Grounds for appeal??

hi -
maybe think about late appeal - will have to be done within 13 months of decision though, which could be any time now.  might be worth ringing HB dept to see what date they have for decision being made - if wait for them to reply to letter might miss deadline.  grounds for lateness of appeal could be that didn’t receive decision notice.

cheers ros

ros - 14 July 2011 03:17 PM

hi -
maybe think about late appeal - will have to be done within 13 months of decision though, which could be any time now.  might be worth ringing HB dept to see what date they have for decision being made - if wait for them to reply to letter might miss deadline.  grounds for lateness of appeal could be that didn’t receive decision notice.

cheers ros

Thanks Ros.

Cookie - 14 July 2011 03:04 PM

Client tells me that she has never received a decision letter with reasons for the OP or advising her of her legal right to appeal, I find this hard to believe, however I have written to the LA advising them of the above and have requested a copy of the original decision.

Well, here’s a shocker…  unless you’ve had first involvement in cases where fraud has been alleged.  I have assisted an expert witness in more than 40 cases where fraud related offences were alleged - I haven’t overlooked that the charges were dropped in your client’s case, but this may still be relevant.  Amongst those 40+ cases, it has been far from uncommon for there to be no evidence of decisions being notified to claimants.  So, given that the case has been through the fraud investigation process, I personally would not be surprised in the slightest if your client was in fact telling the truth about not being notified.

Even if the LA does manage to produce copies of notifications, it doesn’t necessarily mean they were actually sent.  I would follow the other advice and submit a late appeal (although, if no notif, an appeal wouldn’t be late!).  Amongst the grounds, I would expressly raise the point that failing to notify your client means:

1)  the LA’s purported decision is of no legal effect - R(I) 14/74.  Further, in “R v SoS Home Dept & anor ex parte Anufrijeva [2003] UKHL 36”, the House of Lords found @ p26:  “Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system…”

On this point, Anufrijeva has been regularly adopted by Cmmrs/UTJs as being correct in the context of Social Security law.

2)  any appeal time limits have not started to run - see para 8 of “LB Camden (resp) v Martin (appel) [2009] EWHC 2040 (CH)”; therefore the appeal is not late.

3)  as a matter of law, the award purportedly ended mains in place as a matter of law, until or unless such time as a decision has legal effect.

4)  there is no overpayment because the decision purporting to be the basis of the overpayment is of no legal effect.

Also, if applicable,

5)  the Council has failed to carry out the mandatory calculation of underlying entitlement (CH/360/2006 @ para 11 and circular HB/CTB G5/2011**).

“Anufrijeva” and “Martin” are both available on http://www.bailii.org and R(I) 14/74 is available from the Upper Tribunal’s website.  CH/360/2006 is attached as is G5.

If you have any doubt(s) at all about the integrity of the documents provided by the LA, or if you think the LA is being selective in what it is putting to the Tribunal, don’t hesitate to ask the Tribunal for a Direction as appropriate.

** If relying on a circular, I’d advise an open acknowledgement that circulars are not binding.  However, in the case of G5/2011, I would go on to say that it appears to correctly reflect the law.

Kevin D - 14 July 2011 04:03 PM

Cookie - 14 July 2011 03:04 PM

Client tells me that she has never received a decision letter with reasons for the OP or advising her of her legal right to appeal, I find this hard to believe, however I have written to the LA advising them of the above and have requested a copy of the original decision.

Well, here’s a shocker…  unless you’ve had first involvement in cases where fraud has been alleged.  I have assisted an expert witness in more than 40 cases where fraud related offences were alleged - I haven’t overlooked that the charges were dropped in your client’s case, but this may still be relevant.  Amongst those 40+ cases, it has been far from uncommon for there to be no evidence of decisions being notified to claimants.  So, given that the case has been through the fraud investigation process, I personally would not be surprised in the slightest if your client was in fact telling the truth about not being notified.

Even if the LA does manage to produce copies of notifications, it doesn’t necessarily mean they were actually sent.  I would follow the other advice and submit a late appeal (although, if no notif, an appeal wouldn’t be late!).  Amongst the grounds, I would expressly raise the point that failing to notify your client means:

1)  the LA’s purported decision is of no legal effect - R(I) 14/74.  Further, in “R v SoS Home Dept & anor ex parte Anufrijeva [2003] UKHL 36”, the House of Lords found @ p26:  “Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system…”

On this point, Anufrijeva has been regularly adopted by Cmmrs/UTJs as being correct in the context of Social Security law.

2)  any appeal time limits have not started to run - see para 8 of “LB Camden (resp) v Martin (appel) [2009] EWHC 2040 (CH)”; therefore the appeal is not late.

3)  as a matter of law, the award purportedly ended mains in place as a matter of law, until or unless such time as a decision has legal effect.

4)  there is no overpayment because the decision purporting to be the basis of the overpayment is of no legal effect.

