Its late and the way through is probably easy but I am struggling with a late review request and I can't sort out where to put the emphasis.

Client changed jobs at the end of July - near enough same salary (slightly less). Wife gets ill - all in chaos. At the end of September he took his new payslips to HB. 2 days later he got a revised HB award taking into account double his salary and an overpayment letter. 4 days after that he took in a P45 to show that he is not doing 2 jobs as assumed.

A month later when he got an nsp for rent arrears. He chased it up by phone and was told by HB that reasons for o/p and hb decisions still standing are that he presented his P45 too late. Rent arrears because they only corrected HB from date received HB and are collecting o/p at £23 aweek. He wrote to explain that his wife was ill, by this time mid Nov but they have ignored this.

I've now got myself confused as to what the case is. HB made a wrong decision based on evidence presented after the month's deadline for cocs. He didn't at that point explain why late and then less than a week after decision made presented further evidence to clarify that they were wrong. Someone tell me what an idiot I am being and what I need to appeal.

try official error? HB can't possibly have thought he was doing two full time jobs in one week? or can they? particular if he's gone in and said "i've changed job, here's a payslip from teh new job, i no longer have the old job"

Get the LA to provide a written statement of reasons, in accordance with HBR 90(2) / CTBR 76(2), for its decision - make sure the SoR request is signed by the claimant.

For HB/CTB, there is no time limit for requesting a SoR.

Schedule 1 of The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, provides that an appeal can be made up to 14 days after a SoR is provided. Such an appeal would NOT be subject to the late appeal rules.

Kevin,

I was hoping you would post the above and was tempted to post the same advice but....

Can you clarify something?? I read somewhere (can't remember where but ony last week - I'm turning into a goldfish!) saying that the loophole was about to be - or had been closed but cannot find the info again, if anyone would have info on this I am hoping you do.

Chaos

Thu 10-Dec-09 07:55 AM by Kevin D

In circular HB/CTB A19/2009, the DWP proudly proclaimed:

"From 1st September 2009 the FtT Rules were amended to make it clear the Tribunal has no power to extend the absolute time limit for appealing". This was in the context, according to the DWP, of "uncertainty" as to whether the Tribunal had the power to extend the "absolute time limit of 13 months".

The SI cited by the DWP was 2009/1975.

Contrary to the DWP's apparent intention, the SI does nothing to stop an appeal being made within 14 days of a SoR. The relevant bit in Schedule 1 is "b". The SI amended "c".

The reason HB/CTB appeals can, effectively, be made anytime is simply because there is no time limit for requesting a SoR for HB/CTB (unlike other Social Security benefits). For example:

LA makes HB/CTB decision(s) in June 2001. Clmt requests SoR in November 2009. HBR 90 etc makes the provision of a SoR mandatory. As soon as the SoR is issued, the 14-day "loophole" is instantly engaged. There is nothing in the FtT Procedure rules to prevent this - at least not so far as I can see.

NB: Needless to say, there are some LAs refusing to provide SoRs. There is no legal basis on which a LA can refuse to provide one (unless one has already been produced previously).

Thu 10-Dec-09 08:09 AM by Kevin D

Forgot to mention. Not only does the 14-day "loophole" offer an entirely fresh right of appeal, it also opens a FURTHER 12 month late appeal period.

Kevin,

Thanks for speedy answer, I am now clear and will continue as I had been

Chaos

Thank you all very much for the above - I'll use it to get round the late appeal issue if necessary but I am still confused as to what to appeal.

The overpayment and new assessment decisions made after he took in his payslips were based on an error. This was not an unreasonable mistake for HB to make as both jobs were part time on very low wages.

I originally thought to argue that the presentation of the P45 within a few days of those decisons should have been taken as an intime review request. But I'm sort of lost around his right of review and late presentation of information and that the reasons he was late were not given until a much later date. Or is that all irrelevant.

The overpayment by the way and now rent arrears was about £550.

Keep the appeal simple. Don't get bogged down in substantive technicalities. Once you have appealed, the LA then has to compile a "response" (i.e. submission). That should set out the LA's case in full and you can always offer further argument at that time should any other matters be put at issue by the LA. Suggested sample format:

Housing Benefit / Council Tax Benefit Appeal

My appeal has been made no later than 14 days after your Statement of Reasons and, therefore, is made in time in accordance with Schedule 1 of The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008. Unless you revise your decision(s) in my favour, please refer my appeal to The Tribunals Service accordingly.

I wish to appeal against <name of LA's> decision(s) of <date> in which, amongst other things, the Council appears to have incorrectly calculated my income. In particular, my <type of income> appear(s) to be wrong. <very brief explanation>

<optional - double edged sword> If any further errors are identified by the Tribunal, I ask that those are also addressed during my appeal.

You may be interested to read that I've just had an appeal accepted as valid in a decision by a lower tribunal judge, where the decision was 18 months old but a statement of reasons was requested. However the judge has ordered an oral hearing as to whether the tribunal has standing on fairly spurious other grounds which suggest that tribunals do not like this provision

"However the judge has ordered an oral hearing as to whether the tribunal has standing on fairly spurious other grounds which suggest that tribunals do not like this provision"

Surely it's not catching? You know, the DWP behavioural gene which only allows agreement with the law it wants to agree with.... Antidote: law to be applied as it stands; not as we might like it to be...

I'd say that in 50% of tribunals I represent at the tribunal works out what decision it would like to make and then decides, if at all possible, what legislation it can quote to support that decision.

Really?

do you mean, for instance, the La has taken so long to present a response, if there is any chance of a hint of official error in an overpayment case then there will likely be no recoverable overpayment? (to teach them a lesson!?) or something worse?

I have not had that experience but do remember review boards...

Yes- that sort of thing- examples:

1) rent restriction, tribunal decided to split the difference to keep everyone happy although the legal justification for this was very vague.
2) Sick and very distresse person who failed to report a change was held to have good grounds for doing so, even though law did not really justify it
3) Tribunals often pick their favourites from contrasting test cases
4) Findings of fact are often bent etc.

Sadly, I have experienced variations of the above - both for LAs and for claimants.

On the plus side, the last two hearings I've been to (for a LA) have been conducted quite properly; although the written decision in the second does not quite reflect what it should.....

Joining this length thread sometime after the original question was posted - yes I agree the 14 day limit starts to run once the SoR is produced and can be months or years after the decision was made - provided one has not already been requested.

However, just one point I'm running a case at the moment - the original decision that claimant not entitled was made March '08 - subsequent late appeal - supported by the autority struck out by tribunal as appeal made +13 months after original decision.

New claim also made and awarded on basis of info the authority were not aware of when the previous decision was made.

Now SoR has been provided and appeal made within 14 days.

The authority agree that the loophole is there but have refered it to the tribunal on the basis that the previous tribunal decision striking out the late appeal has concluded the matter and argue that if such a situation were applied generally it would, at least if the particular circumstances were satisfied, allow a claimant the possibility of a second appeal against a decision that had been refused by a tribunal.

Any one got any thoughts on this one?

Thanks