pagename=Appeals;pagedate=01/11/2008 12:16;

The Appeal system

Decisions & Appeals regs

The main way of challenging a decision on housing benefit is to appeal.

Appeals can only be made once a decision has been made on a claim for benefit by a claimant. Legally the result of an appeal only affects the benefit of a claimant whose benefit has been appealed, but a housing benefit office is likely to change the benefit of all claimants affected in the same way if one or two appeals are successful. Most decisions taken by a housing benefit office can be appealed.

Examples of decisions that can be appealed include:

a decision to limit the rent on the grounds that the rent is unreasonably high;
a decision to pay benefit direct to a landlord or to refuse to pay the benefit direct to the landlord;
a decision (given in the correct form) that there has been an overpayment or that an overpayment is recoverable;
a decision on how much income a claimant has;
a failure to award a premium;
starting benefit from the wrong date;
incorrectly calculating the amount of ineligible service charges;
a refusal to pay benefit on two homes;
termination of benefit following a suspension for investigation;
a decision about whether or not a claim has been validly made.

It has now been established that there is a right of appeal when a claimant asks a council to supersede a decision and they refuse to do so. An example of this would be when the claimant reported a change in circumstances, such as a rent rise, and the council failed to act on it. This means that when a change in circumstances is reported to a council it must issue a decision notification, even if it does not intend to change the rate of benefit. The only exception to this is if the request sent by the claimant only contains abuse or entirely irrelevant information (An example of irrelevant information is when a claimant reports that the price of cat food has gone up.)

Decisions & Appeals regs Schedule

It is not possible to use the appeal process to do the following:

argue that benefit should not be suspended, although it is possible to appeal against termination of benefit following a suspension (complain to the Ombudsman if the benefit is suspended without good reason or for an unreasonable length of time); OR
dispute the figures supplied by the Pension Service as the assessed income figure for people on pension credit. (The pension credit appeal system can be used to do this.)
Dispute the time and manner or frequency of payment;
argue about whether or not to make a payment on account;
challenge a decision about whether to appoint an appointee;
dispute a decision about whether or not to pay to a landlord after a death;
challenge the method used to recover an overpayment.

Other examples of decisions that you would not use the appeal process to challenge, because they are not decisions on individual claims, include:

a general statement that a housing benefit office will not meet rents above a certain level in advance of a claim for benefit being made or any statement of principle not related to an individual claim. There is no legal way of challenging this (but a housing benefit appeal can be made when those principles are applied to an individual claim).
a delay in dealing with a claim or making a decision;
a refusal to process an appeal request;
a decision to refer a rent to a rent officer.

Who can use the appeal process

The claimant can use the appeal process to challenge any appealable decision.

Decisions & Appeals reg 3

A landlord of tenants getting rent allowances can use the appeal process in two situations:

either the claimant or the landlord has asked that benefit be paid direct to the landlord, but the housing benefit office has refused to do so, OR
the housing benefit office are asking the landlord to refund an overpayment and the landlord thinks that there has not been an overpayment or that the overpayment is not legally recoverable or that the overpayment should be recovered from the tenant.

CH 5216 2001

A landlords right of appeal over the issue of whether there has been a recoverable overpayment was established in a number of cases, most notably a case heard by a tribunal of commissioners in 2003. There is also a right of appeal on the question of whether an overpayment is one which can never be recovered from the landlord. A landlord in an overpayment case can argue at appeal that

there has been no overpayment;
the overpayment is not for the amount stated;
the overpayment is one of those that is not legally recoverable from anyone;
the overpayment is one of those that is only legally recoverable from the tenant.

CH 4234 2004

But if you accept that the overpayment could legally be recovered from your organization or the tenant then you cannot argue at a tribunal that it is more reasonable to recover it from the tenant.

CH 4234 2004

If the council sent both parties notifications when it started the recovery process, and these notifications said that the council thought that the overpayment was legally recoverable from both the landlord and the tenant, then the time limit for any appeal starts from the date of the notification will have run out. But if the council did not send a notification to one party (for example the landlord) and now wants to recover from them then the time limit for the party the council now wants to recover from starts from the date of the change

Department for Work and Pensions lawyers have advised that a council housing officer cannot use the appeal process. But they can support an application by a claimant.

Preliminary stage

It is possible to ask the housing benefit office for a statement of reasons for any decision if reasons have not already been given. This should be done in writing. The statement is supposed to be provided within 14 days. Any time between the request for the statement of reasons and its provision is ignored in working out the time limits for an appeal.

