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STATUTORY
INSTRUMENTS
2001 No. 1002
SOCIAL SECURITY
The Housing Benefit and Council Tax Benefit
(Decisions and Appeals) Regulations 2001
Whereas a draft of this Instrument was laid before Parliament in accordance
with section 80(1)(a) of the Social Security Act 1998[1] and section
68 of, and paragraph 20(4) of Schedule 7 to, the Child Support, Pensions and
Social Security Act 2000[2] and
approved by resolution of each House of Parliament;
Now, therefore, the Secretary of State for Social
Security, in exercise of powers conferred by sections 5(1)(hh) and 6(1)(hh)
of the Social Security Administration Act 1992[3], sections
7(6)(a) and 79(4) to (7) of the Social Security Act 1998 and section 68 of,
and paragraphs 3(1), (4) and (6), 4(4) and (6), 6(2)(e), (4), (7) and (8),
8(7)(c) and (8), 10(1), 12, 13, 14(2), 15, 16(3) and (5), 19(1), 20(1)(b) and
(3) and 23(1)[4] and (2) of
Schedule 7 to, the Child Support, Pensions and Social Security Act 2000 and
all other powers enabling him in that behalf, by this Instrument, which
contains only regulations made by virtue of, or consequential upon, those
provisions of the Child Support, Pensions and Social Security Act 2000 and
which are made before the end of the period of six months beginning with the
coming into force of those provisions[5], after
consultation with the Council on Tribunals in accordance with section 8 of
the Tribunals and Inquiries Act 1992[6], and after
consultation with organisations appearing to him to be representative of the
authorities concerned[7], hereby
makes the following Regulations:
"the
Act" means the Child Support, Pensions and Social Security Act 2000;
"the
Administration Act" means the Social Security Administration Act 1992;
"appeal"
means an appeal to an appeal tribunal;
"appropriate
relevant authority" has the meaning it has in paragraph 4 of Schedule 7
to the Act;
"benefit
week" means a period of seven consecutive days commencing on a Monday
and ending on a Sunday;
"claimant"
means a person claiming housing benefit or council tax benefit or both;
"clerk
to an appeal tribunal" means a clerk assigned to an appeal tribunal in
accordance with regulation 37 of the Decisions and Appeals Regulations 1999;
"Council
Tax Benefit Regulations" means the Council Tax Benefit (General)
Regulations 1992[8];
"Decisions and Appeals
Regulations 1999" means the Social Security and Child Support (Decisions
and Appeals) Regulations 1999[9];
"designated
authority" has the meaning it has in regulation 2(1) of the Work-focused
Interviews Regulations;
"financially qualified
panel member" means a panel member who is an accountant and a member
of -
(a) the Institute of Chartered Accountants in England and
Wales;
(b) the Institute of Chartered Accountants in Scotland;
(c) the Institute of Chartered Accountants in Ireland;
(d) the Association of Chartered Certified Accountants;
(e) the Chartered Institute of Management Accountants; or
(f) the Chartered Institute of Public Finance and Accountancy;
"Housing Benefit
Regulations" means the Housing Benefit (General) Regulations 1987[10];
"legally qualified panel
member" means a panel member who -
(a) has a general qualification (construed in accordance
with section 71 of the Courts and Legal Services Act 1990)[11]; or
(b) is an advocate or solicitor in Scotland;
"official error"
means an error made by -
(a) a relevant authority or a person -
(i) authorised to carry out any function of a relevant
authority relating to housing benefit or council tax benefit; or
(ii) providing services relating to housing benefit or council tax benefit
directly or indirectly to a relevant authority;
(b) an officer of -
(i) the Department of Social Security;
(ii) the Commissioners of Inland Revenue; or
(iii) the Department for Education and Employment,
acting as such;
(c) a person employed by a designated authority acting on behalf of the
authority,
but excludes any error caused wholly or partly
by any person or body not specified in sub-paragraphs (a) to (c) of this
definition and any error of law which is shown to have been an error only by
virtue of a subsequent decision of a Commissioner (construed in accordance
with paragraph 23(1) of Schedule 7 to the Act) or the court;
"panel member" means
a person appointed to a panel constituted under section 6 of the Social
Security Act 1998;
"partner"
means -
(a) where a claimant is a member of a married or
unmarried couple, the other member of that couple; or
(b) where a claimant is polygamously married to two or more members of his
household, any such member;
"person affected"
shall be construed in accordance with regulation 3;
"President" means the
President of appeal tribunals appointed under section 5 of the Social
Security Act 1998;
"principal parties"
has the same meaning as in paragraph 7(4) of Schedule 7 to the Act;
"relevant authority"
has the same meaning as in paragraph 1(1) of Schedule 7 to the Act;
"relevant decision"
has the same meaning as in paragraph 1(2) of Schedule 7 to the Act;
"work-focused
interview" has the same meaning as in regulation 3 of the Work-focused
Interviews Regulations;
"The Work-focused
Interviews Regulations" means the Social Security (Work-focused
Interviews) Regulations 2000[12].
