brain dead and scratching my head...have 3 inter-related questions if any one out there would very kindly give me their two cents worth...

1. if a lodged appeal results in a reconsideration and change of decision but the outcome was still no guarantee credit entitlement (income exceeded by a lower amount) should the appeal lapse?

2. If a letter says -
"If you want to know more about this decision or if you think it is wrong.

Please contact us at the address shown and we will give you an explanation. You should contact us within one month of the date of this letter, or we may not be able to consider any dispute. Further information on the the disputes and appeals process can be found in leaflet GL24 If you think our decision is wrong, which you can request."

does anyone think this advises a person that their appeal has lapsed and of their appeal rights?

3.if somebody appealed against an uprating notification (with appeal rights) but the disputed capital decision was made more than 13 months earlier, does anyone know the authority for the appeal being invalid or out of time?

cheers

Well from one brain dead to another.......

Not quite sure what the question(s) are.

If you are asking if the wording of the appeal rights are unclear the answer is -YES.

If you are asking if an appeal can be satisfied by a reconsideration leading to the same decision albeit with a different calculation then the answer is NO and the DWP should proceed to Appeals service.

By the way - how can income be execeeded by a lower amount?

hi derek - thanks, that's what i thought...

sorry for not making that clear, : ) what i meant was that there was no entitlement to guarantee credit because income exceeded the applicable amount, and the reconsideration changed the calculation so that income still exceeded, but by a lesser amount. phew!

I agree with the comments in the above post.

With regard to your third question, I assume this is a notional resources issue. In civil law, there's a principle of 'res judicata' which prevents litigants going back to re-litgate a question that has already been decided. So if a decision was made about capital resources and not appealed in time, any future decision would be bound by the previous decision on capital. You can still try to find grounds for any time revision, and check diminishing capital rules have been applied correctly. Also look at CIS/2540/2004 which addresses this issue (but I haven't checked whether the regs have been changed since this decision).

thanks. it's an actual property valuation - the case i posted about on the Pension Credit thread. His original appeal was lapsed as described above, and when he made a later appeal, they had it ruled out of absolute time limit from the original decision, which he has never had the opportunity to dispute at a tribunal.

i may have to seek it's reinstatement... although it should not be necessary...

In that case ... given that the value of property keeps changing, has he made a fresh claim based on an up to date valuation? Although since the original appeal should not have lapsed, you should be able to get it reinstated and heard.

Just seen your post under pension credit and realised the full circs. Obviously can't make a fresh claim as on benefit already so you're looking at revision/supersession (maybe on the basis of getting legal advice as previously discussed. Still worth trying to get the original lapsed appeal reinstated. I'm not quite clear on how the later appeal fits in, is it really relevant?

no, i think you're right - it's the original appeal which is the issue - it shouldn't have been lapsed as far as i can see...there have been many opportunities for revision, but they have not been taken...i think the rejected out of time appeal may have been sent back to Pensions Service to be treated as an application for revision - the D-M refused to revise, and advised there was no right of appeal...which there is...i'm still trying to get them to revise, but they are keeping me in the dark...i'm getting tetchy because the clock is ticking...

In CIS/3655/2007 the commissioner stats

“Res judicata

1. This is a principle that provides for finality by prohibiting an issue that has once been decided to be raised again between the same parties. It has no place in social security law, because it is displaced by section 17 of the Social Security Act 1998:
‘(1) Subject to the provisions of this Chapter, any decision made in accordance with the foregoing provisions of this Chapter shall be final; and subject to the provisions of any regulations under section 11 above, any decision made in accordance with those regulations shall be final.

(2) If and to the extent that regulations so provide, any finding of fact or other determination embodied in or necessary to such a decision, or on which such a decision is based, shall be conclusive for the purposes of-
(a) further such decisions;
(b) decisions made under the Child Support Act; and
(c) decisions made under the Vaccine Damage Payments Act.”’.

Thus the outcome decision is final. But I cannot find any regulations that have been laid under section 11. Therefore, from the terms of sub-section 2 any determination necessary to a decision is not final and the determinations necessary to the original decision would need to be scrutinized closely as a determination necessary to the original decision maybe opened up in the appeal against the second decision.

An alternative route could have been a supersession of the original decision on grounds of ignorance of or mistake as to a material fact.

Have I understood you correctly Jan?

i'm sorry Paul - i think i must be confusing everybody...i'm trying to work out plan B in case the Pensions Service insist on being obdurate and idiotic. Plan A is very simple...i have shown them grounds (error in law and mistake as to material fact) for revising the decision...they can do that, smartish, and everybody lives happily ever after...but i'm not sure they can be arst

i've seen the valuation docs now - valued in 04 at £95k from 03 and £100k from 04. Client's deemed share (by the valuer) was 50%. He's shown the deemed share for joint ownership (half the above figures) and the actual undivided share (common ownership) with the mysterious valuer's adjustment to £34,500 and £36,500. the D-m originally, i think, took the deemed share and divided it by 2 (less 10% sale costs) and when client appealed in 05, took the undivided share and divided it by 2 etc - seems a fairly puddled approach. No details of what they told the valuer, or evidence of market etc...and no regard to DMG 84258 (the SPC volume version of the para i quoted on the other thread - identical) which takes account of increased or decreased beneficial shares due to not paying to acquire the asset being valued.

also, there is a note on the appeal to the effect that the dates quoted by the claimant (re purchase date and leaving wife date) are different to the dates he told the VO - said purchase in 1967 and living there 20 years, so definitely has an interest. this is incorrect - he and wife lived there together for several years (n/k how long) but they were renting. i've confirmed the purchase date which is verified, and you'll know right to buy came in with Thatcher...

taking his capital down from £23k+ to £18k+ did not change his non-entitlement to guarantee credit - his income was still too much using either figures - but they lapsed his appeal, and re-appealing got overlooked...so client has never been to a tribunal with his dispute

somewhere along the way, not clear how this happened, his HB got reinstated in error...but the error was discovered some time later when he changed address...client got an up-rating notification, with appeal rights, spotted the tariff income thingies, and appealed...more than 1 letter of appeal.

Pension service decided this was an invalid appeal, he could not dispute the capital decision because it was more than 13 months after the original (revised) decision. The tribunal ruled it out, then ruled one in, because of special circs, then a week later struck it out...

may have returned it to PS saying treat as application for revision or client may have sent another letter asking for revision (why do you keep ignoring what i tell you...?) D-M refused to revise (reasons n/k) and advised client he has no right of appeal against a refusal to revise. (The tribunal of Commissioners said otherwise in R(IB)2/04.)

He had a HB appeal which he lost - Tribunal very sympathetic but HB regs bind them to the SoS's assessment of capital and income - so still no hearing of the crucial issues.

i don't think could be res judicata in any event - it has only ever been decided by a D-M, and i don't think they are saying that it is r.j.(not saying much at all at the mo) but i think they have up to now refused to change their decision because they took advice from ACI before making it, so 'it must be right'. in fact, the ACI advice covered 2 specific questions asked, told them Matrimonial Causes Act didn't apply, and disregard under para 4 didn't apply, and other than that was fairly abstract. i could bang my head...

anyway, i think there has been a breach of Art. 6, and i could get original (lapsed) appeal reinstated, if necessary...just hoping client hasn't lost his home too, by the time they make their minds up what they're doing and let me in on it...

(bet you wished you hadn't asked...)
thanks for the above.