I think this will often be a waste of time and will cause further delays.

How to appeal

An appeal must be made in writing signed by the person who has a right of appeal. This is normally the claimant. In the two cases set out above a member of the landlords staff can sign - BUT NOT IN ANY OTHER CASE.

An appeal must be made in writing. It is possible to use the council's appeal form if they have one or to send a letter. Councils have the power to insist that you use their form but most do not insist on this and some do not have an appeal form. Any letter should be headed clearly "Appeal" The appeal must contain the name and address of of the appellant, details of what the claimant is appealling against and the reasons why the appellant thinks the decision is wrong. If a representative has been appointed then their name and address should be given.

The appeal should be delivered to the housing benefit office by post or by hand. Appeals cannot be made electronically or by fax.

If all the required information is not provided, or the form is not signed by the claimant, the housing benefit office must either send the letter back, giving the appellant 14 days to provide the required information (the 14-day period extends the time limits for appealing) or accept the application if it is reasonable to do so.

If the appellant does not reply or does not provide sufficient information the housing benefit office cannot lapse the appeal on its own initiative. It must forward the appeal to the tribunals service. The tribunal will decide whether the appeal should go ahead

There is no legal aid in appeal tribunals and no procedure for awarding costs apart from travel expenses to hearings.

Time limits

The normal time limit for appealling against a decision is a month. The appeal must reach the housing benefit office But mistake in drafting the regulations has made it possible to appeal even very old decisions. There is no time limit for requesting a statement of reasons, so it can be requested at any time. The time limit for appeals, as set out in schedule 1 of the new regulations, after a statement of reasons is requested is now the LONGER of a month from the decision or 14 days from the date of the statement of reasons. This means that it is possible to request a statement of reasons and then revive the appeal rights. Its not clear how far back you can go.

Under the normal rules the tribunal can decide to hear an appeal that is no more than 12 months outside the normal time limits. If the council supports a late appeal then it will be heard as normal, but if the council does not support the late appeal then it must forward it to the tribunal for a decision on whether or not to hear the case. There is no obligation on the appellant to say why the appeal is late and why it should be heard, but it is obviously sensible to do give this information. The longer the time that has elapsed since the normal time limits expired the more convincing the reasons for lateness must be.

Where there is a time limit for making an appeal or for something else this expires at 5pm on the relevant day. If the time limit runs out on a weekend or public holiday then it is extended to 5pm on the next working day.

After the appeal has been sent in

The housing benefit office will look at the decision again. They may revise their decision. If the decision is revised in favour of the appellant the appeal process is at an end, even if the appellant does not get all that they want. The appellant can start again by putting in a new appeal against the revised decision.

Councils may ask for more information. If the appellant has failed to provide the basic information set out above then they should provide this information. But you are likely to see a lot of requests for information over and above this. Additional information requested should be provided if it is easily obtainable and it is reasonable to provide it. But it is also possible to refuse to provide additional information if this seems to be dragging the matter out. Think about an Ombudsman complaint if a council refuses to process an appeal without a lot of information over and above the minimum required or if the council hangs on to an appeal for a long time without passing it on to the appeal service. It is for the tribunal chair, not the housing benefit section, to decide whether an appeal is valid.

The council may revise its decision in the claimant's favour. This lapses the appeal, even if the amount of any increase is not all that has been asked for. It is then necessary to start again.

If the council revises the decision, but it is not to the appellant's advantage (for example because they cut the money in payment rather than increase it), they will send out a revised decision, but the appeal must automatically go ahead. The council must write to the claimant giving them a month to make any further representations about the new decision. The appeal is delayed for this month or until the appellant replies.

If it does not change its mind the council must issue what is known as a "response". It must do this as soon as reasonably practicable. (Draft rules setting a time limit for this were withdrawn). The response must include the names and addresses of the council where documents can be sent, the names and addresses of any other party to the appeal and, the grounds on which the council opposes the appeal. The council must also provide a copy of any written record of the decision and any statement of reasons and a copy of the appeal made by the appellant with any documents that they attached to the appeal as well as the name and address of any representative. This material must all be sent to the tribunal service and to the appellant.

Once the appellant has received the response from the council they have ONE MONTH in which to reply with their submission.

This is a new rule, brought in with very little consultation. Tribunals can allow submissions later than this. Some tribunals service offices are saying that they will always allow representations that do not meet this deadline, but it would be well to try to keep to it.

Once the tribunals service has received the response from the council they will set up a case file and will send an enquiry form to the claimant or representative. This asks a number of questions such as whether or not an oral hearing is required. The appeal will not go ahead unless this is returned.

