i was in the process of getting a LTAHAW appeal to tribunal for a client, last thing i did was submissions, then fax to TAS to find out when tribunal would be as we shoul dhave heard by now.

response.... deferred as Fraud office thinking about a criminal prosecution.

my view... shoudl go to tribunal first .. as if she wasn't LTAHAW (as she, and others, say she was not) then no criminal matter to be pursued .. and i've no faith in the prosecutors understanding the benefit system anyway!

what representations have been successful for people in this sort of case?

I'm a bit unclear. Who has deferred the appeal? TTS? Or the DWP?

If the DWP, R(H) 01/07 may be of inerest - see para 34.

In any case, all of the following suggest the existence or otherwise of criminal proceedings should not (normally) result in a Tribunal hearing being delayed:

CH/1820/2006 (p8)
CH/2047/2007 (p18)

Also, CH/1220/2005 - see p22 & p31+. This went on to be the "Mote" set of cases:

Mote v R (2007) EWCA Crim 3131
Mote v SoS DWP & Chichester DC (2007) EWCA Civ 1324

For what it's worth, I entirely agree cases should (normally) be dealt with by Tribunal FIRST and your lack of faith in criminal prosecutors is entirely justified (based on experience). In addition to the LT aspect, even if a Trib finds there is LT, there are invariably other relevant arguments that are absolutely within a Tribunal's jurisdiction such as:

1) unlawful ending of benefit
2) failure to follow supersession and/or revision requirements
3) failure to notify claimants properly
4) failure to undertake enquiries to establish the true circumstances during the period of the overpayment
5) failure to assess actual (or underlying) entitlement based on the actual circumstances
6) incorrect calculations of alleged overpayments

In terms of the criminal proceedings, watch out for (amongst other things):

1) contradictory information in the indictment(s) as to the parties and/or the alleged period(s) of overpayment - it is not unprecedented for indictments to include periods of overpayment that are plainly not attributable to an offence.

2) attempts by the DWP/LA to ignore "Parmer". In short, any benefits the clmt WOULD have been entitled to should be deducted from any overpayment(s) for the purposes of sentencing.

Er, good luck....

it's the DWP Fraud office who are planningn the prosecution, i gather (not that they bothered to tell me, LOL).

Thanks for that, i shall go dig em out and write to tribunal again!

kevin, do you have these two that you mentioned?

CH/1820/2006
CH/2047/2007

no trace on the upper tribunal decisions list at all....or anywhere else save, in relation to the first, a quote from it by neil bridgeman on this forum earlier this year...

another point occurred to me...

jurisdiction ....

since any prosecution depends on the claimant IN FACT having been LTAHAW and failing to declare that, the mags, surely, don't have jurisdiction to decide that issue, being one for the first tier tribunal ....

Similarly, the mags also don't have jurisdiction to decide what claimant's benefit entitlement was

Until the first tier tribunal (and any necessary subsequent appeal) has been dealt with, surely there is no case upon which a charge of fraud can be made?

clearly, if the tribunal had already decided against my client and any appeal process been exhausted, that would be another matter and i would be bowing out gracefully in favour of some criminal practitioner instructed by my client....

Another poster on this board has already been advising defendant's Counsel to make exactly this argument (the poster may or may not choose to identify him/herself). So far, none of the criminal cases has been adjourned. However, in one case in particular, the defendant's solicitor has indicated a firm intention to seek a quashing of conviction in the event the Tribunal finds in favour of the claimant/defendant.

The argument extends to the procedural issues I set out above. Without proper revisions/supersessions, there is no valid decision and therefore the original entitlement remains in place. So, for example, no LT decision and, in turn, no overpayment.

Of course, there is nothing to stop the DWP/LA restarting the decision making process from scratch but, until that process has been properly completed, no valid decision / overpayment.

as i thought! cheers kevin!

reply from tribunal:

"this case is to be kept on hold pending prosecution proceedings as any decision of the Tribunal would not be binding in criminal proceedings because the prosecution may have evidence to which the tribunal service is not privy"

My view, this decision of the tribunal chair is itself appealable to upper level .... am I right?

and frankly, if the DWP have other information, they should have given me it anyway!

Straight answer Claire is that I don't know for sure. But, if memory serves correctly, doesn't the Upper Tribunal now have jurisdiction for some JR matters?

off to check out UT jurisdiction....

i confess my first thought was JR but can argue that this is a decision of a first tier judge that's wrong in law and so appealable to UT

Claire: Just on the offchance this adds to anything....

I'm a bit perplexed the Tribunal has relied on the line of reasoning for staying - i.e. "...any decision of the Tribunal would not be binding in criminal proceedings because the prosecution may have evidence to which the tribunal service is not privy..."

In fact, that is positively bizarre.

If the Tribunal has any doubts as to the evidence before it, it has the power to issue directions requiring the LA to provide ALL info / evidence that is relevant to an appeal (does CH/3240/2007 help re evidence?). In fact, surely that IS the approach the Tribunal should be taking? Any evidence the LA is relying on should in any case have been disclosed by now and, as I understand it, any "unused material" cannot be subverted if requested.

Further, even if the LTAHAW is found to be so at Court, that still doesn't necessarily mean there has been an offence. If it turns out there is no overpayment in any case, Passmore / King may apply (depends on which part of s.111A or s.112 is being relied on - assuming this is a SSAA case). Surely the calculation of the o/p is very much a matter for a FtT?

Maybe there is more to this than meets the eye, but at face value this has all the hallmarks of a Tribunal passing the buck.

