HB - adverse inference, end of entitlement - what duty does LA have to reconsider? 

I think you’re correct. A reconsideration within a month is on any grounds, and is a ‘complete rehearing’ of the decision, not a review of whether the decision was correctly taken on the evidence at the time.

LA certainly wrong

Apart from the fact that the application fo revision was on time ( the application is of itself the sole reason to provide th grounds for revision, there does not have to be any other ground so the revision decision must be made on the facts as they are full stop).
Tthe decision presumably also involved a determination of fact with no evidence to suport it that the non dep was in full time work ->16hrs a week.

It was held in CH/2324/2003 (paragraph 12) that it could be an official error if the council proceeded to make that determination with no evidence to support it.

Even if the 16 hr dertermination could properly be made, any assumtions as to the claimant’s eaernings must be realistic (CH/0048/2006)

The general principles re adverse inferences were outlined by Judge Rowland in the reported decision [2017] AACR 29 (Secretary of State for Work and Pensions v HS (JSA) [2016] UKUT 272 (AAC))

1. the First-tier Tribunal had made its decision in ignorance of the fact that the Secretary of State had provided the information it had been directed to provide and, as his case was not heard, that gave rise to an inadvertent breach of the rules of natural justice;

2. a failure to comply with a direction to provide evidence might entitle a tribunal to draw an adverse inference against the offending party and so infer that the facts were not as that party said they were but only if the tribunal was satisfied that the probable reason for the offending party’s failure was that the evidence did not exist or would harm its case;

3. because social security cases involved an investigatory approach, it might be permissible to draw an adverse inference even if there was no other evidence on the particular point, but only if regard was had to the “inherent probabilities” (dicta of Lord Sumption in Prest v Petrodel Resources Limited [2013] 2 AC 415 applied);

4. accordingly a tribunal drawing an adverse inference might be required to give reasons for doing so beyond merely stating that there had been a failure to comply with a requirement to produce evidence;

Seems like the LA in this instance had no regard to the “inherent probabiliites” so their purported adverse inferences simply cannot be sustained

There is a difference between a case in which entitlement is ended procedurally due to a failure to provide information and a case in which entitlement is ended substantively due e.g. to an adverse inference.

If entitlement is ended procedurally, then providing the information after the fact does not deal with the correctness of the decision and the claimant would not be entitled to a revision. However, if entitlement is ended substantively, then the Council’s decision as to the facts can be challenged through any ground revision or appeal regardless of why the supporting evidence was not provided or whether the Council’s decision was justified on the information available to them.

The fact that an overpayment decision has been made in this case would indicate that you are dealing with a substantive decision and therefore that the claimant is entitled to revision. A procedural termination would not result in an overpayment being created.

All settled 15 years ago in CH/3736/2006 - see para 27 for exactly what Elliot has just said

I have a similar situation. HB stopped last July following an adverse inference decision after the tenant failed to respond to a letter that HB sent out, triggered by her son reaching 18. Highest NDD applied, award ended and overpayment created. But in this case the tenant didn’t respond until I spoke to her in March so she was not in time for any grounds revision; her reason for the late request was to do with her mental health. HB accepted that the son was still in education and so the overpayment fell away, but they refused to accept that this logically meant that the claim was ongoing as they had revised the decision which caused it to end.

Would you agree that once HB have accepted the late revision request, the outcome should be the same as if the request was made in time - so there was no NDD, no overpayment, and consequently no end to the award (until she claimed UC in January)?

It is possible that they could revise the overpayment downwards using underlying entitlement (the Jim Bowen rule - let’s have a look what you could have won), while leaving the entitlement decision intact.  Now, you are probably thinking:

- the entitlement decision and overpayment decision were made on the same day
- how can it be reasonable to extend the time limit to revise one but not the other?

But overpayments have an odd status which the UT remarks on from time to time.  The definition of “relevant decision” in Schedule 1 to the CSP&SS; Act 2000 does not include overpayments.  The WRA 2007 actually includes an amendment to correct this, but it has never been brought into force.  Para 6 of Schedule 7 to the 2000 Act provides for a right of appeal against an overpayment, which it carefully terms a “determination” as distinct from a “decision”, but otherwise it seems overpayments are not governed by the same rules as “relevant decisions”, including time limits for revision.  The Council could therefore say:

- we have reduced the overpayment because we just can, there is nothing to prevent us from revisiting overpayments at any time for any reason;
- but unfortunately the relevant decision that ended your HB award is now final.

If they are aware of the adjudication niceties and express themselves carefully, it is possible for the Council to arrive at a coherent conclusion that the person is no longer entitled to HB but at least doesn’t have to repay the overpayment.

As long as it’s within 13 months though it should be easy enough to get the entitlement decision changed on appeal to the Tribunal.

BTW, every time I use an abbreviation to refer to legislation a semicolon appears in it - how do you stop that?

Two issues here

You say they accepted that the son was still in education.

If that is non advanced education , he would still bea dependant and nt a non dependant.

That being the case there was no change of circumstances to provide the grounds for supersession (CH/2812/2008)

If he went into higher education then all that has been said previousy on this thread still applies and there is no legal basis for the Council not to revise their decision.

If you look closely at Regulation 104 re so called underlying entitlement, it refers to amounts properly payable if there had been no misrepresentation or failure to disclose a change of circumstances, nowhere does it refer to a failure to provide ( corroborating) evidence. 

The question of evidence was at issue in CH/3935/2007

Mr Commissioner (as then was) Jacobs held at paragraph 14

14. I analysed an equivalent provision (section 12(8)(b) of the Social Security Act 1998) in R(DLA) 2 and 3/01 and decided that the key consideration was the circumstances that were obtaining at the time of the decision under appeal. It does not matter when the evidence of those circumstances came into existence or became available. What matters is the date to which it relates. If it relates or can be related to the time of the decision, it is admissible.

You would have no difficulty winniing an appeal on this one