An appellant who wants to appoint someone to act for them must put this in writing, either in their original appeal or in a later letter. The representatives name and address must be given. This is important because the tribunals service will then send further papers to the representative and not the appellant. The tribunal can allow someone who has not been appointed as a representative to represent an appellant at the hearing. There would need to be some evidence that they wanted the person to represent them.

An appellant can withdraw their appeal, or any part of it, at any time before the appeal is decided. If this is done before the hearing it must be done in writing. If they later change their mind they can apply to the tribunal to have the appeal reinstated. It is up to the tribunal whether or not it does this

There is nothing in the regulations which gives a council power to reject or strike out an appeal that has been made in the correct form, even if they think that there is no right of appeal or that the appeal is misconceived. They must process the appeal.

A tribunal must consider the situation at the time of the appeal. It cannot decide questions that arise about entitlement after the date of the appeal. For example, if a person is refused benefit on 1st May and appeals, it is not open to the tribunal to decide that they were entitled to benefit from 1st September.

This means that, if the claimants situation changes after the appeal has been sent in, it will be necessary to start another challenge in case the appeal is unsuccessful. If benefit has been refused a new claim should be made. Otherwise the claimant should ask the housing benefit office to supersede the decision.

Delays of up to three months waiting for a hearing or decision are not unusual.

The tribunals service

The tribunals service is staffed by the Department for Constitutional Affairs. Tribunal judges are appointed by the Lord Chancellor. This means that the tribunal service is independent of council housing benefit offices.

A key member of the appeal service staff is the clerk to the tribunal. The clerk is responsible for dealing with the administration of each individual appeal and also has other jobs which are described below.

Appeals are handled by one of a number of regional offices where clerks and other administrative staff work. You can get the latest update of their addresses at www.appeals-service.gov.uk/GenericPages/contactus.htm

Appeal tribunals were reorganised in 2008 as part of the governments plan to group nearly all tribunals that exist under one umbrella. As part of this there are to be common rules and procedures across a number of tribunals. Tribunals will be grouped in a number of "chambers". Social Security tribunals are part of the Social Entitlement Chamber. The appeal tribunal stage is now known as a "First-tier Tribunal". The role of the Social Security Commissioners are taken by an "Upper Tribunal" which continues to make case law. In this material where I say "tribunal" I mean the first tier tribunal unless the upper tier is specifically mentioned.

Preparing for the appeal

Oral or paper hearing?

Statistics released by the Department for Work and Pensions in recent years show that on average about half of all appellants who attend an oral hearing win their appeals. If a representative appears the proportion won is even higher. But only about a quarter of those who ask for a paper hearing win.

I, and nearly all other advisers, strongly advise that you opt for an oral hearing. Although it is a lot more work to go to an oral hearing the rates of success are far higher than for paper hearings.

If you do decide to opt for a paper hearing the appellant, or their representative, should send in their written submissions as soon as possible. The submission should say, in as much detail as possible, why the decision is wrong and what the correct decision should be. Say what regulations and test cases apply and how they should be interpreted. If the test case is an obscure one try to send in a copy of it with your submission. Do get help if you have not done a submission before. Read the section on oral hearings for information about the sort of evidence you should provide and the sort of arguments to present.

If you opt for an oral hearing it is probably you should still send in the same sort of written submission well before the hearing. Although it is possible to present material at the hearing, tribunals are likely to be very unhappy if presented with a lot of stuff on the day and you may find the hearing adjourned so that they can consider it.

If you are having an oral hearing you may want to bring witnesses or get written evidence from other people.

Even if the appellant does not ask for an oral hearing, one will be held if it is requested by the housing benefit office.

A member of the tribunals staff may take decisions on an appeal. These decisions will normally be about how the case should be handled or whether or not it should be struck out. Where this happens an appellant or the council can ask a tribunal to look at the decision again.

There is supposed to be an overriding objective to avoid formality and to seek flexibility in the proceedings, to ensure that all parties are able to participate fully, to use any special expertise available, to avoid unnecessary delay and to deal with the case in proportion to its importance, complexity, anticipated costs and the resources of the parties.

However tribunal judges are now called "Judges", which will strike most appellants as an added formality.

