OVERPAID COUNCIL TAX SUPPORT, OFFICIAL ERROR

Exceptional Hardship Payment or Exceptional Hardship Fund are terms that many local authorities use to describe discretionary reductions under s13A(1)(c) of the LGFA: it is not a separate or additional statutory scheme.  I don’t know where the term originated, as far as I am aware it doesn’t appear in any legislation but a lot of councils use it.  There is typically a published policy indicating who is likely to qualify for a discretionary reduction - I think in some two-tier areas there is a county-wide policy because the county put up a lot of earmarked cash to fund these awards.

thanks HB that makes sense, we are back to asking for a section 13a and appealing if refused. my LA are making a big play about CTR not being a ‘benefit’ and so the rule son official error no longer applying to such cases, my view is that it IS a locally administered benefit and appeals against official error are appropriate. you can call a benefit anything you like such as a tax credit, !!!

Valuation Tribunal staying cases as they are not sure on Jurisdiction, does any one have any info on this please

I think I would need a lot more specific information on how you’ve filed the appeal etc to comment on that.

If your appeal is specifically against an exercise of s13A discretion, then you can rely on the decision of the President in SC and CW v East Riding which puts the issue beyond doubt:

“14 Accordingly, I cannot see any basis for questioning the Tribunal’s jurisdiction to entertain appeals in respect of a billing authority’s decision to refuse discretionary relief or regarding the amount of any relief granted, including its duration.”

If you’ve framed the issue more broadly or if you are appealing a discretion to recover an overpayment, then there could be something else going on.

If your client’s appeal has been stayed, then whoever is exercising judicial authority should have provided you with an explanation of why it has been stayed and when the stay will be lifted.

I have had an email from Tom Royston at Garden Court North Chambers who advises -

‘The test case on the VTE’s jurisdiction in these sorts of appeals was heard on Monday (I was representing the appellant) and judgment has been reserved - I would guess it will be at a minimum some weeks, and possibly months, before the decision is out.’

Are there any developments on s13 appeal jurisdiction?

edit: this recent thread suggests not?
http://www.rightsnet.org.uk/forums/viewthread/9861/

As far as I am aware the position of VTE President is still vacant.  The Tribunals take their steer on these questions of jurisdiction from the President, either through practice statements or through the President’s personal involvement in hearing appeals (like the East Riding case referred to above).  The East Riding case is not case law as such (the VTE after all is only a first-instance Tribunal hearing appeals on facts and merits), but in practice it acts like case law because the VTE will abide by its President’s decisions and associated practice statements until a court says different.  That’s why you see legal big hitters like Jan Luba and Tom Royston involved at this level.

So until there is a president in a position to make some kind of pronouncement on this I think CTR applicants are left with the “fudge” of presenting a challenge to recovery of “excess CTR” as an application for a discretionary reduction where it is now accepted that the VT has jurisdiction.

I would guess that the outcome of any lead/test case might be that perhaps this procedural loop should be excised - the VTE can look at discretion as part of an appeal against a CTR decision that was not expressed as a refusal of a discretionary reduction in order to save everyone the bother of a separate application and local dispute.  But that’s just speculation on my part - as far as I know we are no further forward than we were in January.

I’ve emailed Tom Royston (who represented the appellant) to ask if he has any indication…

Thank you both ...

CTS decisions are not published. However I think the position is now clear. No right of appeal against an overpayment but a clear right against a refusal to grant a discretionary if that has been applied for.

“The VTE Vice-President noting that
the entitlement to CTR for the two
years was now in line with the BA’s
CTR scheme, had to determine as a
preliminary issue whether the appeal
should be struck out as having no
reasonable prospect of success. The
Vice-President further noted that
there can be no overpayment of
CTR; a downward adjustment in CTR
awarded means an underpayment
of the council tax for which the person is liable.

Under the council tax benefit regulations, benefit “overpaid” as a result
of a “official error” was recoverable.
That terminology disappeared when
CTR replaced council tax benefit in
2013”

No right of appeal against an overpayment

Just to clarify that, presumably there can still be disputes about whether or not entitlement is “in line” with the scheme? Otherwise, if, for example, the council and claimant disagreed on whether s/he owned excess capital or had a partner, which venue can hear a dispute on how CTR has been calculated?

Would it be better to talk of appealing the amount of a ‘council tax underpayment’, rather than a ‘CTR overpayment’?

(usually there will be an HB appeal to follow, but not always)

Oh yes, you can argue about that type of issue to a valuation tribunal. Important to emphasize the appeal is not about the “fairness” of the local scheme ....tribunal staff seem to look for any reason to strike out such appeals (in my experience). You can also argue about the calculation of an overpayment . One area that many LA’s are really struggling with…..calculating CTS for UC claimants. Many decisions are highly suspect. The Council must follow the Sec of State decision but the trouble is the deductions from UC…..deductions for sanctions for instance. Some schemes say “we count the amount deducted for sanctions as income” and some don’t.

Postcode lottery often depending on how many pension age claimants in the local population.

Just to update - I spoke to Tom Royston yesterday who advised as follows -

The case won on the substantive issue which was that a Valuation Tribunal accepts that a claimant can appeal if a LA has not used discretion (under s13A(1)(c) Local Government Finance Act 1992) not to recover an overpayment if it was caused by official error and the claimant could not reasonably have known they were being overpaid.

However, rather unfortunately, it also said that the claimant must specifically make a grievance that the LA has not expressly considered whether to use its discretion on those grounds.

In Tom’s case the appeal was struck out because of the technicality above. However, the claimant can now go back to the LA and ask them to exercise their discretion not to recover (no time limit as discretionary) and then if they don’t she can appeal again to the VT.

Because of the circumstances of the case Tom couldn’t appeal it further but he did suggest that if other advisers have cases that are struck out purely because the claimant hadn’t specifically raised in their appeal the LA failing to exercise its discretion then it would be worth contacting CPAG through their test case referrals to see if it can be challenged.

HB Anorak - 17 June 2016 08:33 AM

I would guess that the outcome of any lead/test case might be that perhaps this procedural loop should be excised - the VTE can look at discretion as part of an appeal against a CTR decision that was not expressed as a refusal of a discretionary reduction in order to save everyone the bother of a separate application and local dispute.

Well I suppose I wasn’t too far out: it would appear that you don’t have to launch a separate application for discretion: it is inherent/implied in the CTR decision that the Council has considered using its discretion on its own initiative and declined to do so, therefore the CTR grievance can challenge that.  It cuts out one layer.

I am looking for advice about the applicability of s13A(1)(c) to claimants of pension age.

In brief, I have a case before the VT where there has been overpayment of CTR as a result of official error. I want to rely on s13A(1)(c) however the Council’s written policy is confusing.

On the one hand it says that their policy for pension age applicants is defined by central government, including LGFA 1992 (as amended by the LGFA 2012). On the other hand the policy states: “The Council has no discretion in relation to the calculation of Council Tax Reduction in respect of the pension age scheme”.

Any thoughts greatly appreciated!

Thanks