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Enforcing tribunal decisions
Has anybody had to take steps to force the DWP or a local authority to comply with a FT tribunal decision? If so, what did you do and did it work?
I won a bedroom tax appeal in January, but the local authority have not paid the backdated housing benefit. The tenant died 3 weeks after the tribunal decision, so the money should have been paid into his estate. His daughter is actiong as his personal representative, so in effect, it should have been paid to her. I have exchanged phone calls with the LA’s benefits department twice, they said they would write acknowledging the tribunal decision (neither they nor the DWP are going to appeal it) and confirming how much backdated benefit they are going to pay. They haven’t done this, either to me or to the tenant’s daughter. When she phoned the benefits service herself, they told her they had paid the backdated housing benefit to the tenant’s housing association because they claimed he owed rent. But the housing association have never sent an invoice or a rent statement to the daughter, and she dealt with them direct when she was clearing his flat.
I think the only issue to address is that the local authority has not complied with a tribunal decision, and has possibly broken the law by paying money due to some-one’s estate to a third party who are not authorised to receive it. (I have found out from a look at the CAB’s advisernet that money still owed to some-one after they have died has to be paid their personal representative if they have one, if not to their next of kin; and they are responsible for paying any outstanding debts out of the estate.)
I have sent the local authority a demand for payment, and intend to help the daughter take a small claim in the county court if they don’t pay. But I was wondering if there is a faster and more certain solution. I have to admit, I haven’t yet looked at the tribunals regulations or the Tribunals, Courts and Enforcement Act to see what enforcement powers tribunals have.
In the past I have lodged complaints and made it clear there was an intent to pursue as far as the PCA. Also use local councillors. They don’t take kindly to any threat of confrontation that might cause reputational damage.
In this specific instance it’s easy enough to get the person administering the estate to write to the Council. A quick chat with legal should focus their minds.
I have threatened a money claim in the county court for non-payment, successfully on both occasions. I will have a look for my template letter tomorrow when I am at work :)
I would be grateful for this, Altered Chaos. It looks like I will have to litigate. I have had a reply back from Oldham’s HB department, in which they say that because the tenant’s daughter had no “letters” to show she was dealing with his estate, they refused to pay her the outstanding housing benefit. They have also quoted some HB regulation that they claim allows them to pay a deceased tenant’s housing benefit to his landlord if he had given them permission to do so while he was alive.
I think they must be well aware that when a person’s estate is uncomplicated and doesn’t involve much money, or any real estate, their representative does not need to apply for probate. So I think this is an excuse for acting improperly.
Also, the daughter was in touch with the tenant’s housing association when she cleared his flat and gave the keys back, and they have not issued her with any invoice for outstanding rent. So in addition I intend to send them a demand to pay what credit is in the tenant’s rent account; or prove he owed arrears.
I could also write to the council’s legal department, but if they take it as a complaint they will string the matter out for months (every complaint system I have ever come across seems designed to put obstacles in the way of the person with the complaint, to encourage them to give up.) I think litigation would produce a faster and fairer result.
Apologies for forgetting to post the template, manic week!
Here you are…
Re: Letter before County Court action
I am writing on behalf of my client in respect of his/her [insert name of benefit] entitlement following the successful tribunal decision made on [insert date].
Mr/Mrs/Miss has asked me to notify you that s/he intends to bring a claim against the SSWP in the County Court for the [benefit] that has not been paid. The basis of claim is detailed below….
[set out brief history/facts of case]
The SSWP within one month of receipt of the tribunal decision was entitled to request the decision be set-aside or to seek permission to appeal to the Upper Tribunal. The deadline for further action by the SSWP was [insert date].
I have spoken with Her Majesty’s Courts and Tribunals Service and have confirmed that no application by the SSWP has been made. If no challenge is made within the time limits then the SSWP is required to implement the tribunal decision (namely pay the appellant his/her benefit entitlement from [insert date] to present).
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.
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.
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.
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.”
I have been instructed to advise that if payment of the [benefit] arrears and ongoing entitlement has not been processed within the next 14 days [name of client] will be commencing action in the County Court.
but, to bring court proceedings on behalf of the estate, the daughter will need to take out a grant of probate/letters of administration, since the money is not hers, but that of the estate. There is no way round this. the local probate court can help her do that, but be aware that the fees have recently gone up. as it is a small claim, she won’t recover costs from the council, save (I think, i don’t do small claims!) possibly the actual fees (not the probate fees)
a visit to her local councillor might be a good idea.
but, to bring court proceedings on behalf of the estate, the daughter will need to take out a grant of probate/letters of administration, since the money is not hers, but that of the estate. There is no way round this. the local probate court can help her do that, but be aware that the fees have recently gone up. as it is a small claim, she won’t recover costs from the council, save (I think, i don’t do small claims!) possibly the actual fees (not the probate fees)
a visit to her local councillor might be a good idea.
Thanks, this has saved me a bit of research time. I was in the process of exploring the legalities with the help of my supervisor, who is a FILEX.
Referring to Altered Chaos’s standard letter: I have helped clients to threaten to sue the DWP in the past for not paying benefits due to them (including missing giros way back when). I should have remembered that the method is not a small claim, but recovery of a debt. For that, you can claim court costs.