I spoke to a client today over the telephone who outlined their situation.


Client and husband claiming CTB, both over 65.
Client was prompted to fill in CTB form at routine Pension service benefit check visit.
Client declared savings,but did not ask husband of his savings (as she assumed he didn't have any). They signed the form and submitted, and an amount of CTB was then put into payment.

About 7/8 mths ago they were investigated by the fraud department and undertook an interview under caution. It had come to light that husband had about 12k savings that he had hidden from spouse. This with the declared savings took them above the 16k limit.
They were told that one of 3 options would be applied to them:
Recovery of o/p
Recovery and a penalty
Prosecution.

A few weeks later they received a letter asking for full recovery of o/p within 14 days (total about 2k)
They paid this promptly.
They then assumed that was the end of the matter but (6 mths later)have just received a letter stating that they have to pay a penalty of £600. Client called the office and are attending interview on Monday.
I have looked at cpag and the SSAA(fraud) but can find nothing relating to being given a decision letter before any option was applied, and if the letter to recover overpayment would be seen as CTB final decision.

Client stated she asked why they had waited for 6 mths and was told that they had been waiting for further information from the bank etc.

Would they not have had to have all the information before they requested recovery in the 1st instance or are they entitled to estabish overpayment, get repayment then apply penatly?

Any help would be gratfully appreciated.

Hi - this seems ok (ish). I think the reason for the delay seems a little strange - we would have had all the info before the interview, doesnt seem any point in interviewing then getting info from the bank, unless, which does happen, they were having difficulty getting info from one particular bank but thought they had enough to IUC with anyway....could possibly be that.

But the order seems fine, IUC, establish overpayment, get penalty agreement signed, pay back overpaymnet, pay back penalty.

i cannot see that they could prosecute your client, as although she made a misrepresentation on her claim form, she didn't knowingly or dishonestly make a false statement with a view to obtaining benefit to which she wasn't entitled. can it be assumed they would be prosecuting her husband for causing or allowing a false claim to be made? are the circumstances such that one of the subsections in section 111A or 112 applied to her husbands actions?

they shouldn't be asking for an admin penalty unless they would prosecute...

the delay does sound odd...did your client's husband give consent or provide the information about capital at the time of the investigation?

Yeah, thats right, if they were not happy to prosecute in the first place then they cannot ask for an adpen, the case must be of court quality, however, and this is an old chestnut talked about in these forums before - we do not need to establish any intent to prosecute under sec112(1a) of the SSA, there is no mention of dishonesty in that part of the act - all we have to do is basically prove three things (for 112(1a) offences)....
1) There was a change
2) The change was not reported
3) Knows the change affects entitlement
The third one is where investigators have asked questions around "do you know what would have happenned to your benefit if you had told us of the extra £16000 you had" - if any of these above points are not proven then an adpen should not be oferred.
Two further points to think about though, some LA's will only prosecute where there is intent proven, despite the above, and some LA's will attempt to get an adpen signed when they have no intention of prosecuting (v naughty) but it does happen - thing is, does your client take the risk of refusing the adpen, and then find themselves in court !

Hope this helps, although I am expecting a few, errm, comments on the intent bit to come up again (wish I could find the previous thread, it was massive!!!).

Ian

Wahey, found it.

The bit about intent etc is about half way down.

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_mesg&forum=108&topic_id=2489&mesg_id=2489&listing_type=search

Replying to my own posts now, jeees, no hope !

Right, am changing my mind slightly. JJ makes a good point.
Who was interviewed. If it was the women and she did not know about the account then they should also have IUC'd the husband to confirm that he hid the account from her - the husband would then be the one prosecuted, or offered an adpen if applicable, under knowingly allowing the wife to claim benefit when he knows he is not entilted.

If the husband was IUC'd and he said she knew about the account, then she should be IUC'd, again, to confirm this - she would then be the one liable for prosecution/adpen.

If both are interviewed and both blame each other, LA may just take the pick of who they believe most !

Hope this helps, sorry about the intent rant !!!!

presumably, they don't have to decide there and then whether to accept the admin penalty, and can get further advice?

bottom line for the interview, i think, is that in deciding to issue an ad. pen the LA should have identified the particular offence for which prosecution would be sought if the ad.pen is refused (tongue firmly in cheek) and that is the information your client needs to come out with...also whether it is a case of misreprepesentation on the original claim, (which i rather assumed) or a change of circs.

you will need to look at the wording of the various sub-sections carefully...also you need to know the ins and outs of who knew what and lots more...
it's probably a lot less straightforward to demonstrate that the non-claimant committed an offence than the claimant, and one possibility may be that it hasn't been fully looked into and the ad.pen decision is premature...it may also be the case that the delay has been caused by checking into what your client told the investigator, maybe by looking into the spending/savings pattern shown on bank details...

on the other paw, coughing up the ad.pen may be the least of your client's husband's worries now that his wife knows he's socked away 12 grand without telling her... : )

also replying to my own posts...it must be catching, like pete's flu...
sorry to make flippant remarks, which could be very inappropriate - it really is not that straightforward if the prosecution would be against the husband, and there could be many circumstantial factors rendering prosecution and ad pen inappropriate, but there just isn't enough information available in the original post.

Yes, they dont have to sign anything on the day - even if they do, there is still a 28 day 'coolin off' period where the customer can cancel their agreement.
The adpen interview itself should take about 15/20 mins and should include the reasons why the LA think they have enough evidence to prosecute your client. This is the bit I think where you need to clarify the points JJ is bringing up.

