Submitted HB over payment appeal and THEY want to take it to tribunal

[jadesdaddy]

Hi Guys

 

I'm a little puzzled, to cut a quite long story short, I was told yesterday 29th October by a HB officer that they have a letter on file for me dated 28th, that will be posted on the 9th of November after it has been checked by a manager to confirm the decision.

 

Apparently the letter is to inform me that HB are taking my appeal to a tribunal. I thought it worked the other way around, I appeal they do not uphold the appeal and then I ask for it to be heard by a tribunal.

 

The only reason i can think that has caused this strange reaction, is that as a part of my appeal I challenge regulation 100 on a point of law.

 

Is this legal, HB taking my appeal to a tribunal to help make the decision?

 

If it is what happens to my right to be heard by a tribunal if my appeal is turned down?

 

If I'm allowed a hearing will the same people be on the tribunal? (wouldn't seem very fair)

 

If anyone could shed any light on any of this that would be great

 

Thank you for reading

[estellyn]

When you make an appeal, if the decision maker is unable to change their decision, then the case is automatically sent to appeal - this is across the board for all benefits. It is your appeal, not their appeal, they are required by law to send the matter to Tribunal if they can't change their decision.

[antone]

Is this your first appeal against this particular decision? Or has a tribunal previously given you an adverse decision and you are now seeking to appeal that to a second tier tribunal?

 

If it's the former, the standard procedure is that the council will perform an internal reconsideration to see if the decision can be changed (in your favour) without need for a tribunal at all. It sounds like the council has done the recon and decided against you, which means that the case will be automatically referred to a tribunal. Assuming that's the case, it all sounds pretty standard - if you've submitted a formal appeal then you have, in effect, already requested a hearing at a tribunal.

 

The members(s) of the tribunal will not be the same people who made the original decision - indeed, they won't be council staff at all, these hearings are convened by the Ministry of Justice. No tribunal hearing can take place without you being given the opportunity to present your case.

 

Edit: Ninja'd by estellyn.

[jadesdaddy]

Hi thank you for the answer.

 

Yes this is the first time that I have appealed this over payment. As mentioned in my previous post I have been told that before they make a decision the HB want to refer my case to a tribunal. It seems that they are unsure, after my challenge of regulation 100, whether or not they are able to to recover the over payment. It just seems a little strange that they are allowed to consult a tribunal before making a decision on the case

[jadesdaddy]

As far as I am aware in England a failed appeal is not automatically sent to a tribunal, the onus is on the appellant to bring the tribunal into play as it were

[antone]

As far as I am aware in England a failed appeal is not automatically sent to a tribunal, the onus is on the appellant to bring the tribunal into play as it were

 

By appealing the overpayment you have brought the tribunal into play.

[antone]

Hi thank you for the answer.

 

It just seems a little strange that they are allowed to consult a tribunal before making a decision on the case

 

They're not - they've already made a decision. It now goes to tribunal because the decision they've made is unfavourable to you.

[jadesdaddy]

I'm really sorry to contradict you, but I don't see that as being the case. The fact is there has been no decision made on my appeal yet, I was told that HB seem to think that the over payment is recoverable (up to this point in time I have had no correspondence from HB regarding my appeal). When I visited HB I was told that there is a letter waiting on file to be posted to me after it is OK'd by a manager (currently on holiday) after he gives the go ahead HB will send my as yet unanswered appeal to a tribunal, I can only think that they are doing this because I have raised a point of law that they are unsure about.

 

In England it is the norm for an appeal to be refused and then the opportunity of going to a tribunal is offered to the appellant, if the appeal then fails the appellant then has the right to ask the lower tribunal for permission to appeal to the higher tribunal as you rightly pointed out.

[estellyn]

I'm really sorry to contradict you, but I don't see that as being the case. The fact is there has been no decision made on my appeal yet, I was told that HB seem to think that the over payment is recoverable (up to this point in time I have had no correspondence from HB regarding my appeal). When I visited HB I was told that there is a letter waiting on file to be posted to me after it is OK'd by a manager (currently on holiday) after he gives the go ahead HB will send my as yet unanswered appeal to a tribunal, I can only think that they are doing this because I have raised a point of law that they are unsure about.

 

In England it is the norm for an appeal to be refused and then the opportunity of going to a tribunal is offered to the appellant, if the appeal then fails the appellant then has the right to ask the lower tribunal for permission to appeal to the higher tribunal as you rightly pointed out.

 

I've dealt with hundreds of appeals, and your reading of this is wrong. Once a person makes an appeal, if the authority in question are unable to change their decision, the case continues to Tribunal (by law) unless the appellant withdraws the appeal. The letter being sent to you WILL be their answering of your appeal - usually says something like, they are unable to change their decision due to x, so your appeal is being continued to the Tribunal.

 

The appeals officer will be well aware of what regulation 100 is, but with housing benefit, proving official error is more difficult than with other benefits, and these cases will usually go to appeal unless there is compelling evidence (for instance the award notice is incorrect, and can be shown to be). This is because the appellant has to prove that they wouldn't reasonably have known there was an overpayment of benefit occuring.