(3) In these
Regulations, unless the context otherwise requires, a reference -
(a) To a numbered regulation is to the regulation in
these Regulations bearing that number;
(b) in a regulation to a numbered paragraph is to the paragraph in that
regulation bearing that number.
(a) any notice or other
document is required to be given or sent to the clerk to an appeal tribunal,
the Secretary of State or the relevant authority, that notice or document
shall be treated as having been so given or sent on the day that it is
received by the clerk to the appeal tribunal, the Secretary of State or the
relevant authority, as the case may be; and
(b) any notice (including notification of a decision of a relevant authority)
or other document is required to be given or sent to any person other than
the clerk to an appeal tribunal, the Secretary of State or the relevant
authority, as the case may be, that notice or document shall, if sent by post
to that person's last known address, be treated as having been so given or
sent on the day it was posted.
(b) in the case of a person who is liable to make payments in respect of a
dwelling and is unable for the time being to act -
(i) a receiver appointed by
the Court of Protection with power to claim, or as the case may be, receive
benefit on his behalf,
(ii) in Scotland, a tutor, curator, judicial factor or other guardian acting
or appointed in terms of law administering that person's estate, or
(iii) an attorney with a general power or a power to receive benefit
appointed by the person liable to make those payments under the Powers of
Attorney Act 1971[13] or the
Enduring Powers of Attorney Act 1985[14];
(c) a person appointed by the relevant authority under regulation
71(3) of the Housing Benefit Regulations or regulation 61(3) of the Council
Tax Benefit Regulations (appointments for persons unable to act);
(d) a person from whom the relevant authority determines that an overpayment
is recoverable in accordance with Part XIII of the Housing Benefit
Regulations or excess benefit is recoverable in accordance with Part XI of
the Council Tax Benefit Regulations; or
(e) a landlord or agent acting on behalf of that landlord and that decision
is made under regulation 93 (circumstances in which payment is to be made to
a landlord) or 94 (circumstances in which payment may be made to a landlord)
of the Housing Benefit Regulations.
(2) Paragraph (1)
only applies in relation to a person referred to in paragraph (1) where the
rights, duties or obligations of that person are affected by a relevant
decision.
(a) the person affected makes
an application for a revision within -
(i) one month of the date of
notification of the original decision; or
(ii) such extended time as the relevant authority may allow under regulation
5;
(b) within one month of the date of
notification of the original decision that authority has information which is
sufficient to show that the original decision was made in ignorance of, or
was based upon a mistake as to, some material fact; or
(c) an appeal is made under paragraph 6 of Schedule 7 to the Act against the
original decision within the time prescribed in regulation 18 or, in a case
to which regulation 19 applies the time prescribed in that regulation, but
the appeal has not been determined.
(2)
An original decision may be revised or further revised by the relevant
authority which made the decision, at any time by that authority, where that
decision -
(a) arose from an official
error; or
(b) was made in ignorance of, or was based upon a mistake as to, some
material fact and as a result of that ignorance of or mistake as to that
fact, the decision was more advantageous to the person affected than it would
otherwise have been but for that ignorance or mistake.
(3)
Notwithstanding the provisions in paragraph (1), a relevant decision which
adopts a rent officer's determination may be revised or further revised by
the relevant authority which made the decision at any time in consequence of
a rent officer's redetermination, substitute determination or substitute
redetermination made under the Rent Officers (Housing Benefit Functions)
Order 1997[15] or the
Rent Officers (Housing Benefit Functions) (Scotland) Order 1997[16] which
resulted in an increase in the amount which represents the rent for the
purposes of calculating entitlement to benefit.
(4) For the purposes of calculating the period in
paragraph (1)(a)(i), where a written statement is requested under regulation
10, no account shall be taken of any period beginning with the day on which
the relevant authority received the request for a statement and ending with
the day on which that statement was provided to that person.
