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tribunal or mags - here we go again!

Kevin D
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Tony:  Firstly, I think I know enough about the case to safely say there isn’t any more to it in substance.  It’s pretty simple:  conviction obtained for fraud related offence; POCA enacted; THEN Tribunal finds for the clmt; subsequent Court refuses to follow Tribunal outcome on the grounds that, to all intents and purposes, the conviction overrides the Tribunal outcome.  In effect, the reasoning amounts to “as there is a conviction, there has been a crime and as the crime related to monies paid, those monies were the proceeds”.

As I’ve posted elsewhere, this judgement all but renders a Tribunal pointless in cases where convictions have been obtained.  In my (albeit non-lawyer) view, there is surely a HRA argument along these lines: the law expressly provides for the right of appeal to a Tribunal.  Article 6 provides for such a hearing to be fair.  It must be open to argument that to unilaterally disregard the outcome of a Tribunal is an unanswerable breach of Article 6 on the grounds the clmt has, in reality, been deprived of the right of the effect of the Tribunal s/he was legally entitled to seek redress from.  But, until/unless this is challenged, I have no doubt that there will be cases where the DWP/LAs now deliberately seek to delay Tribunals in cases where criminal proceedings are also under way.


Dan:  I happen to know the names of the parties but the transcript isn’t on any of the likely public sites (yet) so I’m reluctant to post the details in case sovietleader wants to keep the claimant’s name confidential.

     
tony pickering
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welfare rights officer, derbyshire county council, high peak

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I’m a bit puzzled/frustrated about the mystery surrounding this case. 

As I posted above I have an appeal tribunal listed for Monday, with the POCA hearing adjourned for its outcome and I would very much like to be able to advise my client about the likely impact of the result.  It is a longstanding case and has involved a more than considerable amount of work on my part and distress on my client’s.  It looks like it might all be for nothing. 

Is anybody in a position to know how widely known this case - i.e. how likely is it that the court hearing my client’s POCA case will be aware of it?

I am assuming that sovietleader is trying to limit the damage for the time being as well as possibly keeping the person’s name from being made public.  However, as it is a Court of Appeal judgement then surely the person’s name will be public to the extent that the judgement is, and it looks as if this is just a question of time.

I would still love to read the judgement [with names redacted?]

Tony

     
neilbateman
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As far as I am aware there is only a digested law report of the case available (R v Wearing - the name is in the public domain), so it is not possible to see the full reasoning.  So it is best not to speculate until someone obtains the full law report/transcript.  It does appear however, that the deciding point is that the Tribunal was heard after the criminal matter.  If they can’t prove non-entitlement/overpayment/recoverability to the civil standard before a Tribunal, how can they do so to the higher criminal standard?

I was involved in one case where the Tribunal was heard after the sentencing hearing and was worse than the basis of plea used for sentencing.  The DWP took the opposite stance and relied on the Tribunal decision in the subsequent POCA proceedings.- heads they win, tails the client still loses.

In the meantime, it is still essential to try and get Tribunals heard and concluded before the case goes through the criminal courts.  The criminal courts are simply not designed to deal with social security law and the lawyers involved will readily admit they don’t understand it which is one reason why so many clients plead guilty (another being their concistent failure to obatin proper advice and help before they are interviewed).  The courts don’t have jurisdiction either, which is why we have Tribunals.

Traditionally, we tend to take a relaxed attitude to getting Tribunals heard quickly in OP matters.  However,  a different and more proactive stance is essential where the criminal courts are involved - they are not forgiving of delay and will often just plough on regardless, though DWP policy is to agree to long adjournments of criminal matters while an appeal is taking its course (though in typical DWP fashion, they seem to forget their own policy at times).

Of course, the delays in the Tribunals system, some Tribunal judges’ refusal to expedite hearings and the very variable availability of skilled representation makes it practically difficult for clients being prosecuted.  In any event clients invariably fail to appeal the entitlement/OP decisions and their criminal lawyers don’t advise or help them to.  As an example of the lack of knowledge, in a recent case I was involved in the prosecution barrister apparently told the defence that he did not know that one could appeal to a Tribunal…

     
sovietleader
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tony pickering - 06 January 2012 09:50 AM

I’m a bit puzzled/frustrated about the mystery surrounding this case. 

I am assuming that sovietleader is trying to limit the damage for the time being as well as possibly keeping the person’s name from being made public.  However, as it is a Court of Appeal judgement then surely the person’s name will be public to the extent that the judgement is, and it looks as if this is just a question of time.

