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Decision after lapsed appeal

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Welfare Benefits and Trusts Team. Frenkel Topping, Manchester

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Hi All,

Please can anyone advise on how I should proceed with this case? Sorry it’s a bit of a lengthy one..

It’s a Housing Benefit appeal. My client is renting from his son-in-law (who lives elsewhere) and the council have deemed the tenancy to be non-commercial.

We appealed the decision and the hearing was scheduled for June. The hearing was adjourned as the judge wanted the landlord present as witness. The hearing was rescheduled for 12th August.

Whilst waiting for the rescheduled hearing, the council wrote to the client asking for further information on the case (standard things like the deposit and rent arrears etc). We responded to this letter.

The council then phoned the client direct on 31st July and said that based on the new information provided, they had revised the decision in the client’s favour and would award HB. The appeals officer at the council emailed the client to confirm this and decision notices were subsequently received by both the client and landlord dated 31st July confirming the award.

The client then received a second phone call from the appeals offer on 1st August to advise that actually they had decided not to revise the decision and they would rather wait for the appeal. The client asked why but all as he was told was that they had new information available. We didn’t receive any written notification.

I was on annual leave when both phone calls were made to the client. Upon my return, I contacted the council several times by phone and email to ascertain what had gone on and what the new information they had was, but I wasn’t given any details by phone and no response to my emails. I contacted the tribunal service to ask if the council had updated them with the revised decision of 31st July but they had not.

I could not attend the hearing on 12th August but I wrote a letter to the tribunal explaining that the decision was revised on 31st July and so the appeal should have lapsed.  The tribunal issued a decision notice to confirm the appeal had lapsed as a more favourable decision had been made.

We have now received a letter from the council stating that whilst they appreciate the appeal had lapsed, the case still requires conclusion or a further appeal if they still believe the tenancy to be non-commercial. They state that they believe the claim should not have been revised in my client’s favour (but don’t state on what evidence), and therefore they have further lines of questioning. They then say that if the decision remains the same (i.e. they deem the tenancy to be non commercial), we will have to appeal again.

Can anyone please advise if the council are ‘allowed’ to do this or should they have implemented the revised favourable decision of 31st July upon the appeal lapsing?
And where they say ‘if the decision remains the same’, isn’t the most recent decision the one to revise in my client’s favour? I’m not sure how to respond to their letter.

Thank you for your help.

Elliot Kent
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I had a case where the DWP tried to do this. It ended up with a statement of reasons in which the appeals officer was personally criticised by the Judge in quite trenchant terms for having made such a colossal mess.

The decision was made that your client was not entitled to HB.

That decision was appealed and then revised in your client’s favour.

The revision of that decision caused the appeal to lapse.

The decision as revised is currently operative.

The Council is not entitled to simply change its mind - it can’t just “retract” an effective revision.

However, if it wants to get out of its revised decision, It could further revise its already revised decision. It can only do this if it can show any time revision grounds (e.g. official error).

If the Council decides to further revise its revised decision, then your client will have a further right to start a second appeal.

You would be perfectly entitled to take the point in that appeal that the further revision was illegitimate as it was done without grounds.

Edit for clarity

[ Edited: 6 Sep 2019 at 11:02 am by Elliot Kent ]
HB Anorak
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Benefits consultant/trainer -, East London

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Agree the Council would need grounds to justify further revision, and would need to notify the claimant properly of the decision as further revised, which then attracts a fresh right of appeal.

As to what those grounds might be, it seems they are saying further facts have come to light since the decision was first revised and so the decision as first revised was made in ignorance of those facts.  (Further) revision for ignorance of the facts has no time limit when disadvantageous to the claimant.

But as Elliot says, councils are notorious for just changing their minds where a subjective judgement is involved - and they cannot do that without having proper grounds for revision.  If there is no new evidence, and the decision as initially revised was one which was properly open to the DM (i.e. not an official error), they are stuck with it.

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Welfare Benefits and Trusts Team. Frenkel Topping, Manchester

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Total Posts: 7

Joined: 18 May 2016

Hello Elliot and HB Anorak

Thank you for your helpful replies. Can I just check my understanding of things with you both and see if practically, my next steps are what you would do?

So as I understand, on the basis of the letter that the client has received asking for further information ‘in order to reach a conclusion’, and given the fact that we have not had a decision notice revising the favourable decision of 31st July, it is sensible to assume that the decision of 31st July is the current decision. Therefore, HB should be in payment now even if the council decide to revise that decision again.

I intend to write to the council and ask for the HB decision to be implemented as it is the operative decision. Is this what you would do? I will also send a copy of the letter to the client’s MP as my client’s wife is seriously ill.

If I respond to the council’s letter and give them the information they ask for, I assume they’re going to come back and say along the lines of ‘we have revised the decision of 31st July on the basis of new information provided and our decision is no entitlement to HB’. This would then give us fresh appeal rights and we start all over again with a new appeal.

So would you even respond to the council’s request for information? They say if we don’t respond by 19th September that the appeal will be upheld (which makes no sense to me but I assume they mean they will refuse HB).

Is there anything I’m missing here about how to move things forward? Can the tribunal service do anything now that the appeal has lapsed?

Thank you so much for your help.