The tribunal has a large number of powers to manage appeals. Key powers enable the tribunal to

allow or require a party to an appeal to amend a document;
issue directions;
strike out (discontinue without deciding) an appeal if a party fails to comply with a direction after being warned that noncompliance would result in striking out;
admit a late appeal for any reason if made no more than 12 months after the time limits;
make an order that certain documents should not be disclosed if it would be likely to cause someone serious harm, but only if it is proportionate to do so;
exclude anyone from a hearing if they are likely to disrupt the proceedings, or may prevent someone form giving evidence or talking freely or their presence was likely to cause harm or their attendance would defeat the purpose of the hearing;
exclude a witness from the hearing until they give their evidence.
extend or shorten the time for complying with any rules, practice direction or direction
consolidate or hear together tow or more cases or parts of cases;
permit or require a party to provide documents, information, evidence or submissions to a tribunal or someone else;
hold a hearing on how to manage the case, or for any other reason
exclude evidence not provided in the correct form or provided late;
require a witness to appear;
rule that a council that has failed to respond to a direction should take no further part in the proceedings.

When there are 2 or more cases that are on common or related issues the tribunal can direct that one or more of the cases should be a lead case. Processing the other cases then stops. When the tribunal has made a decision on a lead case that decision is then binding on all related cases. The tribunal will send a copy of the decision to all the parties in each case where the tribunal thinks that the decision in the lead case applies. However either the council or the appellant in those cases can apply to the tribunal for a decision that the lead case should not apply to that particular appeal. If a lead appeal is withdrawn or struck out the tribunal can decide whether or not to chose another lead case or cases.

Oral appeal hearings

The appellant has to be given 14 days notice of a hearing, unless they have agreed to give up this right in order to have the chance of a quick hearing. Although the appellant will have been asked to give dates on which they and their representative are available, the tribunal does not have to use one of the dates that were requested.

It is possible to ask for a hearing to be postponed, but the tribunals service does not have to agree to this. If there is a really good reasons, such as illness, it is usually possible to get a case postponed, but it can be quite difficult to get a postponement just because a representative or witness has other commitments.

Normally oral appeals are held in public, although it is rare for any members of the public to turn up. The tribunal judge can decide to hold it in private for the interest of national security, morals, public order or children; for the protection of the private or family life of one or more of the parties to the proceedings; where publicity would prejudice the interests of justice; in special circumstances.

Tribunal hearings are held reasonably locally to the appellant, but not necessarily in the same town or area. Rural appellants may find themselves having to travel to a nearby, or not so nearby, town. Venues are supposed to be accessible for people with disabilities. If there are any special facilities that are needed, such as level access, or an interpreter, ask for these when making the appeal or as soon as possible after this. It is even possible to get a tribunal held in the appellants home if they are really ill, but this would be rare.

With the agreement of the tribunal judge any party or witness can be present via a live TV link where this facility is available.

The tribunal will use as its standard reference guide the current edition of Housing Benefit and Council Tax Legislation published by the Child Poverty Action Group, together with any current supplement.

Evidence

A tribunal can accept any kind of evidence, including hearsay evidence, but they must give more weight to the most reliable evidence available. You must prove a case on the balance of probabilities.

If you are using an unreported upper tribunal or commissioners decision or a court case not referred to in Housing Benefit and Council Tax Legislation you should provide copies of the decision.

If you are providing extracts from a document, such as a report, mark the extract so that the tribunal can see where the extract is taken from. If there is to be an oral hearing take the original of the document along.

At the hearing

When you arrive you may have to wait if other cases are being heard. Appeal tribunals often run late. You may find the housing benefit sections officer waiting with you. Unless he/she is presenting another case, he or she should not be in the room with the tribunal unless your side is present. When the tribunal is ready you will both be invited in.

Housing benefit appeals are heard by a tribunal of one person, who must be a lawyer.

An appellant has the right to appear and speak, be accompanied or represented, call witnesses and question the housing benefit office and its witnesses.

You should expect a fairly informal hearing where the claimant and the person from the housing benefit section who gives the reasons for the original decision are treated as equals. It is not like a court of law.

Normally the housing benefit officer is asked to start by explaining why the decision was taken. The tribunal judge and your side can also ask questions about this.

(Jobcentre Plus and Pension Service offices often do not send anyone along to present their case over appeals. A few councils have also adopted this practice.)

Then the claimant or their representative is asked to say why they think the decision is wrong. They can also be asked questions.

Either side can call witnesses or produce written evidence. Tribunals will usually expect written evidence to be produced in advance so that the other side has a chance to look at it. The tribunal judge will normally want to ask questions of both sides.