I would still love to read the judgement [with names redacted?]

Tony

Tony

Sorry I didn’t get back to you - I think I did see your post but forgot to respond, then have been on leave and only saw this thread again today. As someone has said earlier, I am not aware there is a full transcript of the decision. The client certainly hasn’t seen one and I presume from more recent posts that no full version is avaialble yet. I am not trying to exercise any damage limitation - I simply don’t have access to the full judgement. The client’s name is Wearing

What I would say is (and I can’t remember exactly what I have said in earlier threads, so apologies for repeating myself) the POCA was adjourned as far as my client and her barrister were aware to allow the tribunal hearing to take place first. When the POCA case resumed, after the first tier tribunal, the judge denied having adjourned for that reason. I suspect that if he did adjourn to enable the tribunal to take place, he thought it would simply disallow the appeal, simply because my client had lost the court case.

It will be of interest to many, myself included, to know what happens in your case. Prior to the First Tier hearing, the position is still that the effect of an earlier conviction is to move the burden of proof to your client. What will be interesting is what happens at the POCA if your client is successful at tribunal, and whether DWP advance any argument based on the Court of Appeal judgement in Wearing, or so simply as they did in the Wearing case - argue that the First Tier Tribunal judge is an “inferior judge” and therefore the decision has no effect on the POCA proceedings (that is how their case was related to me by the client)

Regards (and apologies for not getting back in touch earlier)

Brian

      [ Edited: 6 Jan 2012 at 02:48 pm by sovietleader ]
tony pickering
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Thank you Neil and Brian for your responses.  I’m clearer now on where we are on this, although will know better when we see the transcript.

I agree with all that you say Neil - one problem is that we come into these cases at various stages in the process[es] and often have a limited ability to influence the order of events, particularly when lawyers are not listening.  It took quite an effort on my part in my current case to influence the court proceedings.  It was only when I gave my client a long and detailed explanation of the situation that his barrister took notice and the Judge adjourned the POCA hearing.  I don’t know exactly what happened as I wasn’t there, although my client is clear that my letter led to the adjournment.  As you say, the clear priority is to try and get the tribunal hearing before the prosecution hearing.

Brian, I will post what happens.

Tony

     
ClaireHodgson
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it occurs to me, Counsel for the claimant will have a copy of the judgement, so if anyone knows who that is, they could ask Counsel to email over a copy.

Have to say, I am exceedingly surprised that this has not yet been reported.  I’ve done as others - looked all over!

     
ros
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here’s the report of case on lexisweb.co.uk -

http://lexisweb.co.uk/cases/2011/november/r-v-wearing

looks as though tribunal may have decided claimant wasn’t cohabiting and then Court of Appeal decided Crown Court not bound by that decision, although can’t really tell without transcript.

     
1964
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Deputy Manager, Reading Community Welfare Rights Unit

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And presumably, if the FTT judgement is ‘inferior’ there is nothing to prevent DWP from continuing with/instigating criminal proceedings even if the FTT is heard first?

     
sovietleader
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Advisor, Wirral Welfare Rights Unit, Birkenhead

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1964 - 09 January 2012 08:50 AM

And presumably, if the FTT judgement is ‘inferior’ there is nothing to prevent DWP from continuing with/instigating criminal proceedings even if the FTT is heard first?

The DWP position in our case was that success of the appeal is only one consideration when deciding whether to proceed with a prosecution. Of course, I cannot think of any case where a prosecution has gone ahead and not taken full account of the tribunal decision. Proceedings are either dropped or charges amended (say where the period of overpayment is reduced). The reality is that the tribunal decision will affect whether prosecutions are pursued afterwards in most, if not all, cases.

Brian

     
Lid26
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Disability Advice Service (East Suffolk)

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Hi,

I have looked at the brief report of the Wearing case- Whilst I appreciate that it may seem perverse - the Crown Court jury presumably felt that the evidence had been proven beyond reasonable doubt. If the Crown Court Judge had doubts whether the Prosecution had made out their case, then he should have removed the case from the Jury or directed them to make not guilty verdict- there seems to have been no errors of law identified by Court of Appeal; The Court of Appeal were invited to consider whether the verdict was ‘safe’- and in so doing would need to consider whether the Crown Court Judge had made any errors of law eg in summing up or by allowing inadmissible evidence. It seems that the Court of Appeal found nothing to render the conviction unsafe. The Tribunal then decides that there was no dishonesty. FTT is not binding, and perhaps a different Tribunal would have made a different ruling, perhaps a different Jury would have returned a different verdict- just because a different verdict could be made is not grounds to sustain a Criminal Appeal.

