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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

Limitations Act 1980 & Council Tax Discounts

suethomsondace
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Welfare benefits co-ordinator - Disability Association, Carlisle

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Joined: 17 June 2010

I have a client with a Valuation Trubunal in December regarding her entitlement to backdating of council tax discount on SMI grounds. She only became aware of the discount this year, but could have been eligible right back to 1998 & the GP certificate confirmed this.

The appeal was originally lodged because the LA argued that IB/ESA were not qualifying benefits, and so they refused any refund prior to my client’s entitlement to PIP in 2015.

They have since acknowledged this was an error & applied a further refund; but only going back 6 years(to 2013) citing s.9 of the Limitation Act 1980 as their reason.

I am hoping to continue with the appeal to try to get her a further refund.

Most of what I’ve read on this matter (including ‘Arca v Carlisle’) seems to suggest that the 6 year limit is immovable.

However, I’ve seen previous threads on here (going back some years) where a poster alludes to arguing against the 6 year ‘brick wall’  by using s.28 of the same act (Limitations Act 1980), which concerns time limits in the case of a person with a disability.

My reading of s.28 is that the 6 year period cannot apply until the person is either no longer disabled or has died…

My client has an acquired brain injury, from which she will never recover, so I would like very much to argue that the time limit shouldn’t apply….but I am aware that my reading of the legislation may well be very wrong.

Does anyone have any experience, or even advice, regarding using this argument?

Thank you in advance.

Elliot Kent
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s.28 is referring to “disability” in quite a particular sense. It means people who are legally incapable of conducting litigation - and as we can see from s38(2)  - this means (1) infants and (2) people who lack litigation capacity under the Mental Capacity Act (or people of “unsound mind” as the Act originally described them). In these cases, if a “cause of action” accrues on a day on which you are under a disability, then the time limit only runs once you have gained (or re-gained) your capacity to act. So this could create a situation where something happens to someone in childhood but they are able to sue as a young adult because the time limit doesn’t run until they are 18.

This is only going to do you any good if you can show that your client (a) lost capacity at some point and (b) regained it at some point less than six years before applying for the SMI discount. If that is the case, I suppose you could get a backdate to point (a). If your client never lost capacity, then s.28 is irrelevant and if they regained if more than six years before the application, then s.28 doesn’t help you because the time limit has still expired even after the standstill is taken account of. Also if your client still lacks litigation capacity, then your client cannot pursue the valuation tribunal proceedings or instruct you do to so at all, so (b) is important.

More broadly, there is some discussion of backdating here : https://lgfa92.co.uk/council-tax-backdating-and-the-limitations-act-1980/

This includes the Arca case and also the slightly different approach taken in Singh although I don’t know if that helps you because it relates to quite a specific set of facts.

Mick Quinn
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Welfare rights officer - Northumberland County Council

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suethomsondace
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Welfare benefits co-ordinator - Disability Association, Carlisle

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Total Posts: 14

Joined: 17 June 2010

Thank you both for your help.

I can see that s.28 might not be helpful here…

but interesting to see the VT decision which suggests the 6 year ‘egg timer’ starts at the point the person became aware of the discount, rather than from when they first became eligible…am thinking this might be a viable argument for my client too….

Thanks again.