post LASPO benefit challenges

further to this week’s High Court judgment in Bhatia Best LTD v Lord Chancellor (reported in our housing news updates on the home page) in which - to paraphrase a tweet from Jan Luba - the High Court says homelessness appeals not in legal aid category “Public Law”, so solicitors need a “Housing” contract ....

... Birmingham Law Centre are wondering (also via twitter) whether “this means legal aid for benefits JRs only for those with Upper Tribunal contract ie Law Centres?”

tweets @

https://twitter.com/JanLubaQC/status/445523987888893952
https://twitter.com/bhamlawcen/status/445677112792739840

judgment @ http://www.bailii.org/ew/cases/EWHC/QB/2014/746.html

This raises an interesting question, given that as welfare benefits matters are excluded post LASPO, save for Upper Tribunal matters.

Does that therefore mean anything pre-Upper Tribunal could fall into Public Law category as there is no alternative legal aid category at present?

Has anyone else used the public law route post LASPO to challenge poor benefit decisions or lack of decisions ??? 

I am actually considering using public law route against DWP as they won’t re-instate IS post a tribunal success and they have not appealed or sought SOR. 

What are peoples thoughts??

I haven’t done legal aid work for years so I don’t have a professional interest in that side of things as such and there has been so many changes since.  But, why have they not re-instated the IS?  This happened to a clint of mine once and you wouldn’t believe the fun and games I had before I got the money back

Its a messy one ...

It is a capital case - they alleged 20k capital and stopped IS over 2 years ago.

He claimed not to be the owner and returned capital (beneficial ownership/trust type case).

He subsequently made fresh claim and that was refused due to capital.

His partner made a claim 1 year ago and still refused.

The DWP have never provided schedule or summary of accounts.

We won two tribunals on technical grounds that DWP never issued valid entitlement decision and as such there can be no recoverable overpayment.

You would assume DWP would either (i) re-instate benefit if they are not challenging decision or (ii) issuing a new decision and re-commence.

Since then client waiting in limbo and nothing happening and now LA want to evict him as HB recently been withdrawn.

Now client getting no IS and no HB.

My contention is that DWP have to do decide what to do and not ponder around and my second argument is that even if claimant was deemed the owner, under diminishing capital rules his benefit would have recommenced a long time ago. 

I was thinking would JR Letter Before Action be a viable route using Public Law. Any thoughts would be welcome ...

I am sure there will be many advisors simply waiting indefinately for things to happen and the DWP will drag there heels as many of us who did Legal Aid work are no longer funded to open a case. 

“I was thinking would JR Letter Before Action be a viable route using Public Law. Any thoughts would be welcome ...”

I think so.  It should certainly get their attention. 

My case involved the Department refusing to pay back part of a recovered overpayment (recovered without consent) after a tribunal had found the whole sum unrecoverable.  In my case the simplest option at first instance was to threaten to sue for debt in the county court.  Mind you, I had to involve the DWP’s solicitors who were, I might say, quite helpful.

I had a case where the Pension Service refused to pay PC following not 1 but 3 successful appeals and despite them not applying for SOR or permission to appeal to UT.
It was resolved by sending a letter before action (as Paul above has suggested) quoting the following legal basis for action:

12. The SSWP cannot suspend payment following the tribunal decision. None of the criteria in Regulation 16(3)(b) as further defined in Regulation 16(4) of the Social Security & Child Support (Decisions & Appeals) Regulations 1999 No. 991 are satisfied, in particular the time limit for applying for permission has passed and the SSWP cannot therefore count as considering permission to appeal.

13. In any event it is clear that if the SSWP does not apply for permission to appeal within the time limit in the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008 No. 2685, then he must pay benefit, see Regulation 20(2)(b) of the Social Security (Claims & Payments) Regulations.

14. The SSWP has a duty to pay benefit “as soon as is reasonably practicable after the award has been made” under Regulation 20 of the Social Security (Claims & Payments) Regulations 1987 No. 1968.

15. A failure of the SSWP to pay benefit lawfully due can be challenged via a straightforward action for debt (a money claim) in the County Court. The Court of Appeal established there is a right to sue for benefit due but withheld. See Trustees of the Dennis Rye Foundation v Sheffield CC [1998] 1WLR 840 at 849F-M, 850A, and CA and Joves v Waveney DC [1999] 33 HLR 3 CA. In the latter case the following was said:

“A claimant who seeks to obtain relief must normally follow the procedures set out in the Regulations, as this Court held in Cotter. Where, however, as in this case, the Council have not themselves followed the procedures which they are obliged to follow under the regulations, and have thereby deprived the claimant of the protection and opportunities offered him by the regulations, he is entitled to bring a County Court action. In substance, by their defence the Council were seeking to “recover”, under the regulations, what they had determined to be an overpayment under the regulations.

It is conceded that if a Council purported to make a payment by cheque of housing benefit they had determined to be due, but declined to sign the cheque, the sum determined to be due would be recoverable in the County Court. That would be a mere debt collecting exercise for which an ordinary action is appropriate.”

16.      I have been instructed to advise that if payment of the Pension Credit arrears and ongoing entitlement has not been processed within the next 14 days Mrs. X will be commencing the County Court action.

Just another option to consider and wouldn’t you know it… payment was in clients account by day 10!

Excellent outcome @ Altered Chaos.

Would the DWP/LA/HMRC expect you to exhaust their long winded cumbersome complaints procedure first?