Hello

I have a client who has an ongoing tax credit problem the upshot of which is that she is being paid manually and all of her award letters are wrong - this has been going on for a year, but this is not the reason I'm posting. The problem is that the customer liaison and support (grants) office at Glasgow City Council is refusing to pay EMA to her son because she cannot produce evidence of her tax credits award. I have manged to persuade every other office within the council to use the dedicated tax credits phone line to get information they need for HB/CTB etc, but it seems that this office will not use it because:

"The Council is required to evidence the validity of payments and procedures and is therefore subject to stringent audit scrutiny internally and externally to ensure compliance. Therefore it is not possible for us to obtain information regarding Ms ...'s tax credit award via the dedicated phone line. We require original documentation at all times"

Any ideas?

Although distinguished, the following dicta from the House of Lords decision in Kerr should apply to all claims by a citizen to a public authority for a benefit, allowance or advantage under a civil law jurisdiction, although there might be some unusual exceptions.

“61. Ever since the decision of the Divisional Court in R v Medical Appeal Tribunal (North Midland Region), Ex p Hubble <1958> 2 QB 228, it has been accepted that the process of benefits adjudication is inquisitorial rather than adversarial. Diplock J as he then was said this of an industrial injury benefit claim at p 240:

"A claim by an insured person to benefit under the Act is not truly analogous to a lis inter partes. A claim to benefit is a claim to receive money out of the insurance funds . . . Any such claim requires investigation to determine whether any, and if so, what amount of benefit is payable out of the fund. In such an investigation, the minister or the insurance officer is not a party adverse to the claimant. If analogy be sought in the other branches of the law, it is to be found in an inquest rather than in an action."

62. What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.

63. If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof. The first question will be whether each partner in the process has played their part. If there is still ignorance about a relevant matter then generally speaking it should be determined against the one who has not done all they reasonably could to discover it. As Mr Commissioner Henty put it in decision CIS/5321/1998, "a claimant must to the best of his or her ability give such information to the AO as he reasonably can, in default of which a contrary inference can always be drawn." The same should apply to information which the department can reasonably be expected to discover for itself”.

i'm at home with my nasty little viruses at the moment, but i'm a sad case...and i hate it when vogons throw their weight around...

the Council is required to act reasonably at all times, and requiring evidence that doesn't exist (because another statutory body has a maladministering computer system) is not reasonable. the other determining authorities of the same council, who are subject to equally stringent auditing procedures have acted reasonably. as well as Kerr and the other legal authorities Paul has mentioned, there are a number of decisions on the verification framework which put verification in its administrative context and make clear that it is not law. sorry i can't give their references as i'm not in the office - Commissioner Jacobs gave more than one decision, i think...
the council should also not operate inflexible and rigid policies which deny the use of discretion.
as long as they record their reasons thoroughly in their award records, any auditor should be satisfied - the purpose of the audit, after all, is to ensure that payments were correctly made or _correctly withheld_ - the procedures are a means to that end and are not the end in itself.

One of the decisions Jan refers to is CH/5088/2002, and, it is one of commissioner Jacobs.

Thank you both - there's nowt like ending the week with a self righteous fight with a bureaucrat. Hang on, that's my whole life...

A wee update on this:

After sending the council a (lengthy) discourse based on Nevip's and JJ's arguments above (thank you and thank you) complete with commissioners' decisions and house of Lords ruling I've just had a phone call from the head of all bureaucracy at the council who says "there appears to have been some mistake" and that her minions were being over zealous in the application of council policies and that the EMA with backdating is now in payment.

Ah, the old "blame somebody being paid less than you" defense, dontcha just love it?

Excellent! Will there now be heads on spikes draping the castle walls?

She sounded as if she was thinking of something much worse...

Whilst we are on the subject of EMA the Low incomes Tax Reform Group is trying to get a more responsive EMA for England, Wales and NI.

If you lose your job and your income was reasonably high previously the system, using tax credits as a base, does not recognise your new situation, In Scotland, you can put in a revised claim if you have had a significant drop in income.

I'm looking for examples of hardship and am trying to stir up the DCSF and opposition politicians following some hard cases referred to me.

Any help gratefully received.