(5) Where the relevant authority requires further
evidence or information in order to consider all the issues raised by an
application under paragraph (1)(a) ("the original application"),
that authority shall notify the applicant that further evidence or
information is required and, if it does so, the decision may be
revised -
(a) Where the evidence or information so requested is
provided within one month of the date of the notification or such longer
period as the relevant authority may allow; or
(b) where such evidence or information is not provided within the period
referred to in sub-paragraph (a), on the basis of the original application.
(6) A relevant
decision that is prescribed under paragraph 6(2)(e) or (4)(a) of Schedule 7
to the Act may be revised at any time.
(7) A relevant decision made in respect of a claim or
an award may be revised where -
(a) a decision in respect of that claim or that award is
given by an appeal tribunal, Commissioner or court on appeal against a
decision ("decision A");
(b) the relevant decision was made after decision A; and
(c) the relevant decision would have been made differently had the relevant
authority been aware of that appeal decision at the time it made the relevant
decision.
(8) An application
for a revision shall be made in writing and delivered, by whatever means, to
the relevant authority or, in a case to which the Work-focused Interviews
Regulations apply, either to the relevant authority or to an office of a
designated authority which displays the ONE logo[17].
(9) The relevant authority may treat an application
for supersession as an application for a revision.
(10) Paragraph (1) shall not apply in respect of a
change of circumstances which occurred since the decision was made or where
the relevant authority has evidence or information which indicates that a
relevant change of circumstances will occur.
(a) contain particulars of
the grounds on which the extension of time is sought and shall contain
sufficient details of the decision which it is sought to have revised to
enable that decision to be identified;
(b) be made within 13 months of the date of notification of the decision
which it is sought to have revised; and
(c) be delivered, by whatever means, to the relevant authority or, in a case
to which the Work-focused Interviews Regulations apply[18] either to
the relevant authority or to an office of a designated authority which
displays the ONE logo.
(4) The application
shall not be granted unless the person affected satisfies the relevant
authority that -
(a) It is reasonable to grant the application;
(b) the application for revision has merit; and
(c) special circumstances are relevant to the application and as a result of
those special circumstances it was not practicable for the application to be
made within the time limit specified in regulation 4.
(5) In determining
whether it is reasonable to grant the application for an extension of time,
no account shall be taken of the following -
(a) that the person affected was unaware of or
misunderstood the law applicable to his case (including ignorance or
misunderstanding of the time limits imposed by these Regulations); or
(b) that a Commissioner or a court has taken a different view of the law from
that previously understood and applied.
(6) In determining
whether it is reasonable to grant an application, the relevant authority
shall have regard to the principle that the greater the amount of time that
has elapsed between the expiration of the time specified in regulation 4 for
applying for a revision and the making of the application for an extension of
time, the more compelling should be the special circumstances on which the
application is based.
(7) An application under this regulation for an
extension of time which has been refused may not be renewed.
(ii) it is anticipated that a change of circumstances will occur;
(b) which is erroneous in point of law
or made in ignorance of, or was based upon a mistake as to, some material
fact provided that the decision -
(i) cannot be revised on the
basis of that error, ignorance or mistake; and
(ii) is not a decision prescribed in regulations under paragraph 6(2)(e) or
(4)(a) of Schedule 7 to the Act;
(c) which adopts a rent officer's
determination and in consequence of a rent officer's redetermination,
substitute determination or substitute redetermination made under the Rent
Officers (Housing Benefit Functions) Order 1997 or the Rent Officers (Housing
Benefit Functions) (Scotland) Order 1997 the amount which represents the rent
for the purposes of calculating entitlement to benefit is reduced;
(d) of an appeal tribunal or of a Commissioner that was made in ignorance of,
or was based upon a mistake as to, some material fact;
(e) which is prescribed in regulations made under paragraph 6(2)(e) or (4)(a)
of Schedule 7 to the Act;
(f) in respect of a person who -
(i) is subsequently the
subject of a separate decision or determination as to whether or not he took
part in a work-focused interview; or
(ii) had been held not to have taken part in a work-focused interview, but
who had, subsequent to the decision to be superseded, attained the age of 60
or ceased to reside in an area in which there is a requirement to take part
in a work-focused interview.
(3)
The reference to a change of circumstances in paragraph (2)(a) shall include
changes of circumstances specified in regulation 75(2) of the Housing Benefit
Regulations[19] or
regulation 65(2) of the Council Tax Benefit Regulations[20] (changes
of circumstances which do not need to be notified).
