Won at 1st Tribunal now going to Upper Tribunal

benniebert

Quick question?


I won at a 1st Tier Tribunal hearing (Council Tax Benefit) on all points. Full benefit awarded.


The LA requested a Statement of Reasons for the positive decisions. The judge in the statement now says that on reflection she thinks that she came to the wrong decision on 3 of the 4 parts. She therefore grants the LA permission to go to the Upper Tribunal to have the earlier 3 decisions overturned.
The LA have now requested a hearing at the Upper Tribunal.


This is way above my head now. I took the matter to the 1st tier and was OK. But this is a whole new ball game. The first judge now admits to making a wrong decision???


What are the chances of being funded for a professional to take over from me? And where would I find one? Been to AgeUK - too difficult for them, CAB & DIAL same answer. Or is it simply the case that you only get justice if you have the money to pay for it?

skateykatey

The odds are that you won't need a professional. It's not a case of money equalling justice.

It's not the same as a criminal proceeding where some slick solicitor can sway the Judge.

The UT Judge will look purely at whether the Tribunal erred in law, and decide accordingly.

Even of you were a millionaire and it was found that the Tribunal erred in law it wouldn't stop the Judge at the upper tribunal overturning the decision made.

It may be that although the tribunal judge made the wrong decision on 3 of 4 parts but the outcome would have been the same...

NYM

benniebert wrote: »

Quick question?


I won at a 1st Tier Tribunal hearing (Council Tax Benefit) on all points. Full benefit awarded.


The LA requested a Statement of Reasons for the positive decisions. The judge in the statement now says that on reflection she thinks that she came to the wrong decision on 3 of the 4 parts. She therefore grants the LA permission to go to the Upper Tribunal to have the earlier 3 decisions overturned.
The LA have now requested a hearing at the Upper Tribunal.


This is way above my head now. I took the matter to the 1st tier and was OK. But this is a whole new ball game. The first judge now admits to making a wrong decision???


What are the chances of being funded for a professional to take over from me? And where would I find one? Been to AgeUK - too difficult for them, CAB & DIAL same answer. Or is it simply the case that you only get justice if you have the money to pay for it?

I thought if someone was in receipt of Guarantee Pension Credit it entitled them to council tax benefit ? Is that not the case ?

benniebert

NYM wrote: »

I thought if someone was in receipt of Guarantee Pension Credit it entitled them to council tax benefit ? Is that not the case ?

It does, but the events I am talking about happened pre making a claim for PC whilst living on Contribution ESA & my wife's State Pension. It wasn't until much later that I found out that I should have been claiming a top up means tested benefit as well.


It was during this time that the DWP ceased my ESA claim as they said that I was fit for work. I failed to appeal in time, but eventually won that argument at a Tribunal. Eventually all was sorted but the back pay of ESA (13 months worth) caused the problem.


I was claiming CT benefit and when the back pay hit the bank account the council decided to revise the CT benefit going back over the previous 13 months.


I appealed against this revision to the CT benefit and argued that Regulation 50 only refers to income and not benefits. This is what I won on. With benefits the backpay should be treated as received in one week only, not spread back over the previous 13 months as there was no entitlement during those 13 months - entitlement is the key.
There were other elements as well involved such as the councils failure to use net income after tax, not gross before tax when assessing CTB (Contribution ESA is taxable being paid every January via Self Assessment).

NYM

benniebert wrote: »

It does, but the events I am talking about happened pre making a claim for PC whilst living on Contribution ESA & my wife's State Pension. It wasn't until much later that I found out that I should have been claiming a top up means tested benefit as well.

It was during this time that the DWP ceased my ESA claim as they said that I was fit for work. I failed to appeal in time, but eventually won that argument at a Tribunal. Eventually all was sorted but the back pay of ESA (13 months worth) caused the problem.

I was claiming CT benefit and when the back pay hit the bank account the council decided to revise the CT benefit going back over the previous 13 months.


I appealed against this revision to the CT benefit and argued that Regulation 50 only refers to income and not benefits. This is what I won on. With benefits the backpay should be treated as received in one week only, not spread back over the previous 13 months as there was no entitlement during those 13 months - entitlement is the key.
There were other elements as well involved such as the councils failure to use net income after tax, not gross before tax when assessing CTB (Contribution ESA is taxable being paid every January via Self Assessment).

:huh: It's all so confusing to me...:o

Do you subscribe to this site, maybe they can offer you some good advice ? Benefits and Work

rogerblack

benniebert wrote: »

I appealed against this revision to the CT benefit and argued that Regulation 50 only refers to income and not benefits. This is what I won on. With benefits the backpay should be treated as received in one week only, not spread back over the previous 13 months as there was no entitlement during those 13 months - entitlement is the key.

My limited understanding is that this is not legally correct.
The decision for ESA creates retroactive entitlement.

In any case - the council is allowed to request a statment of reasons about the decision so the judge can more fully explain why.

It may be that when the judge was creating these reasons, he realised that his assumptions as to the law were faulty - meaning that there is a real likelyhood he was wrong.

The upper tier tribunal will decide on if the law was or was not correctly applied in your case and either confirm the verdict, overturn it, or send it back to the first tier tribunal with directions as to how to deal with it.

benniebert

rogerblack wrote: »

My limited understanding is that this is not legally correct.
The decision for ESA creates retroactive entitlement.

In any case - the council is allowed to request a statment of reasons about the decision so the judge can more fully explain why.

It may be that when the judge was creating these reasons, he realised that his assumptions as to the law were faulty - meaning that there is a real likelyhood he was wrong.

The upper tier tribunal will decide on if the law was or was not correctly applied in your case and either confirm the verdict, overturn it, or send it back to the first tier tribunal with directions as to how to deal with it.

Thanks. My case isn't just a simple benefit one. It is bound by case law and god knows what else. A submission was made by a professor of law from the local university on my behalf. At the Upper Tribunal I have no help whatsoever and am completely lost - I don't even know what the argument is all about other than it centres on Regulation 50 and trying to determine what the words/phrases mean and how the various parts of that regulation should be interpreted.

dippy3103

I thought back pay of benefits was treated as capital, not income retrospectively?

benniebert

dippy3103 wrote: »

I thought back pay of benefits was treated as capital, not income retrospectively?

Thanks, that was what I thought and later confirmed by the 1st tier tribunal Judge.

However for some reason the Judge when she was preparing the Statement of Reasons for her decision, changed her view. Why I don't know.

There is about £1000 riding on this decision being the extra Council Tax that I will have to pay for the year if the backdated money is to be treated as income arising over the months that the back pay related to.

To be honest I only received £1250 of back pay!!! If I had been aware that this may have happened I would not have bothered making the claim for benefit in the first place and just claimed Pension Credit instead like everybody else does .
As it is, out of the £3500 of annual income I got, £1523 had to be paid to the council for CT and another £600 had to go to the tax man. I was left with £1377 of ESA. If I had claimed PC instead, I would have had the £3500 plus no CT or Tax to pay!!