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Carmicheal Bedroom tax revision request

 

DDP
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Afternoon all.

I have a client who cannot share a bedroom with his partner due to his disability.

He asked HB to revise their decision to allocate him 1 bedroom only for bedroom tax purposes back in 2014 on the above grounds. The request was refused.

Last month (so post Carmichael decision) , he asked again for HB to revise the same decision. The revision request was accepted and he was given an extra bedroom for bedroom tax purposes from April 2017.

His condition remains the same as it was in 2014 (if anything he has improved and can share a bedroom with his wife more frequently now than he could when he first contacting HB regarding this).

CPAG Handbook 17-18 (pg. 433) states that a decision not to allow an extra bedroom for the above reasons should be revised from before April 2017 even though this covers a period before the Carmichael decision was made.

Has anyone got experience of sending a revision request “post Carmichael” to HB asking for an extra bedroom for the above reasons from before the Carmichael decision?

I am just not sure how to approach this with HB?

Does the Carmichael decision means the regs. have changed from April 2017, or does it do more than this and state that the interpretation of the law was always wrong hence why decisions not to allow an extra bedroom in the above circumstances pre. Carmichael can be changed?

I want to get my clients HB backdated all the way to 2014 (he’s received PIP DLC since then) to reflect he has 2 bedrooms for bedroom tax purposes. I’m just not sure how to do it!!

Hope someone can help!

     
Stainsby
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Carmichael held that the bedroom tax was always unlawful in these circumstances,( but bear in mind the anti test case rule)

How did you word your first application?

Did you ask for a revision, or did you say you wanted to appeal the decision.?

I never ask for revision, I always appeal.  The reason for that it that the Council can revise its decision if there is an appeal, but if they refuse, they are then put in the position of having to prepare a submission for a tribunal.

If you can argue that your first application was an appeal, and the Council still wont budge they will have to take it to Tribunal and the Tribunal will be bound by Carmichael.

You may or may not be out of time to appeal the Council’s refusal to revise (if your application was not an appeal) depending on the date of the refusal, but you might not be out of time to appeal any superseding decisions after July 2016

     
HB Anorak
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There is another reason for appealing instead of applying for revision in these cases: if the decision you are appealing against pre-dates Carmichael the Tribunal is not bound by the various anti-test case rules that set out to prevent “look-alike” claimants receiving large arrears payments following a lead case like Carmichael.  The Council will normally not be able to revise any pre-Carmichael decisions itself because of the anti-test case rules.  The only hope is top get it before a Tribunal.

     
DDP
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Thank you so much both.
I did make an appeal however HB advised they were obliged to review their initial decision before an appeal was lodged. They then changed their decision from 1.4.17 only.
I have now appealed again and used the wording suggested in relation to the decision not to allow an extra bedroom in these circumstances ALWAYS being unlawful.
I have made it very clear that we want the appeal referred to HMCTS if HB do not change their decision from 1.4.13.
Thank you again! Hope this does the trick!

     
Stainsby
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The change from 1 April 2017 is not a revision of the previous decision, it is a supersession.

It may be the case that there must be a review (mandatory reconsideration in UC and other social security benefits,  but that it not the case with HB.

If you submitted an appeal in writing at the time this means that your case should go forward to Tribunal.

If what you did was ask for a revision, and the purported revision was not made until after Carmichael, you are still in time to appeal ( the absolute time limit being 13 months from the date of notice of the decision as revised or not revised as the case may be)

Even if it is arguable that ( assuming you appealed the original decision) the new decision effective from April 2017 was a revision ( and I cannot see that it would given that a revision would normally take effect from the same date that the original decision took effect), you could still argue that the “revised” decision in so far as it relates to the still disputed period is not advantageous and the appeal should not lapse.

