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Recommendation to Prosecute.
I’m currently assisting a client re a DLA overpayment due to change in circs (allegedly). Fraud dep conducted
[ Edited: 29 Jun 2015 at 10:37 am by Faceache ]Inclined to think that, with the usual level of competence, it’s just been posted to the wrong party.
Assumption is that someone has watched the video and made the decision on the back of that thus turning any future IUC into a feast of accusations and intimidation rather than an actual interview to elicit further information; put the evidence thusfar to the claimant and then make an informed decision to prosecute.
Can’t say I would go along with the advice to not attend. Really doesn’t help.
I have seen several ‘notice of intent to proseute’ but no ‘recommendations’. All of those I have seen were sent to unrepresented clients who either did not attend IUC or did so without representation or advice.
I would be gathering any/all evidence that shows your client continues to meet the entitlement conditions for PIP and get this off to the FIS.
I agree with Mike that attending an IUC is often the best advice but the client should have advice before doing so and someone with them (solicitor/appropriate adult).
We’ve had a client who received a ‘Recommendation to prosecute’ letter a couple of months ago. Living together case, client unrepresented in the IUC.
Do they also send ‘Recommendation NOT to prosecute’ letters, or just leave the claimant wondering?
Left wondering I believe!
All evidence is i
[ Edited: 3 Feb 2017 at 12:03 pm by Faceache ]If they do not attend that is up to them; I would try to ensure as much supporting evidence as possible ( whether medical or otherwise is obtained )
Lower Tribunals which deal with o’paymments are dealt with more formally, an interview under caution in the cases I’ve reprsented in the past only seems to be carried out when in their opinion it is a racing certainty that the appellant will not be able to prove the case in his favour.
IE when their memory is poor (affected by years of prescription pain relief for example). If supposed film does not show the appellant clearly it should be disregarded
If they do not attend that is up to them; I would try to ensure as much supporting evidence as possible ( whether medical or otherwise is obtained )
Lower Tribunals which deal with o’paymments are dealt with more formally, an interview under caution in the cases I’ve reprsented in the past only seems to be carried out when in their opinion it is a racing certainty that the appellant will not be able to prove the case in his favour.
IE when their memory is poor (affected by years of prescription pain relief for example). If supposed film does not show the appellant clearly it should be disregarded
The question of whether to attend an IUC, to attend and not answer questions and/or to submit a written statement requires a mix of good knowledge of both social security law and criminal law as well as judgement in each individual case. It is very unwise for this to be left “up to them”.
As has been repeatedly stated on Rightsnet, WR advisers do not have the rights of solicitors or solicitor instructed, accredited reps as per the PACE Codes and neither will they have usually sufficient knowledge of this area of the law. I have seen immense damage caused by WR advisers dabbling in this area.
Equally, I have seen much poor practise by solicitors’ staff who haven’t a clue about benefits law. Best results are obtained by solicitor and WR adviser working in partnership which is why it is so important to build links with criminal law specialists whom you can have a rapport with.
As regards IUCs only happening when it’s a “racing certainty”, with respect, this is dangerously wrong. Not only does it reinforce the misleading perception that suspicion equals guilt, but as matter of law and procedure, IUCs are carried out by fraud investigators in order to obtain sufficient evidence to prosecute, in particular to obtain admissions to the effect that that people knew the rules and deliberately broke them, knowing it was wrong to do so. This means that the mens rea (intention/subjective element) of criminal offences can be proved. Without such evidence, prosecutions will often simply not start.
Moreover, it is not for the interviewee to prove his entitlement or innocence. The burden of proof lies fairly and squarely with the DWP, both for social security law and especially for criminal law, though clearly is people can make a statement supporting their entitlement this may be helpful.
An IUC can be carried out when there are reasonable grounds to suspect that the interviewee has committed an offence. This is a much lower threshold than a “racing certainty”.
The DWP’s Guidance to Fraud Investigators has been on the DWP website for some years now: http://www.gov.uk/government/uploads/system/uploads/attachment_data/file/286748/fraud-guide-mar-14.pdf
It is not the easiest document to navigate, but the chapters on Evidence gathering and Interviews under caution are essential reading. Also the chapter about arrests is interesting and shows that DWP threats to have people arrested for not attending IUCs can appear to be oppressive. I have similar concerns about the letters asking people to attend an IUC which state that only one IUC will be offered - absolutely no legal grounds for this at all.
finally, it is procedure that people should be written to advising them of the outcome of an investigation. Again, this is found somewhere in the Guidance. This does not often seem to happen and it would be interesting to know why.
[ Edited: 2 Jan 2015 at 11:18 am by neilbateman ]
Concur with Neil on the points made.
In terms of “racing certainty”, from my point of view, I have seen that in the past the interviewing officers held more evidence/information by the time you got to the IUC - whereas now they have very little (maybe funding cuts - who knows!).
With that being said, the failure to attend an interview can in fact hinder a claimants case/entitlement immensely, especially in simple matters which can be easily resolved.
Prime examples are where the DWP seek information on capital / disability / living arrangements (cohabitation).
Failure to attend usually results in DM making a negative determination with benefit stopping. Which can be detrimental to claimants.
Once a negative determination is made, it can take several months and in some cases over a year to rectify matters. Even the most simple matters.
In many cases, where benefit is suspended/terminated, a claimant may be without benefit/s for many months. This is often equivalent to thousands of pounds.
Obviously every case is based on its own strengths and merits but applying blanket strategies, of whether or not to attend, can lead to dangerous consequences.
Have returned from Christmas break to messages from 3 clients that they have had letters stating the recommendation to prosecute. First time i’ve seen this in our area and i’ve dealt with quite a few fraud cases…..
Interesting points Neil.
[ Edited: 3 Feb 2017 at 12:04 pm by Faceache ]
just had a case of under £5000 overpaid through alleged fraud and this ‘Recommendation to Prosecute’ letter has been received, addressed to the client. Can anybody advise if this is standard, in terms of practice and wording? Any comments on content or style?
On [date] you were interviewed under caution in connection with a suspected benefit offence.
My senior officer has recommended to the Department’s Prosecution Division that prosecution should be considered against you in this matter.
The Prosecution Division will now consider all the evidence obtained and decide whether to prosecute you for this matter. If the decision is that a prosecution is appropriate a Summons will be issued by the Court to be served on you. A summons is normally sent by post but can also be served personally. The Summons gives details of where and when the court hearing will take place and the offences you are charged with.
If Prosecution Division decides that prosecution is not appropriate you will be notified in writing as soon as possible.
The issue of the Summons by the Court may take some time. I am sorry that I am unable to give you any more information about when this might be.
I’m hearing more and more of the recommendation letters. Not sure what the intent is other than to harass and intimidate.