No doubt the transcript will clarify this.
This clearly shows the importance of trying to sort the Tribunal hearing first!


Lid26

     
Kevin D
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Lid26 - 18 January 2012 11:49 PM

The Tribunal then decides that there was no dishonesty. FTT is not binding, and perhaps a different Tribunal would have made a different ruling, perhaps a different Jury would have returned a different verdict- just because a different verdict could be made is not grounds to sustain a Criminal Appeal.[Lid26

Lid, with respect, this completely overlooks the chain of effective decision making.

Firstly, a FtT isn’t primarily interested in “dishonesty” in the legal sense.  It’s about facts and how those relate to entitlement, irrespective of honesty. 

Secondly,  A FtTD IS most certainly binding on the DWP in the context of being a decision that MUST be implemented.  FtTs are only non-binding in the context of legal precedent.

Thirdly, as has already been pointed out (and starkly stated by at least two Cmmrs / UTJ), the standard of questioning in the criminal court is often dreadful due the huge lack of understanding of Social Security law by the criminal courts - as well as the lawyers acting for the parties.  I have personally spoken with lawyers practicing criminal law who are unfamiliar with Social Security law in cases of alleged benefit fraud.  The lack of knowledge and the inability of many to get their heads around SS law is absolutely frightening.  I have also assisted in more than 50 cases of alleged benefit fraud and some of the examples of supposedly trained lawyers (both prosecution and defense) faffing about, miles out of their comfort zone, has been an eye wateringly desperate experience.  I have also acted as an expert witness in such a case and to say the defendant’s solicitor “didn’t get it” didn’t come close to describing his/her inability to grasp the relevant law.  Fortunately, the barrister had a more open mind and took on board my observations - the defendant was (rightly) found not guilty.

Fourthly, in Wearing, a Tribunal has expressly found that the clmt was NOT overpaid.  On that basis, there could not possibly be a failure to notify a change in circumstances affecting entitlement.  In short, the criminal court has effectively replaced the FtT and I am not aware of any legal basis on which the criminal court has such jurisdiction (the CA judgement in Wearing aside).  On the flip side, suppose Wearing had been found not guilty.  Would that verdict have removed the overpayment?  Absolutely not because the criminal court has no jurisdiction to determine entitlement.  On that basis, I can’t see how it can work the other way around.

Fifthly, the clmt has a legal right to a Tribunal hearing.  In my view, that must mean an EFFECTIVE Tribunal hearing.  In Wearing, the legal system has said “We don’t care about the Tribunal hearing, it’s just a ‘play court’”.  The failure of the FtT to have any actual effect in Wearing is surely a breach of Article 6 which expressly provides for the right to an (effective) independent Tribunal.  In Wearing, that right has indisputably been taken away.

In my view, the CA got it wrong - shockingly wrong - and it is hugely disappointing if there is to be no appeal to the Supreme Court.  As indicated elsewhere, the Wearing judgement provides the DWP and LAs with huge incentives to obstruct the “civil” appeal process for their own ends, knowing that the criminal courts are usually pretty poor when it comes to social security law and that convictions can be obtained in cases that would never stand the scrutiny of a FtT on the substantive facts as they relate to entitlement.

1964’s point about whether the Courts can go behind a FtTD that has already been found in the claimant’s favour is an interesting one.  I wouldn’t put it past the DWP (or some LAs) to try arguing at Mags / Crown Court that such an FtTD is irrelevant in light of Wearing.

      [ Edited: 19 Jan 2012 at 10:27 am by Kevin D ]
Lid26
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Kevin D - 19 January 2012 09:24 AM
Lid26 - 18 January 2012 11:49 PM

The Tribunal then decides that there was no dishonesty. FTT is not binding, and perhaps a different Tribunal would have made a different ruling, perhaps a different Jury would have returned a different verdict- just because a different verdict could be made is not grounds to sustain a Criminal Appeal.[Lid26

Lid, with respect, this completely overlooks the chain of effective decision making.

Firstly, a FtT isn’t primarily interested in “dishonesty” in the legal sense.  It’s about facts and how those relate to entitlement, irrespective of honesty. 

KevinD
Sorry.. when I said ‘dishonesty’ in FTT I was using this as shorthand for valid/non fraudulent claim.

