discussion forum

you’ll all remember this thread in the archived forum:

http://www.rightsnet.org.uk/forum-archive/index8929.html

they’re trying it again, in a different case - this time without the intervention of an abortive tribunal hearing!

gah!

I’m sure I’m this is not new to you, but I’ve copied an exttract below from a recent letter in the event it might help you.  It didn’t help my client because the solicitors ignored it on the grounds that I’m not a qualified solicitor and bargained with the prosecution instead, without my client’s knowledge, based on 50% of the overpayment. He’s been convicted on that basis and the true figure is actually around 30%.

Good luck with yours…

”...In the meantime, you should ask your solicitors to attempt to stay the criminal proceedings pending the outcome of the appeal hearing. This is important because the final amount of the overpayment, which will influence a sentencing decision of the court in the event that you are found guilty, cannot be determined by the criminal court.

In commissioners decision CH/3744/2006 Commissioner (as he was then) Mesher observed (at para 14): “In my no doubt unrepresentative experience as a Commissioner, the standard of the 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”.”

Thanks Tony - a fax went to TAS citing, inter alia, Mote to them (and I’ve now saved the entire letter in my benefits folder so i don;t have to hunt for it if needed in the future!)

but my client hasn’t been charged .. hopefully, as with the last, he won’t be!

What other authorities have you cited in your standard letter, Claire?

R(H) 01/07, paragraph 34
CH/1820/2006 (p 18)
CH/2047/2007 (p18)
CH/1220/2005 (paras 22 & 31) (Mote v Secretary of State, Mote v R)

and used that Mesher quote as well.

and asked for a statement of reasons if they aren’t minded to change directions, and also asked in advance for leave to appeal to UT.

I ask myself: “How it is that someone can be found guilty under the Social Security Administration Act 1992 section 111 – 112 by not taking into consideration the rest of the Act (i.e. section 71) and regulations?”

Prosecutions are mostly under Sections 111 – 112 so:

•  Section 111A ) 1 If a person dishonestly c)  fails to notify a change of circumstances which ‘regulations under this Act’ require him to notify

•  Section 112(1A) if a person without reasonable excuse – a) fails to notify a change of circumstances which ‘regulations under this Act’ require him to notify

If the court does not look at Section 71 or ‘regulations under this Act’, then how does it find someone guilty?

If the person who is not the person, who fraudulently or otherwise misrepresented or failed to disclose a material fact, which resulted in overpayment of benefit, under the Social Security Administration Act 1992 section 71, why am I puzzled to find that he did misrepresent under the Social Security Administration Act 1992 section 112 (same Act)?

I think the debate will go on.

Kev@derbys - 06 August 2010 02:00 PM

I ask myself: “How it is that someone can be found guilty under the Social Security Administration Act 1992 section 111 – 112 by not taking into consideration the rest of the Act (i.e. section 71) and regulations?”

Prosecutions are mostly under Sections 111 – 112 so:

•  Section 111A ) 1 If a person dishonestly c)  fails to notify a change of circumstances which ‘regulations under this Act’ require him to notify

•  Section 112(1A) if a person without reasonable excuse – a) fails to notify a change of circumstances which ‘regulations under this Act’ require him to notify

If the court does not look at Section 71 or ‘regulations under this Act’, then how does it find someone guilty?

If the person who is not the person, who fraudulently or otherwise misrepresented or failed to disclose a material fact, which resulted in overpayment of benefit, under the Social Security Administration Act 1992 section 71, why am I puzzled to find that he did misrepresent under the Social Security Administration Act 1992 section 112 (same Act)?

I think the debate will go on.

It doesn’t actually say “regulations under this act”.

Section 111A SSAA(1) is a stand alone provision penalising those who dishonestly does any of the things listed with a view to obtaining benefit. It is not a requirement under this section that there is an overpayment of benefit. An attempt to get benefit is all that is required, so there may not even by an overpayment to be determined under s.71.

Under sub para 2 there are four requirements for an offence to be made out:
(a) there has been a change affecting benefit “under any provision of the relevant social security legislation”;
(b) the change is not exempted by regulations from the duty to disclose
(c) ...
(d)...

My understanding is the the reference to ‘regulations’ in (2)(b) is linked to the ‘relevant provisions’ mentioned in the preceeding paragraph and not confined solely to any regulations made under the SSAA.

I think it’s reasonably to suggest that most of us would say it’s fair and just to allow the civil proceedings to conclude first because that is the only method by which the amount of the overpayment can be conclusively determined. Unfortunately, there is no requriement on benefit authorities to have the overpayment figure impartially confirmed and they are at liberty to do whatever they want based on the figures they come up with. Equally, and although not part of the civil proceedings, calculating ‘underlying’ entitlement is also important because 1) it can demonstrate that there was no action or inaction ‘with a view to gaining an advantage’ and 2) the true loss figure is important for sentencing.

Sometimes it can be shown that there is no attempt to gain an advantage and the true loss figure is £0, but there is still a recoverable overpayment and a prosecution. For example, take someone who gets max HB of £100 a week and then moves to another address with the same rent/LHA and who does not report that change, which is discovered in a year. There is an overpayment of £5200. Client then makes new claim and backdating properly refused as no good cause.

In this situation the client has a recoverable overpayment of £5200 and the authority might attempt a prosecution under s.112. The client has a defence in that he was not seeking an advantage becuase he would have been entitled to exactly the same amount if he’d done everything properly and the true loss to the public purse is exactly £0. Unfortunately, most people in this situation simply don’t know it so they end up being convicted based on the ‘facts’ as presented by the prosecuting authority.

response to my submissions is a letter to client (not to me, yet!) asking that i send copies of cases cited ...

Claire Hodgson - 05 August 2010 12:03 PM

CH/1820/2006 (p 18)
CH/2047/2007 (p18)

anyone got copies of these two please?

Claire Hodgson - 02 September 2010 12:44 PM

Claire Hodgson - 05 August 2010 12:03 PM

CH/1820/2006 (p 18)
CH/2047/2007 (p18)

anyone got copies of these two please?

ignore me - i knew i had them somewhere!  have found them

all those cases - ignored /distinguished by tirbunal judge, i’m off to UT on this one

In the context of how this discussion started that would mean the tribunal has adjourned pending the criminal proceedings…?

Is that appealable to the UT?

Tony Bowman - 22 September 2010 04:59 PM

In the context of how this discussion started that would mean the tribunal has adjourned pending the criminal proceedings…?

Yup - and considering in their tribunal submissions the DWP appear to concede client is in significant discomfort…see this thread:
http://www.rightsnet.org.uk/forums/viewthread/141/

Tony Bowman - 22 September 2010 04:59 PM

Is that appealable to the UT?

looked it up last year for my previous case - yes, as it’s not a decision that’s NOT appealable…

You must be furious Claire.

I really don’t understand how solicitor of at least 10 years standing can possibly believe that justice will be served by refusing to adjudicate on the civil matter of entitlement before a criminal court is asked to adjudicate on whether that entitlement was lawfully obtained, where the latter court has neither the jurisdiction or knowledge to deal with the civil matter.

And in my client’s case, he was doubly disadvantaged by the incompetence or unwillingess of his legal advisers. I only hope that your client fares much better in that respect.

Maybe they could argue for adjournment in the criminal court pending resolution of the entitlement issue? That will put the TTS in a quandary…

Tony, client hasn’t been charged yet!

i am bouncing off walls… need to calm down before i write to tribunal for leave to appeal (quoting chapter and verse on why i can,no doubt! and quoting form my submissions which quote that line from the DWP’s submissions…)

just wish i could ask for my client’s costs once i’ve sorted out all this grief!