I have a client who has an overpayment appeal which is over 2 years without being decided upon. During this time some recovery has been made against the alleged overpayment. I have sent a letter to the local finance section to have these stopped and refunded back to her as housing benefit.
I have also requested that due to the time delay, the operpayment should be withdrawn as there would be a breach of natural justice to my client as she would be unlikely to be able to provide or produce the information required to dispute the overpayment. I have also suggested that thios would breach her Human Rights in that it would lessen her ability to have a fair hearing and the inability for her to provide information, would also restrict her right of Equality Of Arms, under the HRA. If anyone has any other information Regs or case law, I would be grateful for your assistance.
IS THIS THE LONGEST DELAY IN AN APPEAL CASE???

Playing devil's advocate....

I doubt that this is the longest delay - especially with one or two of the issues still being considered in Commissioners' cases. But, in fairness, I'm guessing.

As for the HRA, I'm not convinced that this would be a successful argument in this case. My reasons for this view are mainly based on the comment that the appeal has in fact been made. If that is so, the grounds of appeal and evidence should have been provided at the time of making the appeal. In turn, it would seem difficult to (successfully) argue that your client has been prejudiced by the subsequent delay.

Noting your comment about recovery being effected, this is not necessarily illegal, but it is frowned upon by the DWP and the LG Ombudsman.

I would be interested to know why an appeal has not been "decided" after 2 years though. Has the LA referred the appeal to TAS? If not, er, why not? If yes, when? And also if yes, why are TAS delaying? If the LA are sitting on the appeal and it hasn't been referred to TAS (& assuming the appeal was properly made etc), I'd ask them to refer it immediately. Complain (formally) if they won't and can't/won't give good reasons for not referring.

Caution: the above is, of necessity, a broad brush-stroke and is NOT a detailed analysis of the law.

Regards
Kevin D

I submitted my first appeal - admittedly against recovery from us as a landlord - in November 2001. I've submitted countless similar appeals since then. I've had no more than four TAS1 forms sent, and not a sniff of an actual hearing date.

As none of the overpayments have been recovered or are being recovered at the moment, I can't say I'm too bothered by the delay.

I claim my £5 longest outstanding appeal prize.

A detailed analysis of Article 6 in this context was given by Commisioner Turnbull in CIS4220/2002.

He concluded:
"25. By way of summary, therefore, I reject the Secretary of State’s contention that, for the purposes of the requirement in Article 6 of the Convention that a hearing take place within a reasonable time, time necessarily only begins to run when a social security claimant appeals. In the present case time began to run when the case was referred to a decision maker for decision of the supersession issues. However, the time which elapsed between then and the Tribunal hearing was not of sufficient length to cross the threshhold which renders a detailed assessment of reasonableness in the light of all the circumstances to be undertaken. The Claimant’s appeal therefore fails."

The time between making the appeal and the Tribunal hearing was 19 months

If the appeal has been made by the claimant but papers not produced by the local authority (and presuming you want them to be) then you can write to your local Appeals Service Regional Chairman's clerk and request that the Chairman make directions to the local authority to produce a submission under Regulation 38(2) Social Security and Child Support (Decions and Appeals) Regulations 1999 which gives chairmen a wideranging power to direct parties to expedite matters what need expediting (applied to HB via Reg 23 (1) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001). The chairman can list the appeal so in theory it could be heard without a local authority submission. In that case you could provide the relevant documents necessary for a tribunal to hear it, the local authority might not believe it would happen and not turn up, and if you have a good case you may well win.

I'm more bullish than others about the right to recover before an appeal is heard. I think the cases R(s)2/74, CIS/2654/99 and R(SB)5/91, where it was said that there was no right to recovery before an appeal was heard are highly persuasive, even though not about HB.

But I would always complain to the ombudsman, who has been rude on numerous occasions about councils that recover while appeals are in progress.