CDLA 2462 2003

A representative must be allowed to give evidence where their professional skills (for example as a housing or social worker) mean that they can give expert evidence. But a tribunal may prefer that the claimant, if present, gives evidence about simple facts.

CH 3594 2002

It is a breach of the Human Rights Act to present the other side with a bundle of evidence on the day of the tribunal. To ensure fairness at least 14 days notice should be given for detailed documentation unless the other side genuinely agrees to go ahead with less notice.

If you are representing at an appeal it may be a good idea to present the argument by saying: 1) What you think the facts are; 2) how you think the law (including any test-cases) applies to those facts; 3) why you think the housing benefit offices decision is wrong and what the correct decision is.

The job of the clerk at the board hearing is to do the administration. They do not give legal advice or take notes of the proceedings. The tribunal judge must do this.

It is common to see the tribunal judge frantically writing notes whilst asking questions or listening to evidence.

Either side can request an adjournment if they want one. It is up to the tribunal judge whether this is granted. Adjournments usually happen when it is clear that there is a piece of evidence that is not available. Even if the reconvened hearing is before a different tribunal judge it is not normally necessary to begin again at the start.

There is a general duty on tribunals to be inquisitorial - that is, they do not have to decide just on the arguments put forward by each side, but they are not required to consider any matter not raised in the appeal papers or in representations. For example a tribunal considering an appeal over whether a rent was too high under regulation 13 would not have to consider whether there were ineligible service charges (a matter to be raised under regulation 12 and schedule 1) unless one party raised this issue.

R(1) 11/63

If the tribunal does something unfair it may be worth pointing this out at the time. Otherwise you may be treated as having waived your right to raise the matter later.

Appeal tribunals do not set legal precedents, even for identical cases except where the case has been designated a "lead case". Lead cases are only make rulings on other cases identified at the time as linked. But if a housing benefit office regularly has decisions overturned by a tribunal it is likely to change its policy.

Getting the decision of the tribunal

Where all parties agree the tribunal can make a consent order, which resolves matters without a decision being issued.

Othewise the tribunal will ask both sides to leave the room. They may ask you to wait for a decision or may say that they will send you the decision.

Decisions can be made verbally at the hearing or in a written statement or reasons. If a statement of reasons is not issued the either party can request one within a month. There is no provision for late requests..

Either party can apply for a decision to be set aside on the grounds that is wrong in law or that it is in the interests of justice to do so because a document was not received by a party in time, or sent to the tribunal in time or the party or representative was not present at the hearing or there was some other procedural irregularity.

But if you want to challenge the decision of the tribunal you must usually do this by appealing to the Upper Tribunal

Special test-case rules

If there is a test-case pending that might affect the result of an appeal it may not be heard until the test-case has been decided. A test-case is one in which the law which affects the claim is being contested in order to give a definitive interpretation of how it should be interpreted.

There is also a special rule which is designed to stop the government and councils having to pay out large sums of money in back-payments when a test-case goes against them. The rule applies when the Upper Tribunal, High Court (in England and Wales) or Court of Session (Scotland) decides that the interpretation of the law made by the Department for Work and Pensions and being used by most benefit payers is wrong. Where a claimant has had their money reduced or stopped because of the wrong interpretation they will only get back-payment on their claim if they have appealed and not if they have put in a request for a revision. This must normally be done within a month of the original decision. If they have claimed and the claim has not been decided, or they have only asked for a revision or a supersession, then their benefit will only be revised from the date of the decision of the Upper Tribunal or the court.

Implementing the decision of the tribunal (or not)

Normally the housing benefit office will implement the decision of the tribunal. But, if the appellant has won, the housing benefit office may wish to appeal. It does not have to implement the decision if it:

is waiting for a formal decision of an appeal tribunal OR
is considering whether to apply for a statement of reasons of an appeal tribunal decision (within the time limits for doing so) OR
has applied for a statement of reasons and is awaiting it OR
is considering whether to apply for leave to appeal (within the time limits for doing so) OR
where leave to appeal has been granted, is considering whether to appeal OR
a case has been accepted for hearing, but has not been heard or a decision has not yet been given.

A council can implement the decision of the tribunal if it wants to, even if one of the above situations applies. So you can ask them to do so, for example, if hardship to the claimant would otherwise occur.

A tribunal itself can decide to suspend its decision pending a further appeal.

This information is provided to subscribers to the housing benefit briefing and support service from Chris Smith, HB Help. Details from www.hbhelp.co.uk Information is accurate to the best of my knowledge, but you should be aware that only the courts or social security commissioners can make definitive interpretations of housing benefit law.