Suing council- need a case law/statute

thesim

Found what was needed

Guest101

Im so confused by this: the judge wants case law from you?!?!

You ate magistrates court or high court?

Has the council admitted fault?

Sorry need more background on this (i wont have the case law, but i can certainly tell you that something smells fishy, and it isn't my supper!)

somethingcorporate

Theft and Fraud from paying too much council tax? that doesn't sound likely to me - these words have absolutely nothing to do with the poor administration of taxes. Are you sure a JUDGE told you this?

I'd suggest a quick half-hour session with a solicitor would be a starting point.

I agree that this smells very fishy!

zzzLazyDaisy

It sounds like something a small claims court judge might ask. Basically s/he is telling you to produce evidence that you have a case to answer, in law.

Guest101

Daisy - not disputing that a lay judge may ask for this. Your absolutely correct that they would want case law to back up their decision.

But there must be more to this (theft and fraud are criminal matters for one thing, and the police would be involved). What have the council said about this?

lincroft1710

So basically the council didn't calculate your benefit entitlement correctly and you paid more rent and CT than you needed to. They have refunded some overpayment but not all.

I think that unless you can show the judge a precedent where a benefit claimant has successfully sued a council for refund of overpayment, you will lose the case.

I do not know anything about the niceties of benefits legislation, but does it state that benefits must be or can be up to the maximum permitted amount for the relevant income.

Guest101

I must disagree with lincroft on this one. Purely on the basis that just because there is no case law/precedent, does not mean you will lose.

I am unable to help you with the case law, but can certainly tell you, if you have documentation that the council admitted it's error, and have refunded even partially, they have legally admitted the debt. You should not require case law (though of course it does help) to suceed in your action, which is legitimate.

At this stage I would go to Citizen's Advice and ask them if they have any records like this. If anyone will have quick access (72 hours or so) it'll be them. I'm sure this is not the first time this has happened, it just may be the first time the council has not refunded the full amount and decided to take it to court. If so, this is a test case, and that by no means makes your claim any less legitimate.

zzzLazyDaisy

Guest101 wrote: »

Daisy - not disputing that a lay judge may ask for this.

I understand why you might say this, but it is a complete misunderstanding of the process. Even in the small claims court, the judges are qualified solicitors and legally trained. There is in fact no separate jusrisdiction as 'the small claims court' it is merely a part of the county court that deals with claims under £10000. But in ANY court, it is up to the claimant to satisfy the court that s/he has a claim in law. Mostly this is not necessary because the law is clear cut and it is more to do with whether the facts prove a case within the established law. But it is not unusual for the judge to require the claimant to show that s/he has a case in law (laws and morals being completely different). So the judge is directing the claimant to produce the statutory provision or case law on which he relies in his assertion that the defendant is at fault (in law). The defendent can't simply say 'well it is common sense' because the law doesn't always follow common sense.

CIS

I can pretty safely say that if you did by some chance manage to win in the small claims court that the council & DWP would appeal the decision all of the way.

CIS

along the lines of theft, fraud etc where

Can you define why you think it's theft or fraud ?.

Guest101

zzzLazyDaisy wrote: »

I understand why you might say this, but it is a complete misunderstanding of the process. Even in the small claims court, the judges are qualified solicitors and legally trained. There is in fact no separate jusrisdiction as 'the small claims court' it is merely a part of the county court that deals with claims under £10000. But in ANY court, it is up to the claimant to satisfy the court that s/he has a claim in law. Mostly this is not necessary because the law is clear cut and it is more to do with whether the facts prove a case within the established law. But it is not unusual for the judge to require the claimant to show that s/he has a case in law (laws and morals being completely different). So the judge is directing the claimant to produce the statutory provision or case law on which he relies in his assertion that the defendant is at fault (in law). The defendent can't simply say 'well it is common sense' because the law doesn't always follow common sense.

Not disputing what you're saying by any means, I'm aware of the process (to a point), however you clearly have expert knowldge of this and i'll concede. I was just trying to establish that whilst no case law may exist, this does not mean the law does not. The law defintely does not follow common sense!