[id6052]

jakesdaddy

 

there are 2 ways for a case to go to tribunal

 

scenario 1 - requests for review

claimant submited request for a review to the council

council reviews decision

if claimant still not happy, claimant requests matter be referred to tribunal

 

scenario 2 - requests for appeal

claimant submits an appeal

council considers appeal

if council changes decision in claimant's favour, appeal ends

if council does not change the decision in claimant's favour, the appeal is referred to tribunal

 

both methods are correct, it will all depend upon whether you asked for a review or an appeal, you are describing the first scenario, however it looks like it could be second scenario

[antone]

 

both methods are correct, it will all depend upon whether you asked for a review or an appeal, you are describing the first scenario, however it looks like it could be second scenario

 

Yes, and I'm also assuming scenario 2 is correct. I'm not so familiar with council procedures, but from a DWP point of view, if you use the word "appeal" in your request, then that's what you'll get if the recon/review is adverse. The point is that the council can't arbitrarily involve the tribunal.

[jadesdaddy]

Hi guys

 

thanks for your replies. It seems to be the consensus that HB may send my appeal to a tribunal without first asking if I want this step to be taken. I have never heard of this scenareo before, and neither has the woman from HB that spoke with me at a social event on saturday night her words were that HB hate tribunals, which to me makes this all the stranger.

 

should have a letter from them in the next week or so that will clear the matter up.

 

Just to clear up a few things here is how this all unfolded:

 

HB made an overpayment to me, they then wrote to me requesting the over payment be repaid. I wrote back asking for the decision to be reviewed giving my reasons for this. In due course HB replied to my letter admitting that the over payment was indeed a clerical error, and then going on to quote regulation 100, which is basically a catch all for HB mistakes, and states that they cannot be at fault because the onus is on the claimant to notice and report an over payment.

 

The problem that HB face with my case is that have pointed out a fundamental flaw in regulation 100, which I believe exonerates me of responsibility for the over payment.

 

If as I believe HB are the ones requesting a hearing by a tribunal, the only reason for them to do this is for the purpose of advice, because the truth is that they do not know if the flaw that have pointed out in their rule is valid. This to me would seem to be some kind of flaw in the system, if HB cannot make a decision and stand by it but must seek advice from a mechanism that is primeraly put in place so that an appellant may have a second hearing.

[jadesdaddy]

Just noticed this at the end of antones last post "The point is that the council can't arbitrarily involve the tribunal."

 

As far as I am aware this is exactly what the council is dong as they have not yet answered my appeal and the choce to go to tribunal should be mine not theirs

[estellyn]

Hi guys

 

thanks for your replies. It seems to be the consensus that HB may send my appeal to a tribunal without first asking if I want this step to be taken. I have never heard of this scenareo before, and neither has the woman from HB that spoke with me at a social event on saturday night her words were that HB hate tribunals, which to me makes this all the stranger.

 

should have a letter from them in the next week or so that will clear the matter up.

 

Just to clear up a few things here is how this all unfolded:

 

HB made an overpayment to me, they then wrote to me requesting the over payment be repaid. I wrote back asking for the decision to be reviewed giving my reasons for this. In due course HB replied to my letter admitting that the over payment was indeed a clerical error, and then going on to quote regulation 100, which is basically a catch all for HB mistakes, and states that they cannot be at fault because the onus is on the claimant to notice and report an over payment.

 

The problem that HB face with my case is that have pointed out a fundamental flaw in regulation 100, which I believe exonerates me of responsibility for the over payment.

 

If as I believe HB are the ones requesting a hearing by a tribunal, the only reason for them to do this is for the purpose of advice, because the truth is that they do not know if the flaw that have pointed out in their rule is valid. This to me would seem to be some kind of flaw in the system, if HB cannot make a decision and stand by it but must seek advice from a mechanism that is primeraly put in place so that an appellant may have a second hearing.

 

What fundamental flaw?

 

And HB cannot send the matter to Tribunal without making a decision - and the letter will tell you their decision. If you don't want to go to Tribunal all you have to do is say so in writing, but the overpayment decision will then stand. If you asked for an appeal, the endpoint of an appeal is a Tribunal.

 

Decision makers do not ask the Tribunal for advice or a decision - they make their own decision based on regs. Yes HB hate appeals, but yours is a no brainer for them - the claimant has a responsibility to check their award notice and if any detail of income or savings or people on the claim etc, is incorrect, they have to notify the HB section, or the overpayment is deemed to be their fault. This is what is stated in regulation 100.

Edited November 5, 2012 by estellyn

[jadesdaddy]

Hii estellyn

 

Thank you for your response. Here is the thing, when I visited HB the lady i saw noticed that there was a letter waiting to be posted to me on file, she telephoned to find out what it was and why it is not being sent before the 9th November. She was talking on the phone whilst I was there and was told me that the letter is not being sent yet, they think the money is recoverable but want to send the case to a tribunal...... THEY want to send it. The letter is not being issued to me because the decision to send it to tribunal has to be checked by a manager who is on holiday.

