Lapsed appeal due to diminishing capital

Once the Council accepted they had not applied the DC rule, they have to revise the origional decision to reflect the new amount of the overpayment. This new revised decision attracts a fresh right of appeal and the decision notice must include appeal rights or it is defective.

Once the corrected decision notice is issued your client has the usual 1 month to lodge an appeal.

EDIT - PS - actually thinking about it, as you have already appealed and the decision has not been revised in such a way as your client no longer disputes it then the LA should just forward your existing appeal and their response to the Tribunal service. You just need to be certain that you made it clear it was an appeal and not just a request that they reconsider it again internally. If the latter then my origional posting still applies.

I’m sure our appeal was clear. The local authority always responds to appeals, no matter how unamiguously they are presented, as if they were really reconsideration requests, but with some prodding they do forward them to tribunal. I’ve asked them to let us know if they don’t intend to now do a submission.

J Membery - 20 February 2012 01:31 PM

Once the Council accepted they had not applied the DC rule, they have to revise the origional decision to reflect the new amount of the overpayment. This new revised decision attracts a fresh right of appeal and the decision notice must include appeal rights or it is defective.

Once the corrected decision notice is issued your client has the usual 1 month to lodge an appeal.

EDIT - PS - actually thinking about it, as you have already appealed and the decision has not been revised in such a way as your client no longer disputes it then the LA should just forward your existing appeal and their response to the Tribunal service. You just need to be certain that you made it clear it was an appeal and not just a request that they reconsider it again internally. If the latter then my origional posting still applies.

My understanding is that as the decision is “more advantageous” to the client, the appeal would lapse and require a fresh appeal request, even where the original reason for the appeal has not been fully resolved to the client’s satisfaction. See notes to CSP&SSA; 200 in CPAG’s HB and CTB Legislation pp141-142

Only where it is adventagious enought so the claimant will no longer wish to appeal.
See DWP guidance below.

7.142 The purpose of lapsing an appeal is to prevent unnecessary appeals going ahead. The power to revise is discretionary rather than mandatory, and should not be used to prevent an appeal being heard. DMs are therefore advised to consider whether a decision under appeal should be revised when
• the revision does not address the issue which is the subject of the appeal, and
• it is clear that a further appeal will be made
Example 1
The DM decides that a claim for HB should be disallowed from and including 17 January 2007 on the grounds that the claimant’s income exceeds. The decision is reconsidered on appeal, the issue being whether the claimant has income. The DM notices that the date of disallowance is incorrect, and should have been 19 January 2007. The DM does not revise the decision, and the appeal goes ahead.
Example 2
The DM decides that an overpayment of benefit of £10,855 is recoverable. The decision is reconsidered on appeal, the issue being whether the overpayment is recoverable. The DM notices that the amount of the overpayment has been incorrectly calculated, and should be £10,835. The DM does not revise, and the appeal goes ahead.
Example 3
The DM decides that an overpayment of benefit of £10,855 is recoverable. The decision is reconsidered on appeal, the issue being whether the amount of the overpayment is correct. The DM notices that the amount of the overpayment has been incorrectly calculated, and should be £10,835. The DM revises, and the appeal is lapsed.
7.143 If the decision is not revised, but the DM considers it to be incorrect, the response should
• advise the FtT why the decision is not revised, and
• request that the correct decision is substituted for that of the DM

Thanks for very much for the guidance. Although the underpayment was quite large, I think example 2 applies to our case.

In R(FC) 1/92 (para 3), it was found that an appeal didn’t lapse unless the revision offered all that was sought in the appeal.  However, as a poster on another forum has observed, the wording of the relevant “lapsing” legislation is now different so the point would have to be argued with emphasis on principle with the CD in question being offered with a degree of caution (no more, no less).

There is a later tribunal of commissioners decision R(IS)2/08 (at paragrpah 31) which modifies the princple somewhat under the new legislation, but an appeal will still not lapse if the main issues are not addressed by the revising decision.

It needs to be stressed in overpayment cases that a (further) superseding decision on the award which has the effect of reducing an overpayment will not lapse the appeal, as the legislation refers only to revisions not supersessions.

Derek Stainsby has posted the most recent case law that touches on it but I would still offer the pre 1998 CD in support of the argument - but I would be transparent about the change in legislation so that credibility didn’t flounder on the basis of being selective.