Tue 03-Nov-09 03:32 PM by suelees

Aug 2006 original decision about an overpayment.
Delay after delay and adjournments agreed to to allow DWP to prep sub.

Nov 07 (late Friday pm) 15 months later we were verbally advised the decision was changed in appellants favour so appeal on the Monday now lapsed.

(I'd written to the Chair to complain about the unreasonable delay and how service provided by DWP left wanting).

Sept 08 DWP out of the blue DWP seek recovery. Client had never received an amended decision so had to jump through numerous hoops to get appeal accepted so late.

Sep 09 appeal eventually admitted with directions for DWP to prep sub within 2 weeks and for hearing to be listed within 6 weeks.

Nov 09 called TS for current status and DWP has asked judge for more time to prep their sub!!

I'm not at all happy with this. It has been a tortuous 3+ years. Is it acceptable to put my own objections to the judge about the appalling way the DWP has dealt with this case (even though in effect it's two different appeals ?)

Tue 03-Nov-09 03:43 PM by Kevin D

I think it is acceptable in the context of Article 6 (unreasonable delays etc).

But, there is a much more substantive issue.

If the DWP has already revised its decision, surely it must be argued a (revised) decision has already been made in favour of your client and the DWP has no grounds to reverse that revision? I'd be arguing the latest so-called decision has no standing in law.

I'd be asking for every piece of documentation, however so held, including all internal paperwork (including, but not limited to, post-its - even if electronically held). I'd be relying on CH/3240/2007 as authority for requiring the DWP to produce.

If the DWP can't / won't produce, I'd be hoping it will say "papers destroyed". On THAT basis, Article 6 becomes a stronger argument (but NOT a slam dunk).

As an aside, there is a certain irony about some case law that I now regularly use against LAs. It's "Anufrijeva" (House of Lords). No notification = no decision. The irony is that if the DWP shows it never notified the clmt, in writing, re the verbal "notification", Anufrijeva probably bites, unjust as it may be.

If you have been invited to comment in respect of the DWP's request, I'd be tempted to argue the history of the case is such that it is reasonable to conclude the DWP is simply procrastinating; unreasonably so.

Thanks so much for your input Kevin but I'm sorry if I didn't make it clear.

Although no revised decision was received they did come up with a duplicate of one which was apparently sent to our client by Debt Management a month after the appeal lapsed. This one shows they reduced the original amount of o/p by £4K for the same period.

We've never had any explanation for the revised decision but our grounds for appeal have been based on exactly the same grounds as the original appeal.

Now as the DWP had prepared their subs for the first appeal then revised the amount they've got full details so why take so long to prep these subs?

I haven't been invited to comment on DWP's request and only knew about it when I rang TS to ask about the delay but wondered whether I could put my two penn'orth in anyway.

As an aside it was heard in the criminal court and the DWP accepted an overpayment of £3K compared to the original £16K (and now revised to £12K)

As an aside it was heard in the criminal court and the DWP accepted an overpayment of £3K compared to the original £16K (and now revised to £12K)

By "accepted" (re £3,000), was this with reference to the ACTUAL overpayment, or merely for sentencing purposes? If the latter, it doesn't prevent the actual o/p being sought (assuming it is recoverable). Just for clarity, say the correct actual o/p was £7,000 and it is prima facie recoverable. It could be that the £3,000 was agreed for the sole purpose of sentencing. If so, the £7,000 is still correct for recovery purposes.

I realise that Kevin but from the info I can glean from our computer system it's a bit vague . The following is an extract from a letter to the client on his crime file which is now in remote storage...

"...the Prosecution finally accepted that you had been overpaid £3000 and you entered a guilty plea on this basis. This was substantially less than originally charged..."

From this I really don't know whether it was an amount accepted for sentencing or not.

So, a trip to remote storage than.... Er, good luck.

oh b***** (I can't do avatars - it's not fair)

Tue 10-Nov-09 01:48 PM by suelees

Ok Kevin, I've got the huge crime bundle out of storage (a bit quicker than Heywood eh!) and managed to go through it.

Unfortunately there's no documentary evidence as to why the Court found he has been overpaid a substantially lower amount than that alleged. Apparently the agent we'd instruced to attend with counsel failed to show at court and it would have been they who'd have provided us with the details of how the court had arrived at the outcome.

However it is noted on file that the barrister confirmed the prosecution had been unable to produce evidence that the client had worked continuously throughout the alleged period. Our client accepted he had been overpaid for some of the period and hence it was agreed on the amount of £3K - don't ask where that came from as I can't tell you.

So it's back to my original post - do you think it's worth me complaining about the time it has taken them to prepare the appeal papers ?

I'm not familiar with the case, so it's a tricky call. But, I'll give it a shot.

Fairly obviously, it won't be a good idea to rile the FtT Judge. But, I think there is a middle ground.

I would be inclined to ask (very nicely) the Judge to issue a firm Direction giving the DWP no more than 14 days (especially given the time the DWP has already had). Further, ask that, if the DWP has failed to provide a sensible submission by that time, the Tribunal considers barring the DWP from any further involvement with proceedings - see FtT Rule 8(7) & 8(8).

The following may prove useful after the appeal.

Parliamentary Ombudsman’s file. Case No – C.164/99

“Misadministration and delay in preparing papers for tribunal

Ms S sought a review of the decision of the Benefits Agency to award her the lowest rate of the care component of Disability Living Allowance. The review was unsuccessful; she appealed to a Disability Appeal Tribunal. The tribunal hearing was adjourned in November 1996 to consider new evidence; but the Benefits Agency did not take account of all the evidence, which has been provided until August 1997. They then sought further medical advice and caused further delay before providing further submissions for a resumed tribunal hearing. In August 1998, the Disability Appeal Tribunal awarded Ms S the lowest rate of the care component from August to November 1995 and middle rate care component and higher rate mobility component from November 1995 for a period of five years.

The Benefits Agency paid her £7,773.40 arrears. The Ombudsman concluded that the Benefits Agency had missed opportunities to identify the evidence they would need and had delayed in preparing their submissions. The Agency made an ex-gratia payment of £385.70 to Ms S to compensate her for the loss of use of those arrears and a further ex-gratia payment of £100 to Ms S in recognition of the inconvenience they had caused her”.

Michael Allen and Brian Thompson - Cases and Materials on Constitutional and Administrative Law – Blackstone press 2001

This is an extreme case spanning a period of approximately 3-4 years. However, the Ombudsman may consider that delays of lesser periods would merit an award of compensation depending on what the reasons for the delay were. Failure to prepare an initial submission within a reasonable time, for instance, may be such a case.

I'm very grateful to you both for these interesting and helpful replies.

and it's still ongoing...

at an adjourned hearing in Dec the judge directed to the respondent to provide yet more evidence within 28 days.

adjurned hearing now listed for next month.

28 days expired over a week ago and yet again (as with earlier directions) they've not complied within the specified time.

I've looked at FtT rules 8(7) & (8) but it reads to me that even if respondent was barred the appeal would proceeed regardless. Am I reading this correctly ?

Is there anything I can do to persuade the judge that enough is enough without aggravating the situation ?

BTW it's ridiculous that the costs and time involved for all parties probably outweighs the actual overpayment now