I have come across a case where the LA has acknowledged a HB appeal, reconsidered the original decision and then written to the appellant asking whether she wishes to withdraw her appeal following sight of the recon notification (which is still negative). The letter also does not (surprise, surprise) advise people to seek independent advice before responding.

I am very concerned about this and the LA has informed me that this is their standard practice in order to reduce wasted/misconceived appeals.

To begin with, regulation 17 (1) (a) of the Tribunal Procedure (First -tier Tribunal) (Social Entitlement Chamber) Rules 2008 requires any withdrawal of an appeal to be sent to a Tribunal. The LA has no power to treat an appeal as withdrawn, only a Tribunal has jurisdiction. Reg 40(1) (b) of the DA Regs in force until 2nd November 2008 contained similar provisions.

Aside from the legalities, the option to withdraw arises when the TAS1 is issued with the appeal submission. It is really only at the submission stage that even an experienced adviser can form a view about whether the appeal is pointless, let alone a lay member of the public.

Many appellants will too easily withdraw the appeal when they see such a letter from the LA, without obtaining independent advice and so it really is inappropriate as well as unlawful.

The practice may also breach the Disability Discrimination legislation because people with mental health or learning disability issues are going to be more likely to find the appeals process stress-inducing and so will be more likely to withdraw when they have an arguable case. I doubt that an equalities impact assessment has been done by the LA.

Has anyone else come across this practice?

This will further endear me to LAs..... (Happy New Year.... ).

Unfortunately, having worked at / with over 30 LAs, the above "procedure", or variations thereof, is not unknown. In my experience, too many LAs still haven't grasped the fact that Tribunals have formal judicial status.

It is, in my experience, all too common for LAs to treat appeals, in the first instance, as internal "reviews" or "reconsiderations". In itself, that isn't a problem so long as the appeals are then forwarded to TTS if the decision is not revised in favour of the appellant. However, I have first hand knowledge of letters being sent to appellants advising that the decision under appeal has been "reconsidered", but the LA believes it to be correct and, therefore, a new appeal is needed.

Some LAs do this in ignorance (after all, it's only 7 years since Review Boards were abolished - LAs need time to adjust....). However, one or two LAs undoubtedly have a deliberate policy of trying to avoid taking cases to Tribunals. More often than not, it is a question to time and/or resources. As for the other cases..... feel free to draw conclusions accordingly.

A classic means of getting rid of o/p appeals is to write off overpayments and inform the clmt the appeal has lapsed as the o/p isn't being recovered. On the face of it, fine. In law, totally wrong as this conflates the two seperate issues of recovery and recoverability.

Perhaps the answer is to have all appeals made directly to TTS, with LAs / DWP then having to follow direction(s) from a Judge. This has potential pitfalls, but the current abuses of process have to be curbed somehow.

Just had an example as described in para 2 of previous posting. I sent an unambiguous appeal letter on behalf of a client with his signed authorisation (ok following introduction of Tribunals, Courts and Enforcement Act 2007 (Transitional and Consquential Provisions) Order 2008). LA responded with an explanation, which included the words "If after receiving this explanation Mr N still thinks the decision is wrong, he can ask to look at it again. This must be done in writing, the request must be signed by Mr N, and be received at this office within one month of the date of this letter."

The simple answer is to get client to lodge a complaint with the LA Ombudsman,

Yes this can be done, but one has to work one's way through the 3 stages of the LA's complaints procedure and then onto Ombudsman. Likely to take at least 6 months.

From private emails I have had, it seems that this unlawful practice is quite widespread among LAs.

The LA Ombudsman has been accused in some quarters of being biased in favour of LAs. I have to say, on the two occasions I used the LA Ombudsman myself, I was none too impressed.

Surely this kind of unlawful action should be challenged by starting judicial review proceedings? The LAs concerned are acting outside their powers.