Although not on all fours, you could cite the Tribunal of Commissioners Decision R(IS)2/08 at [ 31] to support your case

“No-one appears to have considered whether the decision of 8 October 2003 caused the appeal against the decision of 2 September 2003 to lapse, but the intuitive view that the appeal continued was, in our view, correct. It is true that section 9(6) of the 1998 Act provides that an appeal lapses if the decision under appeal is revised save where regulations otherwise provide and that regulation 30 of the 1999 Regulations provides that an appeal does not lapse only where the revised decision is not more advantageous than the original decision. It is also true that regulation 30(2)(a) provides that decisions that are more advantageous include those where “any benefit paid to the appellant is greater or is awarded for a longer period in consequence of the decision made under section 9”. However, where a period before the date of the original decision is in issue and a revision affects only part of that period, it seems to us that there are many circumstances in which it can be appropriate to regard the decision as being more advantageous to the appellant only in respect of that part of the period and not the remainder of the period. This is particularly so where the Secretary of State knows very well that the revision does not deal with the main issue raised by the appeal and that it would be a waste of time to treat the appeal as having lapsed and to require the appellant to start all over again”.

      [ Edited: 7 Dec 2017 at 06:04 pm by Stainsby ]

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DDP
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Hi both,

First of all thank you so much for your help with this already.

I have a tribunal in relation to the above on 18.12.17.

You will remember that the case relates to a husband and a wife. The husband and wife cannot share a bedroom due to the husband suffering from PTSD. HB have essentially agreed that they cannot share a bedroom, they just won’t allow an additional bedroom before April 2017.

To clarify, the timeline of this case is:

-(Appeal One) On 2.3.14, client appealed against the decision not to allow him and his wife separate bedrooms.
-(Appeal One) On 13.11.14, HMCTS refused clients appeal at tribunal but only because regs. did not allow an additional bedroom under these circumstances.
-(Appeal Two) On 18.7.17, post-Carmichael, I asked HB to revise their decision not to allow an extra bedroom for the client.
-(Appeal Two) On 20.7.17, HB changed their decision not to allow the client an extra bedroom. HB awarded the client an extra bedroom but only from 1.4.17. HB stated, and have maintained throughout, that the changes to the regs. following the Carmichael case take affect from 1.4.17 only and are not retrospective.
-(Appeal Two) On 29.8.17, I asked HB to revise their decision and allow the client an extra bedroom from the date the bedroom tax was first applied to their claim. We argued that HB had made an official error by not allowing an extra bedroom for HB purposes from the date the bedroom tax was first applied. We argued that the Carmichael case ruled that it was always unlawful for an extra bedroom to be allowed under these circumstances and that this meant that the decision to allow an extra bedroom should take affect from 1.4.13.
-(Appeal Two) 13.9.17, HB wrote back to say they were standing by their initial decision.
-(Appeal Two) 3.10.17, we appealed against the decision of 20.7.17 that the extra bedroom should only be allowed from 1.4.17.

The crux of the matter appears to be that HB state that the Carmichael case states that it was only unlawful not to allow an additional bedroom from 1.4.17 whereas our stance is that Carmichael states not allowing an extra bedroom was always unlawful and essentially what Carmichael did was point this out.

Even if the tribunal did agree with us however, do they have any power to make a decision on this and allow an extra bedroom pre-April 2017? It seems to me that the initial decision (focus of Appeal one) is way too long ago to do anything about, and the second decision (focus of Appeal two) cannot reach back further than it has already?

Am I best familiarising myself better with “Tribunal of Commissioners Decision R(IS)21/08 [at 31]” as suggested by “Stainsby”? Does this give me the ability to get the extra bedroom allowed from post 1.4.17?

Or I am best withdrawing the appeal and going down a different route? Judicial Review for example?

Hope you can help!

     
HB Anorak
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Right, you have three different kinds of decision here.

1. You have a superseding decision from April 2017: the bedroom tax has been removed in accordance with the amending regs that were brought in after Carmichael

2. You have a Tribunal decision that HB was correctly assessed on a date some time before March 2014.  The Council cannot do anything about that - they are not allowed to revise a Tribunal decision.  The only way that can be overturned now is an out of time appeal to the UT.  It’s not impossible to get permission out of time and it costs nothing to ask, but the odds are against you I would think

3. On two or three occasions at least between 2014 and 2017 the Council will probably have made superseding decisions from time to time - social sector rent reduction from April 2016 for example.  If any adverse decisions were made within the 13 months leading up to the date of Appeal 2 on 20/7/17, those are the ones that are still under appeal - the favourable decision from April 2017 would not cause an appeal against an earlier decision to lapse.  However, if your client has stable circumstances with not much going on in terms of financial changes, it may be that the most recent decision prior to appeal 2 in which the bedroom tax is still an issue will be the one made in April 2016 and your client was out of time to appeal it.