Ok, I spoke to the client again on the telephone.

The letter requesting penatly payment is just addressed to her.

It states that in Apr 07 they investigated and found an amount recoverable. They acknowlege that it was paid and Ct has been reguarly paid since then. They go on to say that they have completed their investigations and their legislation allows them to add a penalty (doesnt state what leg).

Cl (Ms) was interviewed first and husbands (Mr) savings were disclosed by them to her. She stated she knew nothing about it. They then interviewed them both seperately and then Ms again on her own.
I asked (diplomatically) if Mr could have said she knew, and she is convinced he wouldn't have said that, as he knew she didn't know etc)

Shortly after the interview they were sent a list of all the savings etc that the CT had found. These were incorrect at first. They challenged the amounts and the actual overpayment was reduced slightly.
Ms stated that all the savings that were listed were complete and there were no other monies to be found. So it looks like they had no further savings to find.

I feel unless Mr blamed it on Ms (In which case he really is in trouble with her) then it was misrepresentation, and she signed the form beleiving the info and figures given were correct.

I will not be able to see any correspondance as they are miles away, cannot get in, don't have a PC etc. I feel they may well be wise to see a solicitor, but time is very short.

Can Ms ask to see what further evidence they have got that makes them feel they can procecute? As she feels there cannot be anythign further.
Do they have a right to see all the facts that led the CT to make the decision, and take it way to check, and get advice, without risking prosecution.

The couple are hardly benefit fraudsters of the year. Both on state pension, never ever claimed a benefit before and heartily wishing they hadn't bothered now. Mr apparently got quite annoyed when the CT told him he was a benefit scrounger.

Sorry for all the typos, it's late, and I haven't had a chance to deal with this today due to other work commitments.

Mrs can ask for anything she wants, but whether the LA give it to her is up to them. From what you say the LA definately believe the women is the 'guilty' one. They have at least done the right thing and inteviewed them seperately, then gone back to the 'guilty' one to put further questions. It sounds to me very much as if MR has said something about Mrs to make them reinterview Mrs for what, the third time......... most unusual.

I think here we would gladly give them chapter and verse on why we think we have enough evidence to prosecute. The adpen agreement (adpen9c) that she signs has no reasoning on, but whoever conducts the adpen interview should have an adpen.20 in front of them - this is an aide memoire we use and has various headings including - tell the claimant the LA believes they have committed the offence; tell the claimant what offence has been committed; show the evidence to the claiamant; tell the claimant the LA has sufficient evidence to prosecute etc. There should be no doubt at the end of the interview under what offences the LA belive an offence has been committed.

I dont think there is any time limit on getting the adpen signed and I think your client would have no problem explaining they would like some time to think about it.

I know you say they are hardly benefit fraudsters and WR workers tend to have a different perspective to us investigators (you think everyone is innocent, we think everyone is guilty ) but one of them did conceal the fact they had a considerable amount of money tucked away - personally, and I must stress personally, I would pay the £600 adpen and thank my lucky starts I am not being prosecuted for it.

Incidentally, what is the total overpayment, if its above £2000 and they are still offering an adpen there may be other factors involved.....

nb I also find it hard to believe somebody from a LA would call somebody a benefit scrounger, but I'm sure you all have examples of something like that happenning - if it did, I would complain about that, more than the actual op/prosecution, because if it did happen thats a shocking thing to say to someone.......

Hi, thanks for that. I'll let her know tomorrow about what to expect at the interview and what her options are.
The o/p was just over £2000 I think, about 2350.

I think the concealment came from Mr not wanting to admit that he has hidden this considerable amount of money from his wife, when she was asking him about his savings for the claim. Apparently she was so hacked off she made him pay for new windows for the entire house.

I suppose my perspective comes from needing to believe in the first instance that what people tell us is the truth, and working from there. If they then tell us something dodgy or are trying to find a roundabout way of getting info on dodginess, then all we can do is give them the possible options on their actions and state clearly that we will not advise them further on that matter, and that if they keep trying then tell them that we cannot advice them further fullstop.

I suppose Ms won't know what was said in Mr's interview. Ms also told me that she said their LA stated that they will always apply a penatly in these cases.

It was good to hear the process from the horse's mouth so to speak, so thanks again.

hmmmm, hate to make things awkward for a fellow LA but here goes.....

If what Mrs has said to you is true, she has not committed any offence, Mr has. Its very hard without knowing the full facts obviously, but if she genuinely knew nothing at all about the money, when she completed the claim form and asked him have you any savings and he said "no", and he signed the 'partner' bit on the claim forms, then in my opinion it is Mr that must be adpenned (for 'knowingly allow'). This is fairly common sense though, and I think there must be something more to it than that for the LA to decide to adpen Mrs - hopefully she will know more after the adpen interview.
Just one thing about the interview - its easy to become blase on the adpen interviews, and just skip loads of stuff (seen it happen with the DWP many a time) - make sure that the points I mentioned in the previous post are adhered to and it is clear in her mind why the LA think SHE has committed an offence.
I also dont understand the satement "LA stated that they will always apply a penalty in these cases", uhmmm, what sort of cases, where pensioners are involved, where capital is involved ??? You need to have a look at your LA's policy which should ne on the net, most councils have a £2000 overpayment limit, above that and its a prosecution straight away, under that and its an adpen/caution, however each LA is different, especially the London Boroughs.

Hope this helps

Thanks for that. She understands everything she needs to know and to ask.

Will see how it goes come tomorrow.