Dealing with delays

 

Martin Williams considers the tactics available to advisers to combat delays in the administration of benefits and tax credits.

Delays in determining benefit or tax credit claims and appeals can have devastating effects on claimants. This is particularly true in the case of means tested benefits where those entitled will by definition have very little or no income. Where the delay relates to housing or council tax benefit, there can be serious consequences in terms of problems with bailiffs and, ultimately, homelessness. Continuing cuts in staffing at a time of increasing numbers of claimants due to the recession and a huge increase in appeals (due to the recession and the introduction of employment support allowance), make a further increase in instances of delay likely. This article considers the tactics which can be used by advisers to combat delays.

Where there is a delay in determining a claim for a benefit or tax credit, advisors are, by definition, faced with the problem that there is no decision to appeal against.

The legislation governing the determination of claims for benefits administered by the Department for Work and Pensions (DWP) and the Revenue is silent on how long it should take to determine a claim and issue a decision. The Secretary of State has a duty, however, to decide claims under section 8 of the Social Security Act 1998 and this implies a duty is to determine claims within a reasonable time.1 Para 51 Home Secretary v S [2007] EWCA Civ 546

The difficulty is that what is a reasonable time can depend, at least in part, on the volume of other claims awaiting consideration and the number of Decision Makers available to deal with them.2 R v Secretary of State for Social Services & Chief Adjudication Officer ex p Child Poverty Action Group [1990] 2 QB 540, CA

The facts of an individual case, however, may mean that a particular claim should be determined outside of a normal queuing system (whereby claims are determined in the order they are received). This would be the case if there was evidence that the delay in a particular case was giving rise to hardship beyond that which one might expect another claimant to be suffering (for example where the claimant is completely destitute and there are small children or serious health issues).3 Para 51 Home Secretary v S [2007] EWCA Civ 546 makes this point in relation to asylum applications and the same must be true for social security cases.Advisors complaining about delay in determining a claim should therefore ensure they flag up any such particular difficulties.

Advisors should also be aware of the possibility of obtaining interim payments of benefit where it is impracticable for the claim to be determined immediately.4 Reg 2(1)(b) Social Security (Payments on Account, Overpayments and Recovery) Regulations 1988 (SI 1988 No. 664)Decision Makers should consider whether to make an interim payment in every case where a decision is delayed.

Making an official complaint about a delay (and using MPs and the Parliamentary Ombudsman) can also cut through delays, but the only ultimate legal remedy is judicial review. Many advisers will not be able to initiate proceedings for judicial review (for which a Legal Aid Certificate is normally needed to protect the claimant against costs), but often the threat of proceedings is enough to trigger a decision or payment. It is often appropriate, therefore, for an adviser to issue a pre-action judicial review letter (there is a pro-forma version available online5

The most common ground for judicial review will be that the Decision Maker has acted unlawfully in failing in his or her duty to make a decision within a reasonable time given the particular facts of the case and / or in failing to make interim payments. The DWP aims to decide claims in 2010/11 within the following times: JCP Annual Report and Accounts 2009-2010:

Where it takes significantly longer than this, it is arguable that DWP is acting unlawfully in failing to comply with its published policy, as was held in AA (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 12:

If the case relates to an EEA national who is exercising an EC right in the UK, the refusal to make interim payments may be contrary to EU law, and if the DWP is taking longer to determine a claim from an EU migrant than from a UK national, this may constitute unlawful discrimination. Article 24 Directive 2004/38

Note that compensation may be available where a claimant has experienced a delay.6 See the DWP 'Financial Redress for Injustice Resulting from Maladministration':

Much of the above, will also apply in Housing and Council Tax Benefit (HB/CTB) cases. It should be noted, however, that the requirement to make decisions and / or interim payments are considerably more stringent and therefore favourable for claimants.

There is a duty to decide valid claims within 14 days 'or as soon as reasonably practicable thereafter'. Reg 89 HB Regulations 2006 (SI 2006 No. 213); Reg 75 CTB Regulations 2006 (SI 2006 No. 215)Furthermore, a Local Authority must make HB payments on account to any private tenant where it cannot determine a claim within 14 days and this is not due to the claimant failing without good cause to provide requested information or documents.7 Reg 93 HB Regs

Again, if the Local Authority does not issue payments on account or determine the claim within 14 days, the only remedy other than a complaint (which can be pursued to the local Government Ombudsman) is judicial review.

In the year 1st April 2009 to 31 March 2010, receipts of appeals by the tribunal increased by 40% compared with the preceding year, but there was only a 14% increase in cases disposed.8 Annual Statistics for the Tribunal Service 2009-2010, Tribunals Service, 30th June 2010 This represents a huge increase in delays and backlogs in the system, which is likely to increase with staffing cuts and increases in appeals as claimants of incapacity benefits are reassessed under the work capability assessment.