(4) A decision which may be revised under regulation
4 may not be superseded under this regulation except where -
(a) Circumstances arise in which the appropriate relevant
authority may revise that decision under regulation 4; and
(b) further circumstances arise in relation to that decision which are not
specified in regulation 4 but are specified in paragraph (2) or (5).
(5) Where the
appropriate relevant authority requires further evidence or information from
the applicant in order to consider all the issues raised by an application
under paragraph (2) ("the original application"), the authority
shall notify the applicant that further evidence or information is required
and, if it does so, the decision may be superseded -
(a) Where the applicant provides further relevant
evidence or information within one month of the date of notification or such
longer period of time as the appropriate relevant authority may allow; or
(b) where the applicant does not provide such evidence or information within
the time allowed under sub-paragraph (a), on the basis of the original
application.
(6) The appropriate
relevant authority may treat an application for a revision or a notification
of a change of circumstances as an application for supersession.
(7) An application under this regulation shall be
made in writing and delivered, by whatever means, to the relevant authority
or, in a case to which the Work-focused Interviews Regulations apply, either
to the relevant authority or to an office of a designated authority which
displays the ONE logo.
(3) For the purposes of determining the date on which
a superseding decision is to take effect in accordance with paragraph (2), in
a case where -
(a) the change of circumstances is a change of
circumstances that is required by regulations to be notified, other than any
change of circumstances to which regulation 68A of the Housing Benefit
Regulations or regulation 59A of the Council Tax Benefit Regulations applies;
and
(b) that change of circumstances is notified more than one month after it
occurs, or such longer period as may be allowed under regulation 9; and
(c) the superseding decision is advantageous to the claimant,
The date of notification of the change of
circumstances shall be treated as the date on which the change of
circumstances occurred.
(4) Where the superseding decision is advantageous to
the claimant and is made on the ground that the superseded decision was made
in ignorance of, or was based upon a mistake as to, some material fact, the
superseding decision shall take effect from the first day of the benefit week
in which -
(a) Except where sub-paragraph (b) applies, the
appropriate relevant authority first has information which is sufficient to
show that the superseded decision was made in ignorance of, or was based upon
a mistake as to, some material fact;
(b) where the superseding decision was made pursuant to an application, that
application was received by the appropriate relevant authority.
(5) For the purpose
of paragraphs (3)(c) and (4), the reference to the decision which is
advantageous to the claimant includes a decision specified in regulation
17(2).
(6) A superseding decision made in consequence of a
rent officer's redetermination, substitute determination or substitute
redetermination under the Rent Officers (Housing Benefit Functions) Order
1997 or the Rent Officers (Housing Benefit Functions) (Scotland) Order 1997
shall take effect on the date on which a change of circumstances is to take
effect in accordance with regulation 68 of the Housing Benefit Regulations as
if that determination or redetermination were the relevant change of
circumstances.
(7) Where a decision is made superseding a decision
of an appeal tribunal or of a Commissioner ("the appeal decision")
which -
(a) was made in ignorance of, or was based upon a mistake
as to, some material fact; and
(b) was more advantageous to the claimant than it would otherwise have been
but for that ignorance or mistake,
That superseding decision shall take effect
on the date on which the appeal decision took or was to take effect.
(8) A superseding decision made as a consequence of a
determination which is a relevant determination for the purposes of paragraph
18 of Schedule 7 to the Act (restrictions on entitlement to benefit in
certain cases of error) shall take effect from the date of the relevant
determination.
(a) Include particulars of
the change of circumstances and the reasons for the failure to notify the
change of circumstances on an earlier date; and
(b) be made within 13 months of the date on which the change occurred.
(3)
An application for the purposes of paragraph (1) shall not be granted unless
the appropriate relevant authority is satisfied that -
(a) it is reasonable to
grant the application;
(b) the change of circumstances notified by the applicant is relevant to the
decision which is to be superseded; and
(c) special circumstances are relevant and as a result of those special
circumstances it was not practicable for the applicant to notify the change
of circumstances within one month of the change occurring.
(4)
In determining whether it is reasonable to grant the application, the
appropriate relevant authority shall have regard to the principle that the
greater the amount of time that has elapsed between the date one month after
the change of circumstances occurred and the date the application for a
superseding decision is made, the more compelling should be the special
circumstances on which the application is based.