Mission / hobby horse: Suggestion for change in the law.... Where a criminal prosecution is being pursued in Social Security benefit cases, an experienced specialist Upper Tribunal Judge should automatically be engaged to assist the Court.

"Maybe there is more to this than meets the eye, but at face value this has all the hallmarks of a Tribunal passing the buck"

I so agree.

i can't see that JR will be relevant, as i can't see that i can't appeal this decision....having read the regs!

I think you can appeal it, but assuming the existing direction wasn't given by a regional tribunal judge would it not be simpler to apply to the regional judge for a direction that the case be heard and not stayed pending any criminal prosecution? You'd still have the UT appeal option left open if that failed.

yes - that occurred to me later, so i've written asking for a new direction, citing even more cases, and said i will appeal if i don't get it and asked for leave in advance!

update - got our tribunal date, hurray!

Quite right too!

but i turned up this afternoon, somewhat early to sit and read papers, having been out all morning - to be told it was adjourned, it's "policy to let a prosecution be deatl with first" - i said, we'll appeal! client and her husband and his parents had all taken day off work; ggrrrhhh. they tried to ring me this morning, they said, but of course i was out - as one does, arranged other stuff to do on the way - and a bit late anyway!

JR through the Upper Tribunal?

or, i was thinking, appeal the decision that was made this morning, which i gather will come in the form of a tribunal decision.

spitting feathers....

I don't think a decision to adjourn is appealable, only JR-able.

oh.....

well, i did look all the rules up a bit ago .. and thought that one can?

but end result, off to upper tribunal.

and of course i told them already i would appeal...

the latest in this saga:

" we don't have to give a statement of reasons as the decision was made without a hearing"

Doh.....i think NOT!

and ariadne, I double checked the rules, and this is an appealable decision. of course, I won't get leave from first tier, will have to persuade UT to give me leave... - because it is not an "excluded decision" within S11(5) of the Tribunals Courts and Enforcement Act

Claire, just in case you are unaware....

Assuming the "decision" is a decision that is subject to SoR requests etc, a failure to produce a SoR has been found to be fatal to the decision - see:

CH/2912/2007
CH/4066/2007

If you can't track these down, let me know and I'll mail them to you this evening.

Claire

Brilliant thread this. Cliff hanging stuff and I can't wait to see the final outcome. John Grisham eat your heart out.

kevin, be glad of those anyway!

PETE - thanks, it is good.. but not for my client! whilst i like having my brain engaged, i'd much rather my client got her tribunal date!

anyway, if the end result is the first tier tribunal gets its hand slapped, all to the good, and this one should make BAILII (the third case i'll have there... if it does!)

PS - i've found the 4066/2007 decision, kevin, on the UT site, but not the other.

and thinking about it further, it's a JR type case as well as, of course, the tribunal has fettered its discretion (if it had any) in adopting a policy of not dealing until after criminal prosecution.

There is case law in which a decision reached after a REFUSAL to adjourn - ie, a final decision determinative of the appeal - has been held to be a mistake of law in the cirumstances, or at the very least a denial of justice. That is not the same thing as an interlocutory decision, which merely progresses (or for that matter hinders) the disposal of the case. In such a decision there is no outcome and no final decision to be appealed.
This is basic legal principles. I persoanlly think it is wrong for the Tribunal to adjourn the decision in this case; but I think that it is judicial review or nothing, and not a matter for appeal. Had the Tribunal gone ahead, and the client found liable to repay a massive overpayment, and then been cleared of any wrongdoing at the mags court (and I mean really cleared, the sort where they say "The defendant leaves the court without any shadow of blame on her character", not just "not guilty" which only means "the prosecution hasn't done its job properly so we have to acquit") - big breath - then I don't suppose you would have been particularly happy either.

you're right, ariadne, i wouldn't have been, but at least it would have been the right way round...

having said that, the regs say that i can appeal, so i will, and if the UT wants to treat it as a JR instead, no doubt they will ....the regs seem to suggest that the only things for JR are decisions that can't be appealed, and this seems not to be included in the things that can't be appealed.

as a comparison - if I thought a DDJ or DJ were wrong on an interlocutory matter in court, i could appeal that ...

so this is the same sort of thing.

anyway, i'll run with it and see where we end up...

decision to adjourn revised pursuant to Rule 37(d) of the SEC rules 2008: "there has been some other procedural irregularity in the proceedings"

that being, no reasons given for adjourning pending outcome of criminal prosecution. appeal to be listed and consequential directions given.

and apparently DWP want tribunal heard as well (not that they've told me that, of course!).

we finally have (another) date....6th June

delays, anyone? i know, that's another thread!

we won. very good judge, didn't at all understand why previous tribunal had been adjourned, entirely agreed with my view on the question of tribunal or mags, very hacked off with DWP who didn't send PO (although their investigating officer turned up, so he was hacked off as well, and couldn't help his own case).

overall happy day.

judge ALSO concluded that my client had NOT been living together with her new husband in the three month period between getting married and him moving in.

Good on you Claire. Nice job!

Mon 07-Jun-10 04:08 PM by Neil Bateman

This will be old hat to many Rightsnetters and it repeats something in another post, but this case shows it is worth repeating:

Commissioner Mesher in CH/3744/2006 (at para 14): “In my no doubt unrepresentative experience as a Commissioner, the standard of examination of questions of true entitlement to benefit in criminal prosecutions is often woeful, so that claimants with some kind of case will often be better off getting the expert evaluation of an appeal tribunal.”