It may be helpful to consider delays in the processing of appeals in three stages.

The rules provide that the Decision Maker must send a response to the appeal to the Tribunal as 'soon as reasonably practicable'.9 Rule 24(1)(b) Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008 No. 2685)It is unfortunate that a specific time-limit has not been insisted upon by the Tribunal Procedure Committee. A draft version of the Procedure Rules did contain a time-limit of 42 days from receipt of the appeal but this was removed. Advisors with examples of significant delay in Decision Makers preparing appeals may wish to provide these to the Administrative Justice and Tribunals Council who are seeking the imposition of a fixed time limit.10 These can be sent to: Administrative Justice and Tribunals Council, 81 Chancery Lane, London WC2A 1BQ.

In terms of minimising delay for clients, in cases where there is an issue of particular urgency, provided an appeal has been filed with the Decision Maker, advisers can write directly to the First-tier Tribunal asking it to direct the Decision Maker to produce the response and/or list the appeal for hearing in any event.11 R(H)1/07 Such applications are unlikely to be entertained unless there are special reasons why the case should be dealt with urgently, or there has already been significant delay. As the Commissioner in R(H)1/07 held:

This does not mean that the parties are free to disregard the usual procedures at will. Claimants cannot simply bypass the local authority and lodge appeals with the tribunal. Likewise, they cannot usually expect the tribunal to deal with a case before the local authority has had a chance to prepare the submission and assemble the papers for the parties and the tribunal. But what the tribunal is free to do is to allow matters to be handled differently if circumstances require it.

Advisers will need to prepare and submit full details of the case in the absence of the Decision Maker's submission and copies of all the relevant documents (ideally in the form of a properly numbered and indexed appeal bundle).

Once the tribunal service is aware of the appeal, it is responsible for ensuring that the case is dealt with 'fairly and justly', which includes 'avoiding delay so far as compatible with proper consideration of the issues'.12 Rule 2(2)(e) TP (FT) Rules 2008

Advisers can request urgent consideration of the appeal by making an application for case management directions to be given13 Rule 6 TP (FT) Rules 2008 that the appeal is expedited. Such requests will need to clearly explain the consequences for the claimant of delay and explain why it would be fair and just to determine the case quickly. Claimants and their representatives requesting urgent consideration of an appeal will also themselves need to be flexible in terms of preparing their cases quickly and making themselves available for hearings at short notice.

If the First-tier Tribunal refuses to expedite an appeal, advisers should consider whether there are grounds for judicial review. It may be arguable, depending on the particular facts, that a failure to deal with a case sufficiently quickly (for example to hold a hearing of a housing benefit matter before possession proceedings in the County Court which are brought on mandatory grounds) gives rise to procedural impropriety on the basis that the tribunal has failed to deal with the case fairly and justly as required.14 Rule 2(3)(a) TP (FT) Rules 2008

Judicial review proceedings against actions (or inaction as will often be the complaint in delay cases) of the First-tier Tribunal must now be commenced in the Upper Tribunal.15 ss 15-21 Tribunals, Courts and Enforcement Act 2007 and the Direction of the Lord Chief Justice on classes of cases specified under section 18(6) TCEA.There do not appear to be any pre-action protocols specified for such proceedings. However, advisers should probably inform the First-tier Tribunal of the same matters which would be covered in a pre-action letter used for High Court proceedings. The Upper Tribunal publishes a form for filing an application for permission for judicial review.16 Rule 10(3)(a) Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008 No. 2698) so again it is usually necessary for the claimant to have a legal aid certificate.

Where the First-tier Tribunal has decided a case, there are often delays by the DWP, Revenue of Local Authority in implementing the decision and making any payments due.

The rules seek to prevent the DWP from making interim payments where an appeal is pending.17 Reg 2(1) and (1A) PAOR Regs 1988 In cases which raise issues of European Union law (for example cases where the claimant is refused benefit because they are said not to have a right to reside), it is strongly arguable that this is unlawful. The European Court of Justice arguably requires that where a dispute involves EU law, the national court dealing with the case (or by implication the Decision Maker) has the power to make interim payments.18 Factortame Ltd v Secretary of State for Transport (No. 2) [1991] 1 A.C. 603, [1991] 1 All E.R. 70 It is unclear, however, whether a First-Tier or Upper Tribunal could order the making of interim payments and whether this only applies where the appeal cannot be decided because there is a case pending in the ECJ.

Outside the social security system, Local Authorities have various duties which may require them to provide support to people who would otherwise be destitute. Such duties are outside the scope of this article but advisers assisting claimants who are destitute pending resolution of their appeal may need to look to such remedies in addition to pursuing the tactics discussed above.

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