(5) In determining whether it is reasonable to grant
an application, no account shall be taken of the following -
(a) that the applicant was
unaware of, or misunderstood, the law applicable to his case (including
ignorance or misunderstanding of the time limits imposed by these Regulations);
or
(b) that a Commissioner or a court has taken a different view of the law from
that previously understood and applied.
(6)
An application under this regulation which has been refused may not be
renewed.
(a) of the decision against
which the appeal lies;
(b) in a case where that notice does not include a statement of reasons for
the decision, that he may request the relevant authority to provide him with
a written statement of the reasons for that decision; and
(c) of his right of appeal against that decision.
(2)
Where a written statement of the reasons for the decision is not included in
the written notice of the decision and is requested under paragraph (1)(b),
the relevant authority shall, so far as practicable, provide that statement
within 14 days.
PART III
SUSPENSION AND TERMINATION OF BENEFIT AND OTHER
MATTERS
(a) any payment of housing
benefit or council tax benefit;
(b) any reduction (by way of council tax benefit) in the amount that a person
is or will become liable to pay in respect of council tax,
In the
circumstances prescribed in paragraph (2 ).
(2) The prescribed circumstances are
where -
(a) it appears to the
relevant authority that an issue arises whether -
(i) the conditions for
entitlement to housing benefit or council tax benefit are or were fulfilled;
or
(ii) a decision as to an award of such a benefit should be revised under
paragraph 3 of Schedule 7 to the Act or superseded under paragraph 4 of that
Schedule;
(b) an appeal is pending
against -
(i) a decision of an appeal
tribunal, a Commissioner or a court; or
(ii) a decision given by a Commissioner or a court in a different case, and
it appears to the relevant authority that if the appeal were to be determined
in a particular way an issue would arise whether the award of housing benefit
or council tax benefit in the case itself ought to be revised or superseded;
or
(c) an issue arises
whether -
(i) an amount of housing
benefit is recoverable under section 75 (overpayments) of the Administration
Act or regulations made under that section; or
(ii) an excess payment of council tax benefit under section 76 of the
Administration Act or regulations made under that section has occurred.
(a) in a case to which
regulation 11(2)(a) applies, where the relevant authority is satisfied that
the benefit so suspended is properly payable and no outstanding issues remain
to be resolved;
(b) in a case to which regulation 11(2)(b) applies, an appeal is no longer
pending and the benefit suspended remains payable following the determination
of that appeal.
(2)
Where any of the circumstances in paragraph (1) is satisfied, the relevant
authority shall, so far as practicable, make the payment, or as the case may
be, restore the reduction within 14 days of the decision to make or restore
that payment or reduction.
(a) any payment of housing
benefit or council tax benefit;
(b) any reduction (by way of council tax benefit) in the amount that a person
is or will become liable to pay in respect of council tax,
in relation to
persons who fail to comply with the information requirements (as defined in
paragraph 14 of Schedule 7 to the Act) as provided for in regulations made
pursuant to section 5(1)(hh) and 6(1)(hh) of the Administration Act (person
required to satisfy the information provisions).
(2) For the purposes of section 5(1)(hh) in so far as
it applies to housing benefit and section 6(1)(hh) of the Administration Act
the prescribed persons are -
(a) a person in respect of
whom payment of benefit or a reduction has been suspended under regulation
11(2)(a);
(b) a person who has made an application for a decision of the relevant
authority to be revised or superseded;
(c) a person in respect of whom a question has arisen in connection with his
award of benefit and who fails to comply with the requirement in regulation
73 of the Housing Benefit Regulations or regulation 63 of the Council Tax
Benefit Regulations to furnish information or evidence needed for a
determination whether a decision on an award should be revised under
paragraph 3 or superseded under paragraph 4 of Schedule 7 to the Act.
(3)
The relevant authority shall notify any person to whom paragraph (2) refers
of the requirements of this regulation.
(4) A person to whom paragraph (2) refers
must -
(a) furnish the information
or evidence needed within a period of -
(i) one month beginning
with the date on which the notification under paragraph (3) was sent to him;
or
(ii) such longer period as the relevant authority considers necessary in
order to enable him to comply with the requirement; or
(b) satisfy the relevant authority
within the period provided for in paragraph (4)(a) that -
(i) the information or
evidence so required does not exist; or
(ii) it is not possible for him to obtain the information or evidence so
required.
(5)
Where a person satisfies the requirements in paragraph (4), the relevant
authority shall, so far as practicable, make, or as the case may be restore,
the payment within 14 days of the decision to make or restore that payment.