 

Now as for the decision being a "no brainer" for them I can only presume that you base your response on regulation 100 and not on the individual circumstances of a case....just like good old HB come to a conclusion without knowing all the facts. In my case there is more to it than simply quoting reg 100 at me and demanding payment. Proven by their reaction to my appeal.

[estellyn]

OK, I give up. Think what you want. Of course they HAVE to send it to tribunal, if they think its recoverable and you've appealled that it is not recoverable, THEY HAVE NO CHOICE, IT HAS TO GO TO TRIBUNAL, BY LAW.

 

You have got an idea into your head about this and don't want to listen to anyone else. You won't be specific about circumstances, and I'm not even sure what you want by posting here. I asked you about the 'fundamental flaw' you think you've uncovered, but you're silent on the issue.

[antone]

I don't really know what else to say. Your question has been answered, multiple times, by three different people. You are free to accept these answers or not, but if you want different answers you'll need to ask a different question. Anyhow, one last time:

 

The council has already reached a decision. It is not asking the Tribunal for help, they have already decided against you. It is therefore, by law, required to send the case to the Tribunal.

[id6052]

jadesdaddy

 

two issues

 

recoverability of overpayments

HB reg 100 is a very draconian piece of legislation and much harsher than the recovery rules for other social security benefits

 

the basic rule is that all overpayments are recoverable

 

there is an exception where the following 3 crieria are satisfied

 

1. the overpayment was as a result of an official error, this usually means the council made a mistake which caused the overpayment
   
2. you did not contribute to the cause of the overpayment
   
3. you could not reasonably have been aware you were being overpaid
   

you have not provided enough information for people to be able to offer detailed advice as to whether overpayment is recoverable or not

but it can be a hard task for a claimant to prove an overpayment is not recoverable as the law is weighted against claimants, this is not to say that you would not be successful, as each case needs to be considered on the individual facts

 

appeals process

when you submit a hb appeal, the council reviews the decision, the outcome of the review will be one of three things: -

 

1. the council changes the decision in your favour - the appeal ends - you get fresh appeal rights against the new decision
   
2. the council does not change the decision - the appeal continues - papers are submitted to HM Courts and Tribunals service for a hearing
   
3. the council changes the decision to your disadvantage - the appeal continues - papers are submitted to HM Courts and Tribunals service for a hearing
   

[jadesdaddy]

Ok guys thanks to those of you that tried to answer the question. All I was asking was about the counils decision to take this appeal to a tribunal, without first informing me that that appeal has not been upheld....THIS HAS NOT HAPPENED!

 

As for the in's and out's of regulation 100 and draconian rules, thank you for that it is much appreciated but it's nothing that I didn't previously know.

 

For the person that is asking about the flaw that I have found in regulation 100, yes I remained silent on it as that is not the issue and neither are the individual circumstances of my case, only the fact that asked a question about tribunals.

 

How can the council take my case to a tribunal without first informing me that my appeal is not upheld...that's it that's all I was asking

[antone]

 

How can the council take my case to a tribunal without first informing me that my appeal is not upheld...that's it that's all I was asking

 

It doesn't sound like they have passed it on to the tribunal yet - they just told you that was the plan since the internal review of the decision went against you. We have no information to indicate that they've actually submitted the case to the Tribunals Service yet. But even if they have, why would you complain? By appealing, this is precisely what you asked them to do.

[jadesdaddy]

You know what guys thanks for everything, but I think a forum where people dont make sweeping judgements and do read what has been written is more the place i was looking for. Not one where people see what they want to see or are only interested in a loophole that i may have found in regulation 100..... You can safely bet on the fact that the loophole that I have found will be quickly and eaily closed again. So last time for anyone actually interested in the question....why would the council submit my appeal to a tribunal without asking if this is what I want or not. Pretty simple question that didn't need complicating

[antone]

You know what guys thanks for everything, but I think a forum where people dont make sweeping judgements and do read what has been written is more the place i was looking for. Not one where people see what they want to see or are only interested in a loophole that i may have found in regulation 100..... You can safely bet on the fact that the loophole that I have found will be quickly and eaily closed again. So last time for anyone actually interested in the question....why would the council submit my appeal to a tribunal without asking if this is what I want or not. Pretty simple question that didn't need complicating

 

Your simple question has been answered multiple times by several people. By appealing, you did ask them to send it to a tribunal. That's your answer.

[jadesdaddy]

what a waste of time too many wanna be solicitors that seem unable to read or have a clue about the appeals system, let alone the law..... the choice of whether or not my appeal goes to a tribunal is for ME to decide NOT the council

[freakyleaky]

I can't believe how ungrateful and down right obnoxious you're being.

It's plain to see that you're question has been answered many times.

The only person not reading on this thread is you!!!

If you're not happy with the answers you've received then you better go and look elsewhere. Maybe you could point out from the start that unless you get the answer you want to hear then you'll not be happy.

 

Everyone on this site gives their time for free to try and help people. Some people are just not worth it.