A fume....

A tenant has come for advice after signing an adpen at the local DC. She has learning difficulties, dyslexia, severe depression and physical health problems that mean that she has been in hospital 15 times in the last 3 years.

Her son started work and she did not notify the DC of his change of circumstance. She says her son did not tell her what his wages were, and from the sound of things takes advantage - once when she came out of hospital he made her refund all the money he had spent on food out of her benefit.

The overpayment is for around £350.

We have tenants with much larger overpayments caused by exactly the same failure to notify of a non-dependants change of income but they haven't been interviewed under caution or if they have they haven't been threatened with prosecution if they don't agree to an adpen.

I've spoken to the person who conducted the interview under caution, who told me that her learning difficulties were obvious but that he didn't make the decision on what action to take.

She won't retract her agreement to an adpen, as another son has just come back to live with her after being in care and she's scared that if she's prosecuted he will be taken away again.

I feel that the Dc have taken advantage of her vulnerability and disabilities and scared her into making an agreement, and I really don't think that they should get away with it. Only way I can think of challenging them is a complaint but any suggestions gratefully recieved.

Rant over

Jaykay,

Get advice from a Criminal Lawyer. An interview under caution is under the provisions of the Police and Criminal Evidence Act. I cannot cite individual bits but if I recall there is something about a persons capacity. Where capacity is in question there are protections for that person such as appropriate adults and such.

If the person did not understand and the interviewer was aware of this (as seems the case) perhaps the failure to withdraw the adpen may give rise to a potential Judicial Review unless of course they have given you appeal rights - like thats going to happen.

How dark was the room where the questioning went on and did they use strobe lights or just the usual bright light in the eyes trick.

Good luck with this one.

350 seems a very low amount. I had an OP of 409 which was adpenned and managed to get it revoked on the grounds it was dubious they'd get a prosecution on what was only a minor failure to disclose. Got to say I had the advantage of help from our HB quality guy and the fraud officer was approachable. What struck me as ludicrous was imposing an adpen for such a low amount.

Our BC only go for adpens where the figure is above 400. That minimum figure, im told by the QC guy, was quoted in some DWP fraud circular so your DC seem a bit harsh.

Paragraph 11.15 of the PACE Code of Practice C is in the following terms.

"A juvenile or person who is mentally disordered or otherwise mentally vulnerable must not be interviewed regarding their involvement or suspected involvement in a criminal offence or offences, or asked to provide or sign a written statement under caution or record of interview, in the absence of the appropriate adult unless paragraphs 11.1, 11.18 to 11.20 apply. See Note 11C".

The exceptions do not apply here.

Liaison with a criminal law practitioner is always important in fraud cases and it would be worth exploring the following points with one.

While we don't know the extent of her learning disability and mental health needs, it MAY be that she lacked the necessary mens rea (criminal intent) to either dishonestly (S111A (1A) SSAA offence) or knowingly (S112(1A)) fail to report a change of circs AND which she also knew would affect her benefit (eg did she read and understand the instructions about what changes of circs to report). If mens rea was absent, no offence has been committed and the ad pen should be revoked.

Also mentioned, not only does PACE set out safeguards around interviews under caution which may not have been followed, but failure to follow these may raise issues about potential admissability of the interview and the validity of any admissions she may have made.

It is be worth getting hold of the council's policy on ad pens to see if there's a minimum level or other grounds for not levying an ad pen. Breaching the policy would be obviously judicially reviewable.

In addition it might be worth asking for a copy of the Authority impact assessments that are a requirement under the duty to have a Disability Equality Scheme as of 6.12.06.

These should set out how they will deal with issues where a public body idetifies where their policies may affect people because of a disabilty and what they intend to do about it.

If they dont have impact assessments or a disability equality scheme get in touch wih the DRC who would be delighted to hear about a public body not undertaking its statutory duty.

Wed 12-Dec-07 12:05 PM by Paul_Treloar_

Unfortunately, the DRC can't be delighted about anything anymore as they no longer exist. We now have the Equalities and Human Rights Commission, which subsumed DRC, CRE and EOC to tie up all equalities strands. At the moment, I'm not sure that there's much in the way of activity coming out of this new body EHRC website - i can't see anything about them taking up cases currently.

I would certainly pursue their complaints procedure, as this is, in my opinion, a clear breach of their duty to avoid discriminating against people on the basis of disability. Have a look at Penwith's statement with regards to The Equality Standard for local government, for example here (pdf copy).

Paul,

Thats an interesting point. Do you think that benefits are a service for the purpose of the DDA95 and if so has the person potentially suffered less favourable treatment. If they have they may potentially have a claim for damages for the less favorable treatment and injury to feelings.

You are of course right about the DRC being swallowed up with all the others by the ECHR. I should have remembered about the DRC for 2 reasons. I am based not to far from their offices and have been interviwed as a caseworker on 3 occassions and blown them all.