(a) under regulation 11 and
who subsequently fails to comply with an information requirement; or
(b) under regulation 13 for failing to comply with such a requirement,
shall cease to
be entitled to the benefit from the date on which the payments or reduction
were so suspended, or such earlier date on which entitlement to benefit
ceases.
(2) Paragraph (1) does not apply -
(a) subject to
sub-paragraph (b), where not more than one month has elapsed since the end of
the period under regulation 13(4) for the provision of information;
(b) where payment of benefit or a reduction has been suspended in part under
regulation 11 or regulation 13.
(a) any housing benefit or
council tax benefit paid or any reduction in the amount that a person is
liable to pay in respect of council tax is greater or is awarded for a longer
period in consequence of a decision made under paragraph 3 of Schedule 7 to
the Act;
(b) the amount of housing benefit or council tax benefit in payment or
reduction in the amount a person is liable to pay in respect of council tax
would have been greater but for the operation of the Administration Act in
suspending the payment of, or disqualifying a claimant from receiving, some
or all of the benefit;
(c) as a result of the decision, a denial of, or disqualification for the
receiving of, housing benefit or council tax benefit is lifted, wholly or in
part; or
(d) in consequence of the revised decision, housing benefit or council tax
benefit paid is not recoverable by virtue of or as a consequence of section
75 or 76 of the Administration Act, or an amount so recoverable is reduced.
(3)
Where a decision as revised under paragraph 3 of Schedule 7 to the Act is not
more advantageous to the appellant than the decision before it was revised,
the appeal shall be treated as though it had been brought against the
decision as revised.
(4) The appellant shall have a period of one month
from the date of notification of the decision as revised to make further
representations as to the appeal.
(5) After the expiration of the period specified in
paragraph (4), or within that period if the appellant consents in writing,
the appeal to the appeal tribunal shall proceed except where, in the light of
further representations from the appellant, the relevant authority further
revises its decision and that decision is more advantageous to the appellant
than the decision before it was revised.
(a) revises a decision
under paragraph 3 of Schedule 7 to the Act;
(b) following an application for a revision under regulation 4, does not
revise; or
(c) supersedes a decision under paragraph 4 of Schedule 7 to the Act,
subject to
paragraph (2), the period of one month shall begin to run from the date of
notification of that revision or supersession, or following an application
for a revision, the date the authority issues a notice that it is not
revising the decision.
(4) Where a dispute arises as to whether an appeal
was brought within the time limit specified in this regulation, the dispute
shall be referred to, and be determined by, a legally qualified panel member.
(5) The time limit specified in this regulation for
bringing an appeal may be extended in accordance with regulation 19.
(a) if the application is
granted there are reasonable prospects that the appeal will be successful; or
(b) it is in the interests of justice for the application to be granted.
(6)
For the purposes of paragraph (5)(b), it is not in the interests of justice
to grant an application unless the panel member is satisfied
that -
(a) any of the special
circumstances specified in paragraph (7) are relevant to the application; or
(b) some other special circumstances exist which are wholly exceptional and
relevant to the application,
and as a result
of those special circumstances, it was not practicable for the appeal to be
made within the time limit referred to in regulation 18.
(7) For the purposes of paragraph (6)(a), the special
circumstances are -
(a) the applicant or a
partner or dependant of the applicant has died or suffered serious illness;
(b) the applicant is not resident in the United Kingdom; or
(c) normal postal services were disrupted.
(8)
In determining whether it is in the interests of justice to grant the
application, the panel member shall have regard to the principle that the
greater the amount of time that has elapsed between the expiration of the
time within which the appeal is to be brought under regulation 18 and the
making of the application for an extension of time, the more compelling should
be the special circumstances on which the application is based.
(9) In determining whether it is in the interests of
justice to grant an application, no account shall be taken of the
following -
(a) that the applicant was
unaware of or misunderstood the law applicable to his case (including
ignorance or misunderstanding of the time limits imposed by these
Regulations); or
(b) that a Commissioner or a court has taken a different view of the law from
that previously understood and applied.
(10)
An application under this regulation which has been refused may not be
renewed.
(11) The panel member who determines an application
shall record a summary of his decision in such written form as has been
approved by the President.
(12) As soon as practicable after the decision is
made, a copy of the decision shall be sent or given to the principal parties
to the proceedings.
