ESA pending appeal.  Can I get HB reinstated too?

You should be able to get HB reinstated, but it might need a Tribunal appeal.

They can only end the award by way of a superseding decision, which carries full appeal rights.  Because of the time that has passed already, I recommend immediately submitting an appeal to the Tribunal.  The exact grounds for appeal depend on how the decision ending HB was framed and the procedure that was followed.  They had two choices:

- an “adverse inference” which means that they assumed the worst about whatever it was that had not been proved.
- “termination”, which means the HB award ends as a sort of sanction for failing to provide evidence irrespective of the substantive circumstances of the claimant

Termination is more difficult to challenge - arguably any appeal is confined to the question whether the procedure was correctly applied.  Often it isn’t and the validity of the procedure can be attacked.  Also, there is discretion to extend the time limit and that can form part of any appeal - the Tribunal can be asked to say that the time limit ought to have been extended if there was prima facie evidence that the claimant is a vulnerable person.  If the decision notice uses the word “cancelled” it is very likely that it can be attacked on procedural grounds.

Adverse inference is easier to challenge - simply produce the evidence to demonstrate that the inference was inaccurate.

Getting an appeal accepted out of time in this case should be a formality.

Would you be able to upload an anonymised copy of the decision notice then we can see how best to attack it?

Thanks for this response.  Unfortunately this case falls into the termination category.  I haven’t seen the notification but I know that in these cases, the notifications produced do say “cancelled” on them.  I believe that the authority would have allowed more time if they were aware of her vulnerability’s.  I guess the only thing they had to go on at the time was the fact that she was in receipt of enhanced rate PIP.  Thanks again for your input.  I will put in an appeal and I will start a new claim in the as soon as the SDP is awarded.

Lots to go on here

First of all, the termination of a passporting benefit is never of itself sufficient to provide the basis for a superseding decision ending HB (CH3736/2006 and CH/1664/2009)

The only legal option for the LA is to suspend the award , but the LA must comply with the requirements of Regulation 13 the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations (HB(D&A) Regulations ) before it will have any power to terminate see thread https://www.rightsnet.org.uk/forums/viewthread/16539

As for adverse inferences, the burden of proof is on the LA to justify those inferences (see VW –v- London Borough of Hackney (HB)[2014] UKUT 0277 (AAC))

There could well be a very simple way out of this because the reinstatement of ESA is arguably grounds to revise under HB(D&A) Regulation 4(7C)

Thanks for this. In fairness, they did suspend the claim for quite a while before they terminated it due to failure to provide information. I will look into regulation 4(7C) though. That sounds promising.

Also, have a look at CH/2530/2013 and the cases it cites, it confirms what the LA have to include on the suspension letter (time limits, the right to ask for an extension etc.), if they then wish to go on to make a valid termination of the claim because of a failure to supply information.

CH/2530/2013 is the file reference for VW –v- London Borough of Hackney (HB)[2014] UKUT 0277 (AAC)

A very good point, and you’d already referenced it in an earlier post!

Cheers

Alex

Thanks for all the responses guys.  They were all really useful.