Referring outcome decision back to local authority

I have a case in which DWP/ local authority is arguing that my client is the beneficial owner of a large sum of money. We’re arguing that he is not. In a supplementary submission, the HB section have asked for the matter to be referred back to it without an outcome decision if the Tribunal finds that the claimant is no longer the beneficial owner; basically it wants to then make a deprivation of capital decision (which will clearly be a negative decision for my client) and go on ‘to make further findings’ on notional capital.

Can I ask that the Tribunal does not refer back and, if it finds that my client is not the beneficial owner of capital, that it can also find that he did not deprive himself of capital (or, obviously, that he did)? Can anybody give me the basis for this argument, or the rules for why I cannot ask this?

Many thanks in advance.

R(IS)2/08 is authority that a Tribunal may in certain cases set a decision aside without making an outcome decision.

However it doesn’t stop you asking the Tribunal to decide the other issue. It will depend on the case as to whether that is appropriate.

As Elliot says, setting aside a decision and remitting the whole thing back to the decision maker is occasionally an option, especially where the original decision is tending towards being inchoate.  I once had an experience I wouldn’t care to repeat representing a local authority at the Upper Tribunal before UT Judge Douglas May <shivers>.  The original decision was expressed as a refusal to make a decision on a defective claim.  Judge May was not impressed by my argument that the Council’s actions should have been interpreted as a positive decision to reject the claim.  It should never have been allowed to get that far - the FtT should have thrown the case out as premature.

But I don’t think that is the answer in your case.  The Council is over-complicating things.  What they really should do is broaden out their argument and make alternative submissions that (1) the claimant is the beneficial owner of the capital, or (2) if he isn’t that’s only because he deprived himself of it.  It doesn’t matter if their original decision didn’t rely on (2), the Tribunal can look at that issue anyway and is bound to do so if it is raised by the parties.  It makes for a fairer hearing if the claimant knows the full range of possible consequences and has an opportunity to make submissions accordingly.

What the Tribunal could do is adjourn part-heard, saying “I am minded to say that the claimant is not the beneficial owner, I now invite further submissions from the parties on the issue of deprivation”.  But I think the best option for your case is to deal with everything in a single hearing, the parties having been directed to submit their arguments on both issues.

Thanks, both, your answers reflect what I want to happen. So I’ll request exactly that in a supplementary submission and point out that both DWP/LA could actually make further submissions given that every scrap of info they could need is already in the papers.