(a) be in writing on a form
approved for the purpose by the relevant authority or in such other format as
the relevant authority may accept;
(b) be signed by the person who has a right of appeal under paragraph 6(3) of
Schedule 7 to the Act;
(c) be delivered, by whatever means, to the relevant authority, or in a case
to which the Work-focused Interviews Regulations apply, either to the
relevant authority or to an office of a designated authority which displays
the ONE logo;
(d) contain particulars of the grounds on which it is made; and
(e) contain sufficient particulars of the decision or subject of the
application to enable that decision or subject of the application to be
identified.
(2)
A form which is not completed in accordance with the instructions on the
form, except where paragraph (3) applies, does not satisfy the requirements
of paragraph (1), and may be returned by the relevant authority to the sender
for completion in accordance with those instructions.
(3) Where the relevant authority is satisfied that
the form, although not completed in accordance with the instructions on it,
includes sufficient information to enable the appeal or application to
proceed, it may treat the form as satisfying the requirements of paragraph
(1).
(4) Where an appeal or application is made in writing
otherwise than on the approved form ("the letter"), and the letter
includes sufficient information to enable the appeal or application to
proceed, the relevant authority may treat the letter as satisfying the requirements
of paragraph (1).
(5) Where the letter does not include sufficient
information to enable the appeal or application to proceed, the relevant
authority may request, in writing, further particulars.
(6) Where a person to whom a form is returned or from
whom further particulars are requested duly completes and returns the form or
sends the further particulars and the form or particulars, as the case may
be, are received by the relevant authority within -
(a) 14 days of the date on
which the form was returned to him, the time for making the appeal shall be
extended by 14 days from the date on which the form was returned;
(b) 14 days of the date on which the relevant authority's request was made,
the time for making the appeal shall be extended by 14 days from the date of
the request;
(c) such longer period as the relevant authority may direct, the time for
making the appeal shall be extended by a period equal to that longer period
directed by the relevant authority.
(7)
Where a person to whom a form is returned or from whom further particulars
are requested does not complete and return the form or send further
particulars within the period of time specified in paragraph (6) -
(a) the relevant authority
shall forward a copy of the form, or as the case may be, the letter, together
with any other relevant documents or evidence to a legally qualified panel
member; and
(b) the panel member shall determine whether the form or the letter satisfies
the requirements of paragraph (1), and shall inform the relevant authority
and appellant or applicant of his determination.
(8)
Where -
(a) a form is duly
completed and returned or further particulars are sent after the expiry of
the period of time allowed in accordance with paragraph (6); and
(b) no decision has been made under paragraph (7) at the time the form or the
further particulars are received by the relevant authority,
the form or
further particulars shall also be forwarded to the legally qualified panel
member who shall take into account any further information or evidence set
out in the form or further particulars.
(9) The relevant authority may discontinue action on
an appeal where the appeal has not been forwarded to the clerk to an appeal
tribunal or to a legally qualified panel member and the appellant or an
authorised representative of the appellant has given written notice that the
appellant does not wish the appeal to continue.
(a) a financially qualified
panel member and a legally qualified panel member where the appeal may
require consideration by members of the appeal tribunal of issues which are, in
the opinion of the President, difficult and which relate to -
(i) profit and loss
accounts, revenue accounts or balance sheets relating to any enterprise;
(ii) an income and expenditure account in the case of an enterprise not
trading for profit; or
(iii) the accounts of any trust fund; and
(b) in any other case, a legally
qualified panel member.
(2)
The President may determine that an appeal tribunal constituted in accordance
with paragraph (1) shall include an additional member drawn from the panel
constituted under section 6 of the Social Security Act 1998 for the purposes
of providing experience for that additional member or for assisting the
President in the monitoring of standards of decision making by panel members.
(3) Subject to paragraph (2), an appeal tribunal
determining a misconceived appeal as a preliminary issue in accordance with
regulation 23(1) of these Regulations and regulation 48 of the Decisions and
Appeals Regulations 1999 shall consist of a legally qualified panel member.
(2) Regulations 38A[24], 41[25],
44, 45, 52 and 57B[26] of the
Decisions and Appeals Regulations 1999 shall not apply in relation to the
procedure to be followed in respect of appeals under Schedule 7 to the Act.