I would hazard a guess that the administration of the benefit itself is a relevant service for the purpose of the DDA and therefore covered. For reasons noted by other people above, it would appear to me that an inappropriate interview has occured, with an unfair outcome. Need a legal bod to be certain about the merits of the case, it isn't something that I'm expert in I'm afraid. My knowledge was enhanced by a recent article in DA's members update newsletter February 2007 (pdf copy) - see the first article for DED duties on public bodies by Cathy Casserly, who was a lawyer at DRC at that time.

Hard luck with the interviews btw.

How did they find out about the sons change in circs?

The DDA can have application. There was a court case a few years ago. I cannot remember the citation but I think it was in one of the London boroughs (Lambeth possibly) where the DWP were found to be in breach of the DDA for refusing to provide a private interview room for a deaf man in order to prevent his personal details from being broadcast all over the waitng room area.

Its all good stuff coming out of the Courts recently in respect of the DDA. Earlier this year Lambeth brough possession proceedings against one of its tenants and knew he had mental health problems. The COA said it was not justified and was unlawful.

They said it was of no consequence if they knew or not to stop future attempts to wriggle of the hook I quess.

Anyhow read the Lambeth v Marshall decision (its on Bailii). Its now just when and not if a Landlord will get stung for damages for bringing possession proceedings against people who have a disaability where the reason for the breach of tenancy relates to that disability. Perhaps a decent amount of damages may make other authorities focus their minds a bit and stop them doing it.

Potentially it could open the door to other public body function like payments of benefits and interviews under caution.

Its on my Christmas wish list.

Is there a link to that decision?

I've tried searching Bailii, but it's not finding it.

Ta

I think the case being referred to is actually Lewisham LBC v Malcolm (Disability Rights Commission intervening) <2007> EWCA civ 763.

http://www.bailii.org/ew/cases/EWCA/Civ/2007/763.html

Cathy Casserly, referred to above, was one of the barristers representing the DRC in Malcom. If jaykay is serious about pursuing the discrimmination angle on this one, I could ask for her view as we're friends.

the council should have a policy or code of practice on prosecution which should be in line with CPS code of practice. they should ask whether it is in the public interest to prosecute. See para 5.10

http://www.cps.gov.uk/publications/docs/code2004english.pdf

Sorry about citing poor old Lambeth and yes I should have blamed Lewisham. Its been a long hard day.

Ok, my tuppenceworth.....

If the customer clearly had learning difficulties, and this was apparant at the IUC, then we would have suspended the interview to try and ascertain the level of her difficulty etc. We have had a few who have seemed to have problems understanding and we just simply take it no further - I have worked for a few councils and the DWP (all as a fraud officer) and everyone, without exception, would deal with this the same way. I am very surprised that it has gone further than the inital IUC, although the fraud officer is correct as in its not her decision, all she can do is gather the facts and pass them to her Manager, but that includes details of customers demeaner etc, and any obvious problems.
The second part is the amount, one of the posts quoted mentions a DWP circular with an amount of £400, this has been out of date since Nov 06 (possibly 05, time flies.....). Now there are no financial cut off points, other than a base line of, wait for it....£50 ! Yep, any overpayment over £50 CAN be treated as an adpen/caution etc (given that the offence was admitted for the caution etc etc). However, this is for the DWP, all Councils have there own seperate plocy with their base amounts, but they generally follow DWP's lead.
Every case is different and that is why you will find some adpenned for as low as £100+, but others with a £1000+ op have no action taken against them.........

I wrote for copies of their Prosecution Policy, Administrative Penalty Policy and Disability Equality Scheme impact assessments, and a copy of the interview tape.

The request for the interview tape or transcript was turned down with no explanation so I've written requesting how the client can access it in line with PACE guidance.

I've recieved a letter about the rest stating that they are seeking legal advice about whether they can release them to me - as the information is not normally in the public domain.

Do other councils make this information available? I'm sure there will be no problem with the impact assessments - but what about the other stuff?

JK

Most council's (and the DWP) will not release the tape unless the case is going for prosecution. Having said that, most fraud officers, in my opinion, have no problem whatsoever with the tape being released but any requests for the tape, along with the other stuff you have asked for (apart from the Disability Equality scheme)are normally passed through to legal to sort out. I would have thought though, that the transcript at least should be made available quite easily

I know in the past we have given out our prosecution policy (to a CAB office, IIRC).

JK;


Assuming it is going to appeal, make a further formal request and cite s.35(2) of the DPA in conjunction with para 7.195 of the GM (as at April 2007).

In short, an LA is required to provide all relevant evidence in connection with an appeal - not just the evidence that the LA considers to be relevant. The DPA makes it clear that info requests can't be refused under the DPA if the info / evidence is needed in connection with legal proceedings and/or to exercise legal rights.

If the LA still fail to provide what you have asked for, appeal anyway and in a letter to the Tribunal ask for a direction to be issued REQUIRING the LA to comply. Failing that, I suggest you ask the Tribunal to draw inferences from the LA's failure to provide the evidence.

Hope this helps.