If I am right about the decision making history, the only realistic prospect I can see for getting any extra benefit here is to ask for a further superseding decision to be interposed from the date of the “relevant determination” (the Supreme Court’s decision) and to appeal to the Tribunal if that is refused.  It might even be possible to interpret the appeal that has already been made as covering that: in making a superseding decision from April only, the Council has in substance declined to make a decision from the date of the relevant determination and so the appeal should be submitted to Tribunal in respect of the period from November 2016 to April 2017.

     
ClairemHodgson
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if it helps, a court declares the law as it is and always was under the relevant statute. 

for example, the employment tribunal fees case.  had it been the case that fees could not be charged from the date of the court decision declaring them illegal, the government wouldn’t have to repay them.  the court declared they were illegal ab initio.

it’s no different here.  carmichael should always have been allowed the extra bedroom given the law/statute/regs at it applies to him.  your client is in the same position.

and the local authority can’t argue otherwise - that’s not how it works.

     
HB Anorak
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it’s no different here.  carmichael should always have been allowed the extra bedroom given the law/statute/regs at it applies to him.  your client is in the same position.
and the local authority can’t argue otherwise - that’s not how it works.

Unfortunately, social security legislation contains “anti-test case” provisions that limit the effect of lead cases on others. In the case of HB they are found in paragraph 18 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000 and in the HB&CTB; Decisions and Appeals Regs 2001.  The combined effect of these rules on “look-alike” cases is as follows:

- when making a decision in respect of a period before the lead case was handed down, the Council must act as if the lead case did not exist
- the time limit to apply for revision cannot be extended purely because the lead case has changed the claimant’ understanding of the law
- any time revision on the official error ground is not possible where the error is only shown to have been such by the lead case
- the lead case provides grounds for a superseding decision with effect from the date of the lead case (which DDP’s client should be entitled to*).

A Tribunal is not required to abide by anti-test case rules, unless it is hearing an appeal against a decision in which the Council has applied them.  If the Council correctly refuses to go back any further than the date of the Carmichael decision, a Tribunal is bound to do the same if that decision is appealed.  But if an appeal was already in the system before Carmichael, or a late appeal is accepted after Carmichael against a Council decision that predates it, the Tribunal is free to apply Carmichael.  DDP’s problem is that there was no appeal pending before Carmichael, and possibly no decision in the recent past that could still be appealed out of time.

*One possible snag here is that the human rights remedy in the form of an increased benefit award is itself available as a result of the separate UT appeal in the Rutherford/Carmichael case: the Supreme Court decision was an appeal from JR proceedings, all that time the UT appeal had been stayed.  It is arguable that the lead case for the purpose of the HB anti-test case rules is the UT decision, which was made on 27 April 2017.  If so, that would prevent any additional HB being awarded in look-alike cases before the Regs were amended from April.

      [ Edited: 28 Nov 2017 at 06:54 am by HB Anorak ]
ClairemHodgson
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ah. 

how ridiculous.

     
Stainsby
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There is theoretical possibility that you could mount a late appeal to the UT against the FtT’s decision because there is no absolute time limit (Rule 5(3)(a) Tribunal Procedure Rules) (Same for both FtT and UT rules)

     
DDP
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Thanks for everyone’s help.
I have asked HB to send me all decision notices from 1.7.16 in the hope that I can ask for a decision post April 2017 (date extra bedroom has been added from) to be revised through the appeal I made on 18.7.17.
If that fails, I plan to go to the UT re. the FtT decision made in November 2014.
Not holding out much hope but fingers crossed we can get a favourable decision to take affect pre-April 2017 somehow!