(3) The provisions of the Decisions and Appeals
Regulations 1999 referred to in paragraph (1) shall have effect as if a
reference to -
(a) the Secretary of State, except in regulations 40[27]
(withdrawal of appeal or referral) and 58[28]
(application for leave to appeal to a Commissioner from an appeal tribunal),
were a reference to a relevant authority;
(b) party to the proceedings were a reference to principal parties;
(c) "these Regulations" in regulations 46(1)(b) (appeals which may
be struck out) and 57A[29]
(provisions common to regulations 56 and 57) were a reference to the Housing
Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001;
(d) a person in regulation 51 (postponement and adjournment) included a
reference to a relevant authority;
(e) a relevant enactment, in regulations 56 and 57 (correction of accidental
errors and setting aside decisions) were a reference to Schedule 7 to the
Act; and
(f) in regulation 58 -
(i) section 12 and 13 were a reference to paragraphs 6
and 7 of Schedule 7 to the Act; and
(ii) the Board were a reference to a relevant authority.
Signed by authority of the Secretary of State for Social Security.
Angela Eagle
Parliamentary Under-Secretary of State, Department of Social Security
1. No appeal shall lie against a decision
made by virtue of, or as a consequence of, any of the provisions in Part X
(claims), Part XII (payments) and Part XIII (overpayments) of the Housing
Benefit Regulations except a decision under -
(a) regulations 72(5),
(11), (15)[30], 72A(1)[31],
72B(1) and (4)[32] (date of claim);
(b) regulation 91(3) (adjustments to payments to take account of underpayment
or overpayment on account of rent allowance);
(c) regulation 93[33]
(circumstances in which payment is to be made to a landlord);
(d) regulation 94[34]
(circumstances in which payment may be made to a landlord);
(f) regulation 101 (person from whom recovery may be sought);
(g) regulation 103 (diminution of capital); or
(h) regulation 104 (sums to be deducted in calculating recoverable
overpayments).
2. No appeal
shall lie against a decision made by virtue of, or as a consequence of, any
of the provisions in Part VIII (claims), Part X (awards or payments of
benefit) and Part XI (excess benefit) of the Council Tax Benefit Regulations
except a decision under -
(a) regulations 62(5), (10), (11), (12) and (16)[36]
and 62A(1)[37], 62B(1)
and (4)[38] (date of
claim);
(c) regulation 86 (person from whom recovery may be sought);
(d) regulation 89 (diminution of capital); or
(e) regulation 90 (sums to be deducted in calculating recoverable excess
benefit).
3. Subject to
paragraphs 1(f) and 2(c), no appeal shall lie against a decision as to the
exercise of discretion to recover an overpayment of housing benefit or, as
the case may be, excess council tax benefit.
4. No appeal shall lie against a decision of
a relevant authority under paragraph 16(3)(a) or (b) and (4) of Schedule 7 to
the Act (decisions involving issues that arise on appeal in other cases).
5. No appeal shall lie against a decision
under Part III of these Regulations of a relevant authority relating
to -
(a) suspension of a payment of benefit or of a reduction;
or
(b) restoration following a suspension of payment of benefit or of a
reduction,
except a decision that entitlement to benefit
is terminated under regulation 14.
These Regulations are made by virtue of, or in consequence of, provisions in
the Child Support, Pensions and Social Security Act 2000 (c. 19) ("the
Act"). The Regulations supplement changes introduced by the Act to the
decision-making process for housing benefit and council tax benefit and to
the new appeals system.
The Regulations are made before the end of the period of six months beginning
with the coming into force of the relevant provisions in the Act and are
therefore exempt from the requirement in section 172(1) of the Social
Security Administration Act 1992 (c. 5) to refer proposals to make these
Regulations to the Social Security Advisory Committee and are made without
reference to that Committee. The Regulations are made after consultation with
organisations appearing to the Secretary of State to be representative of the
authorities concerned in accordance with section 176(1) of the Social
Security Administration Act, and after consultation with the Council on
Tribunals in accordance with section 8 of the Tribunal and Inquiries Act 1992
(c. 53).
Part I contains provisions relating to citation, commencement, interpretation
and service of documents. It also includes a provision as to treating a
person as a person affected by a decision.
Part II makes provision as to the circumstances in which a relevant authority
may revise or supersede decisions, when such decisions take effect and
related procedural matters.
Part III makes provision for the suspension and termination of housing
benefit and council tax benefit and decisions involving issues that arise in
appeals in other cases.
Part IV and the Schedule make provision in respect of rights of appeal and
procedure for bringing appeals.
Part V makes provision in respect of appeal tribunal composition and
procedure.
These Regulations do not impose a charge on business.