Also, if applicable,

5)  the Council has failed to carry out the mandatory calculation of underlying entitlement (CH/360/2006 @ para 11 and circular HB/CTB G5/2011**).

“Anufrijeva” and “Martin” are both available on http://www.bailii.org and R(I) 14/74 is available from the Upper Tribunal’s website.  CH/360/2006 is attached as is G5.

If you have any doubt(s) at all about the integrity of the documents provided by the LA, or if you think the LA is being selective in what it is putting to the Tribunal, don’t hesitate to ask the Tribunal for a Direction as appropriate.

** If relying on a circular, I’d advise an open acknowledgement that circulars are not binding.  However, in the case of G5/2011, I would go on to say that it appears to correctly reflect the law.

Wow,

Thanks Kevin, your information will be of great use.

Do you think I should appeal now or wait for a response from the LA.?  I am worried that if they do produce a decision letter we will be out of the maximum time limit to appeal.  Although if they cannot produce then, like you say there is no time limit.  I do not know what to do for the best.

Sounds like you have had much experience with this sort of case.  I find their procedures crazy. How can they simply state a client has been overpaid but not produce any evidence as to why.  The other thing that surprises me is that the DWP have not taken any action (well not to date).  Client has continued to receive IS throughout!!!

I will respond to this over the weekend / early next week.  Not enough left in the tank for today :-).

Firstly, apologies for the delay.  Definitely submit an appeal ASAP.  The circumstances in which delaying an appeal will be strategically advantageous will be rare - this doesn’t appear to be such a case.

Based on the info given, the grounds of appeal should go something like this:

1)a) the LA has failed to notify the clmt in accordance with the law (reg 90, HB Regs 2006 & CTB equivalent); or alternatively,

1)b) if the LA did send such notification, it was not received by the claimant and therefore the decision has not been effectively communicated.  The deeming provisions of regulation 2 of the HB/CTB (Decisions & Appeals) Regulations 2001, about the serving of notices, only applies to those regulations and do not apply to the respective HB/CTB 2006 regulations - CH/1764/2008.

2)  the appeal is in time because the claimant was not notified of the decision in question.  As such, the appeal time limit has not started to run - “Martin” as cited above.

3)  the failure to notify the claimant means any purported decision is of no legal effect - “Anufrijeva” & R(I) 14/74.

4)  as the decision is of no effect, the award of HB/CTB in place immediately before the purported decision remains in place and there is no overpayment - CH/0872/2009; CH/1664/2009.  CH/2230/2008 & C1/07-08 (HB)* may also assist.

5)  in any case, the claimant was not a member of a couple (see definition in HBR 2 & s.137 of the SSCBA 1992).

6)a)  even if the claimant had been a member of a couple, LT does not, in itself, provide grounds for ending benefit - R(IS) 13/05.  It is submitted that this principle is not exclusive to IS; it properly applies to HB and CTB.

6)b) further, the LA has failed to comply with its MANDATORY duty to apply what is informally known as “underlying entitlement” - CH/360/2006 @ para 11.  Indeed, the DWP has recently reminded LAs of the mandatory nature of this requirement by way of circular G5/2011.

NB:  where a LA fails to undertake a calculation of “underlying entitlement”, it is submitted this counts as an error in law and the LA is able to correct official errors of this nature at any time - DAR 4(2).

7)  any evidence held by the LA does not show the claimant was a member of a couple.  This is wholly unsurprising as the claimant was, as a fact, NOT a member of a couple.  Indeed, following a fraud investigation, criminal proceedings against the claimant were dropped.

8)  in light of the above, the LA is asked to reinstate HB/CTB accordingly to the effect there is no overpayment of those benefits and that there is/was no break in entitlement.  If the LA does not make, or revise, a decision in favour of the claimant, this appeal must be forwarded to The Tribunals Service.

* C1/07-08 (HB) is a Northern Ireland decision.  In anticipation of the LA (or even a Tribunal) suggesting that NI decisions are irrelevant, see R(SB) 1/90; C1/03-04(HB) NI as well as SoS DWP v Deane [2010] EWCA Civ 699.  In short, legal authorities in different UK legal jurisdictions should be followed within other UK jurisdictions where Social Security law is the same.

IMPORTANT:  cookie, if the LA ended HB/CTB on the basis that IS ended, repost and I’ll point you in the direction of further legal authorities to the effect that the end of IS does not provide grounds on which to end HB/CTB.  Also, did the LA suspend HB/CTB and then “terminate”?  This is potentially important because if the LA is relying on DAR 14, it is almost certain a further ground of appeal can be made to the effect that this was procedurally wrong.  Again, if “suspension” played a part in the process, repost.  Alternatively, email me.

If anything else comes to mind, I’ll add it to this post (I *may* have overlooked something).

Edit-1:  Point 4 added to + UK jurisdictions info.