I don’t agree with the Court of Appeal ruling, but given that it appears no obvious error of law was found at the Crown Court (and maybe if there was and Ct of Appeal hasn’t addressed this there may be further redress.) however odd the verdict and consequent conviction it has to stand.

Nevertheless, the intervening FTT hearing is then a sham, and Art 6 must apply. (And in the Wearing case, given the positive outcome, I understand you wouldn’t want to appeal that!)
Perhaps the way forward is to argue Art 6 at the criminal court?

I have several clients all facing similar problems - one of whom now has a trial fixed at Magistrates Court in March- the Wearing ruling may well be wrong, but we need to abide by it. How, on a practical level can I ensure(and likewise other advisers in the same position) that the Tribunal hearing is dealt with first. Communication with the Trib Serv is a painfully slow and difficult task at the best of times- previous experience shows this!

Is it possible to lobby for a Practice Direction that deals with these circumstances?

What should we do to preserve the position for our clients?

Lid26

     
sovietleader
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I have now been given a transcript of the full decision by Mrs Wearing. In truth, it says very little that one wouldn’t expect. 

What I find hard to accept is the Crown’s insistence that “the prosecution would have commenced in any event” (para 32). The Court goes on to say -

“The Crown doubtless would have considered any Tribunal decision but that would never have bound it, because it would have been entitled to reflect whether it might be argued to be perverse or unreasonable. It followed that the delay in the hearing of the appeal Tribunal was of no relevance in this case…”

I would have liked the DWP to provide evidence of cases when a prosecution has been progressed following an adverse (to the DWP) appeal decision. From both working in the DWP and Welfare Rights I cannot think of one case where that has happened. All prosecutions have been adjusted or dropped in line with the tribunal outcome.  At present we are waiting for a tribunal decision on a £113,000 income support overpayment. If found in the client’s favour, it will be interesting to see what the DWP does (the case is still at the magistrates Court on the criminal side). At the very least, the charges may have to be amended because, as was the case in Wearing, the effect of the tribunal decision would be that there is no loss of entitlement or overpayment.

I don’t think there is any application to the Supreme Court but the client seems to going down the route of the Criminal Cases Review Commission.

I can fax copies if needed but I won’t be back in till Monday 20th.

     
neilbateman
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You’re right.  So I find it impossible to understand the DWP’s arguments that the Tribunal was irrelevant.

This week I had a case where client had been charged with various offences.  Two relating to an alleged false misrepresentation on a claim form.  I got the OP revised down to nil (DWP and LA had never properly asked client for details self employed expenses for the self employed work not declared, so it was easy to deal with).  DWP then discontinued the two charges for which there was no overpayment.

I had a case last summer which went in the other direction.  Client lost at Tribunal and DWP said they were bound by this in the subsequent confiscation proceedings!

It feels like “tails DWP wins, heads client loses”.

I remain deeply concerned that the criminal and tribunal processes and timings being so badly out of sync (endemic DWP delays don’t help), the variable quality of Tribunal representation around the country and the vast majority of criminal law practitioners not having a clue about benefts when defending or prosecuting beneft fraud cases (can you imagine advising about a motoring offence if you couldn’t drive?).  Clients failing to appeal or to be advised to appeal is the biggest and most serious continual failure (and actually leaves solicitor open to being sued or reported to the SRA for negligent practise).  Not helped by clients who wrongly believe that if they keep their heads down and pay back the money it will all go away.

Most disturbing of all I have had numerous cases where after the criminal proceedings have ended, DWP agree their figures were wrong and/or the OP was not recoverable.

For advisers, a much more time-consuming and proactive approach is needed in fraud cases compared to other overpayments and there must be close and ongoing liaison with criminal law practitioners (they may not know social security law, but most are very dedicated and do know criminal law).  WR advisers sitting-in on interviews under caution without a solicitor is a particular concern - I’ve seen too many where the well-meaning WR adviser didn’t intervene or provide any proper legal advice (and couldn’t because they were not qualified or accredited to do so) and actually made it worse for the client.

     
Tony Bowman
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Surely this mean that the right to independent tribunal hearing is no longer an effective remedy? That would be a breach of article 6 ECHR.

For all the reasons in this thread, the criminal court could not, by any stretch of the imagination be considered an effective remedy. Unless that is, they want to take over the entire function of the Tribunals Courts and Enforcement Act and brush up on social security and tax credit law. I’m no lawyer, but I can’t imagine that the law provides for the criminal court to have this function and/or ability. Otherwise, the government might just as well throw away tribunals altogether and turn it all over to magistrates.

     

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