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VERY late appeal help

CMILKCAB
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Benefits advisor, NHS Project - Castlemilk CAB, Glasgow

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quick outline.
Young girl aged 19 gets pregnant. Never on benefits and gets pregnant. No income so goes to local Jobcentre for on advice on entitlement. Staff very helpful and advised she claim Income Support. They assist her with claim.
Then tell her that as she had previously worked she can ALSO claim Maternity Allowance and gave her form. Client completed and submitted.
On getting a new tenancy was given a benefit check by Housing Association wro. Was told she was being overpaid as should not be getting Income Support. Client informs DWP and IS stopped. Then gets notice of overpayment .
Client distressed and goes to local CAB. They submit MR request for client.
Client hears nothing for 4 years. Obviously assumed that DWP had accepted that she had been given misinformation by DWP staff and any overpayment was not recoverable…as per the basis of the MR submission.
Gets letter from DWP Debt management seeking payment.
I have been in touch with DWP in past few weeks. Advised she could never appeal as never got a response to MR.
They claim to have sent MR decision out to client in August 2018. I have asked to be sent a copy of said MR decision but after several weeks they now say that originating office is closed and they cannot unearth a copy of the MR decision!!  THEY advised me to submit a late appeal .

Now got word back from HMCTS with a directions notice saying that Tribunal “does not have jurisdiction to hear appeal due to time delay.”
I have been asked to submit further comments that I may wish the Tribunal to take into account when deciding “whether the appeal has been made outside the statutory time limit”.

Would greatly appreciate any advice in this area. Also opinions on whether client has good grounds for the appeal.

Elliot Kent
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On lateness, the deadline is a month - extendable to thirteen with good reason. Your client has missed that by about 2.5 years. There is an exceptional jurisdiction referred to in the Adesina case to consider an appeal beyond that absolute time limit where to do otherwise would infringe the claimant’s human rights but it hardly seems likely that this is that sort of case.

To look at it the other way round, if it were accepted that the August 2018 MRN were not in fact issued, the time limit would not yet have begun to run. I suppose that in principle you would be entitled to put the DWP ‘to proof’ as it were that the MRN had been issued in August 2018 as they say, but I think many judges would be prepared to accept their explanation without much resistance.

On the substantive merits of the case, there is nothing inherently problematic about receiving Income Support and Maternity Allowance at the same time. It is just that the MA is treated as income for the purposes of IS and, because MA is paid at a higher rate than IS, it will generally have the effect of reducing the IS to nil.

The advice from the JC+ staff doesn’t appear wrong as such insofar as they have helped her claim IS and then (presumably on further discussion of her work history) also advised her to claim MA. The MA claim would have been an appropriate step to maximise her income. It is just that your client appears to have been left with the impression that the MA would be paid in addition to her IS rather than instead of it. The DWP systems then appear to have failed to identify the interaction between the MA and the IS for themselves and your client has not drawn it to their attention.

The DWP will, I assume, say that the overpayment arose because your client did not tell the IS department about the MA award. They will say that material was given to your client alerting her to the need to inform them if she became entitled to any other benefits and that she didn’t comply. They will say that the Hinchy case is authority that your client wasn’t entitled to rely on the MA department to tell the IS department about the award.

There may be fairly technical arguments in these sorts of cases, for instance around whether the claimant was in fact told about the requirement to report other benefit awards or where there is evidence that in fact IS were told by MA about the change and just failed to act on that information. But I don’t see that there is any reason in this case to believe that you are obviously onto a winner.

benefitsadviser
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the 13 month isn’t absolute
MR Posted in 2019 for an IS overpayment, and client also prosecuted by DWP for fraud
MR negatve, so sscs1 sent, and appellant later confirmed he had received paperwork from courts
3 years later magistrates found him not guilty
DWP just started recovery as apparently there was no appeal in the system, and letters appellant received were from criminal courts, and as a layman he thought it was all the same.
It appears HMCTS never got SSCS1 posted in 2019
I wrote to HMCTS requesting late appeal to get a letter from a clerk saying no. I wrote back, demanding it be put before a district judge, and he has now allowed the appeal to progress.
KK vs Sheffield council 2015 was a case where the 13 month time limit was breached, but still allowed appeal to proceed
You need REALLY good grounds though….
And as eliot said, getting an appeal in is 1 thing, winning it is another…...

CMILKCAB
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Thanks for replies folks. Most helpful.
I do have a concern that DWP can tell me the an MRN was definitely sent out but say that they cannot trace a copy of it?? Where is their Data Retention??
Would they not have difficulty with defending an appeal in the event they cannot provide any evidence of their decision making process?

Elliot Kent
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https://www.gov.uk/government/publications/dwp-information-management-policies/dwp-managing-customer-records-guide

“supporting records: generally records classified as supporting are retained for 14 months after DWP’s live interest in the claim has ended.”

Mike Hughes
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One of the instances where I would have used an SAR to establish exactly what they do have on the MR. Maybe it’s a regional thing but I suspect many judges in our area absolutely would not accept a bland explanation of there having been an MR “but…”. I’d also like to see a copy of the MR done by CitA.

This has the makings of a solid case. 17 year old with zero benefits experience won’t have realised she was being overpaid. You just need the initial key to the door.

Elliot Kent
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Mike Hughes - 08 April 2022 03:54 PM

One of the instances where I would have used an SAR to establish exactly what they do have on the MR. Maybe it’s a regional thing but I suspect many judges in our area absolutely would not accept a bland explanation of there having been an MR “but…”. I’d also like to see a copy of the MR done by CitA.

This has the makings of a solid case. 17 year old with zero benefits experience won’t have realised she was being overpaid. You just need the initial key to the door.

I wonder if it might be that a better approach to this case is to ditch the appeal (withdrawing it before it is struck out) and do the proper digging into the SAR to try and find grounds for an any time revision to re-open the whole thing.

[ Edited: 8 Apr 2022 at 07:59 pm by Elliot Kent ]
Mike Hughes
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Certainly the direction I’d go and one I’ve pursued in the past a few times with success.

MM3
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Advisers team, Money Matters Govan, Glasgow

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Also - if the MR was not properly notified then the time limit has not started to run. Not sure if you can use that but you might ....

https://publications.parliament.uk/pa/ld200203/ldjudgmt/jd030626/anuf-2.htm

Anufrijeva 26
“26. The arguments for the Home Secretary ignore fundamental principles of our law. 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: Raymond v Honey [1983] 1 AC 1, 10G per Lord Wilberforce; R v Secretary of State for the Home Department, Ex p Leech, [1994] QB 198, 209D; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115.
  27. What then is the relevance of this dimension for the present case? The answer is provided by Lord Hoffmann’s elegant explanation of the principle of legality in the Simms case. He said, at p 131 E-G:
“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document”.
This principle may find its primary application in respect of cases under the European Convention on Human Rights. But the Convention is not an exhaustive statement of fundamental rights under our system of law. Lord Hoffmann’s dictum applies to fundamental rights beyond the four corners of the Convention. It is engaged in the present case.