LTAHAW - LA reliance on DWP decision

IS:  Nothing to lose by putting in a late appeal.  Spell out clearly why the appeal is late (provide ALL the info) and explain why you believe the appeal is likely to succeed.  Also, if not already done, get all copies of all evidence held by the DWP - including the IUC.  Even if there is a written transcript of the IUC, insist on the tape too.  It is not unknown for the quality of the transcription to be less than accurate.

HB/CTB:  A LA should not slavishly follow the DWP and is certainly not bound by a DWP decision in this context.  In fact, a LA is required to reach its own decision independently.  And you are absolutely correct that the LA is legally required to consider underlying entitlement (“ULE”). Contrary to the approach of some LAs, there is no requirement to “apply” for ULE - it is a mandatory part of the overpayment calculation.

If you appeal BOTH the DWP & LA decisions, I’d probably write a single letter, addressed and sent to both.  I would guess that if the HB appeal is in time, there is a greater chance of the late IS appeal being admitted.

Thank you Kevin,
I am relieved to know I am on the right track, thanks for the heads up on the IUC tape recording, will do this - already secured Cl consent re; IS.
Will inevitable need more help and so I thank you in advance.
Chaos

The following decisions may be helpful to you:

CIS/4434/2004 where Mr Commissioner Mesher as he then was held that a mere determination that a person was now living with a partner is of itself not sufficient basis for a superseding decision ending entitlement, still less for an outcome overpayment decision

CH/3736/2006 where Mr Deputy Commisioner Poynter (as then was)  reminds everyone that the termination of a passporting benefit is of itself insufficient to provide the basis for a superseding decision ending HB/CTB (see especially para 20-24)

Many thanks for the CD’s.

I am starting to become concerned though - I have read the IUC transcript and Cl has admitted that when compared to a married couple she would be considered LTAHAW - which is a valid point that would take some arguing.

I am not completely giving up until I hear the tape.. client says she was badgered and the transcript does read that way, so I may have to explore whether compliance officers followed the code of practice.

Does anyone have any experience of challenging this issue?
Could the IUC tape/transcript be thrown out if the code of practice has been breached?
Any ideas or should I be advising Cl to seek solicitor guidance if when I hear the tape this is relevant?

Dear me, I am asking more questions than my clients!

Chaos

i’ve been reading on of those lately ...

don’t panic, essentially

there’ll be something in there where client has said she’s not, etc, so latch on to that…

I have listened to IUC tapes - 15seconds- a few times in the past and found instances of where it may say ‘muffled’ or ‘inaudible’ -30 seconds- that there is absolutely a word you can hear. I suppose its just that if you know the subject area - 45seconds- you’ll be tuned into the conversation where a disinterested typist maybe at a loss as to what they’re going - 1minute- on about.

As for PACE I would be suprised if the police got away with - 1minute15seconds- leading questions and putting words into the customers mouths or even ignoring certain line of enquiry/explanation -1minute 30seconds- As for challenging the tapes, I’d say its possible, you can offer an alternative transcript -1minute 45seconds- to the Tribunal and refer to PACE and the line of questions if the interviewee was ‘led.’

(The 15secs stuff btw is the voice on the tape that plays in the background.)

Altered Chaos - 15 July 2010 07:07 PM

...and Cl has admitted that when compared to a married couple she would be considered LTAHAW - which is a valid point that would take some arguing.

This is an interesting point.  Er, to me at least.  Just to be clear, if your client really was LT, then fair enough.

However, I think a careful analysis of the facts and the evidence is required.  Depending upon that, it *may* be open to argument that what the clmt has admitted to is not LT for the purposes of Social Security law.  In other words, the definition of “couple” in s.137 et al may mean there could circumstances where two people could think of themselves as LT but, in law, the circumstances do not fall within the meaning of “couple” as defined in s.137 and related case law.

A poor analalogy (but it’s the best I can come up with at the moment) is this:

A driver is stopped by the Police.  The driver, having been doing 37mph, immediately gabbles without really considering his comments “Oh, I was speeding”.  But, it turns out the speed limit was 40mph.  In other words, the ~driver’s~ (claimant’s) view of his ~speed~ (living arrangements) doesn’t necessarily mean he was ~breaching the statutory speed limit~ (LT in the context of the statutory definition of “couple”).

NB:  The IS CD cited by Stainsby has in fact been reported as R(IS) 13/05.

I take it you have looked at these:

http://www.dwp.gov.uk/docs/dmgch11.pdf

http://www.dwp.gov.uk/docs/c1annxa.pdf

Imust admit I haven’t studied them in any detail (fortunately haven’t needed to!) but to me I think they do illustrate the complexity of these decisions, & might help you find something to back up your view that Cl. may not be LTAHAW.

And of course just because she was LTHAW doesn’t automatically mean that she is not entitled to housing benefit. This is what Richard Poynter bangs on about in the hope that one day councils will understand: it is merely a change of circumstances. Even if she is no longer entitled to IS the LA cannot decide her entitledment to HB/CTB without reassessing her.

What would I do without rightsnet?

John - I will be scrutinising the tape and referring to PACE - thank you.
Kevin - You have given me some hope, and your analogy was priceless (and made me smile in an otherwise depressing day).
Derek - Luckily this isn’t my first LTAHAW so have DMGs to hand - thank you for the reminder to actually look at them though.
Ariadne - I agree unfortunately in this case if LTAHAW is successfully argued by LA my client will be stuck, the other party had capital well over the the upper limit (client has only just found out and is not a happy bunny) so ULE is not going to help.

I will soldier on and thank you again one and all for keeping me going.
Chaos