I wonder whether s28 and 38(2) would help in a case where an SMI exemption is sought?  This delays the commencement of the normal time limit during any period when the person lacks capacity to act.

Had already captured the wording but thanks anyway.

I’m wondering whether there’s any mileage in an argument this is not a sum “recoverable by statute”?

Also looking at whether there’s any kind of equivalent to a claim in the alternate e.g. where the Council declining the discount at this late stage is the same one that was actively involved with the clients mental health issues over a period of years; knew they were in receipt of qualifying benefits in a variety of contexts and could have identified entitlement to SMI a long time ago.

There’s a related issue in that there have been overpayments of IS, HB, CTB for a period which is now covered by the initial SMI award. These o/ps and related admin. penalties are being challenged as there was no evidence in the IUC of the claimant knowing the material fact.

My initial challenge on this has not mentioned SMI as the intent is to get the O/Ps refunded on basis of client not knowing the material fact and then referring to a solicitor for PACE breaches as well as maybe looking at an Ombudsman case.

And the other obvious questions.

1) S28 extensions???

2) Burden of proof/extent of evidence required for a backdate?

In the case of HB and CTB overpayments the client not knowing the material fact isn’t sufficient on its own to escape repayment: you need an official error.  The corporate left-hand-right-hand argument hasn’t fared too well in HB appeals concerning single status salaray awards: the UT takes the veiw that an official error means something closely linked to benefits administration.

Trying to track down the Arca case to see whether s28 was addressed by the VT.  I think it was written up in a VT house journal, I’ll keep looking.

Arca wasn’t named but I think it was in issue 28. The summary makes no reference to s28 and I do think that’s potentially a way in for me.

In this case

- the IS overpayment was on a failure to disclose and the HB/CTB O/ps flowed from that.
- it’s not hard to find an error as the IUC was embarrassing and contained nothing that would allow so much as a super let alone the threat of a fraud prosecution which brought forth admin. penalties.

As it happens the SMI award means the client wasn’t liable in the period in question anyway so I’m not overly concerned about that aspect. If they refuse to budge on the recoverability I’ll throw in SMI award at that stage.

Intention is to get back every penny of the alleged O/ps x 3 and every penny of the admin. penalties and then pursue as described previously for compensation. Intention is to also secure SMI as far back as possible for someone who had no possibility of doing it themselves.

The Arca decision is attached, if anyone wants it.

I was looking at it, because we have a client who has received CTB overpayment decisions covering back more than 6 years. In the event that our client can successfully apply for a backdated SMI exemption, does anyone have a view on whether Arca will prevent the exemption defending the entire CTB overpayment?

I am using it for a similar reason, albeit that there’s no way the overpayment should ever have been recoverable in the first place.

My view at present is that I have only been able to find one VAT that followed the decision and many LAs are either unaware or paying up anyway. Also, it’s caselaw. It doesn’t appear to have binding weight although some presidential interest was shown in it. I also think the failure to consider 28 is an issue.

The CPAG Council Tax Handbook says that “a disability reduction can be backdated up to six years”, citing Arca. Mrs Arca got her six years’ refund, but failed to get a C Tax refund for the period longer than six years ago.

In my case, CTB in relation to 2008 is being claimed back from the resident. The wording in the handbook suggests that if my client applies for an exemption now, it can only be backdated up to six years. But the six year limitation is in the context of the resident making a claim on the council, not the other way around, so I am not convinced it applies?

My case that started this thread - we now have the VT decision on it - copy attached.
Carer’s Discount backdated to 1996!