Fraud Investigation, the client was charged & convicted but there was no recoverable overpayment. I would be grateful for any comments, or direction on what the claimant does next and what issues this may raise:

The client claimed DLA and was awarded HR Mobility in 1998. On renewal in 2001 he was awarded HR Mobility (indefinite).

Following an allegation (in 2005) of improved mobility, an investigation followed resulting in the Secretary of State superseding the 2001 decision (date of supersession is Feb 2006) going back to November 2005 creating an overpayment of £549.90. The client appealed; the Secretary of State also pursued criminal charges under Section 112 (1A). A number of appeals were adjourned for a magistrates hearing to go first.

May 07 - The Magistrates found the client guilty because he knowingly and without reasonable excuse failed to notify a change of circumstances which he was required to notify, namely that his mobility had improved, contrary to section 112 (1A) of the Social Security Administration Act 1992. (The client appealed against conviction).

October 08 - A Crown Court hearing upheld the Magistrates decision. (The thing that surprised me was the Crown Court does not deal with the issues).

July 09 - My First Tier appeal went ahead and the tribunal found the £549.90 recoverable even though it did not deal with the overpayment issue. (I made application for leave to appeal to the Upper Tier tribunal which was accepted).

Within the month, I challenged the overpayment on the ground that the date of supersession should be effective from the date of supersession (wiping-out the overpayment) because the claimant could not have known of the changes or reported any change of circumstances.

The Secretary of States response was that he supports the appeal, going on to say “the claimant can not have known this fact and could not therefore have reported it”. The Secretary of State’s representative requested that the Upper Tier Judge set-aside the First Tier decision and replace the decision making the effective date of Supersession (Feb 2006); I also invited the Upper Tier Judge to replace the First Tier decision.

May 10 –

The Upper Tier Judge found there was a “change of circumstances as from 08 February 2006, from which date there is no entitlement. “However there was no recoverable overpayment.”

It turns-out the client finishes up winning his appeal but has a criminal record. He lost his job. He could not have known of a change in circumstances to report (but was convicted of it under Section 112 (1a). It ends up there was no £549.90 overpayment.

Comments most welcome (have a good weekend)

"The Secretary of States response was that he supports the appeal, going on to say “the claimant can not have known this fact and could not therefore have reported it”."

I would sue them to hell and back: malicious prosecution, defamation of character and anything else I could come up with. I would also try to get leave to appeal the criminal charge.

Does this not raise the question as to whether or not the DWP should be prosecuting before the tribunal route has been exhausted?

Surely the Crown Prosecution Service should not be listing cases if there is an outstanding hearing as this is potentially a waste of public money? And possibly compensation from a miscarriage of justice?

Although, I realise a lot of tribunal hearings are adjourned awaiting the outcome of criminal prosecutions, which perhaps needs to be questioned as to whether this is the correct path they need to take!

Rachel

In an earlier discussion, Neil Bateman made the following points - which I cut and past here for convenience - although it's not any help to your client, it must be said :

In CH/1820/2006 at para 8 it was held that "...in deciding this appeal, I am not in any way concerned with the success or lack of success, of any criminal proceedings. Nor am I concerned with arguments that may have been advanced in that litigation".

The criminal courts have neither the skill nor the jurisdiction to decide issues of recoverability of an overpayment and benefit entitlement.

Aside from the question of disclosure, there's still a lot for Tribunal to consider after a conviction

Much depends on the facts of each case, but it could include whether the decision making has been done properly to enable recoverability and the amount of the overpayment.

A common issue in fraud cases is that the "paying office" were aware of the material fact but delayed acting on it while investigating. This may be valid practice from an investigative point of view, but is no defence to the issue of recoverability under s 71 SSAA when the material fact is known to the paying office. I've seen this add nine months to DLA overpayments. One usually only finds this out by obtaining the Unused Material from the criminal case. Defence solicitor should have a schedule listing any Unused Material.

It's not unheard of for a Tribunal to decide there was disclosure or that it was not reasonably required, even after conviction (which of course may have been on a guilty plea with a plea bargain to avoid the stress of a trial and obtain credit under the Sentencing Guidelines for a lesser sentence).

It really is best that an appeal is heard before the criminal matter - caselaw clearly holds that an appeal should not be delayed pending criminal hearings and DWP policy is now to agree to long adjournments of criminal cases until any appeal hearing is resolved. Wider Direction powers in new Tribunal Rules can also be used to get speedier listing/obtain submissions from a tardy or reluctant DWP.

However, many clients facing prosecution and their lawyers don't realise the significance of appealing. I had one spirited young solicitor say to me that his client could not appeal against the overpayment as he had not been convicted. Sigh...it's moments like that which make me want to give up welfare rights and take up busking for a living.

Anyway, whatever you do, don't withdraw the appeal.

a truly appalling situation, and well done derbyshire. the Sec. of State's support for the appeal is very significant, imo. also agree that maybe you have to be a specialist in welfare rights and DLA to appreciate quite how badly your client hass been treated by the DWP.

my instincts, like paul's, are to throw the book at them, but, after quickly googling 'malicious prosecution', i suspect that it may be more difficult than it sounds...the way the law works doesn't always do what it says on the tin... and finding the most effective legal strategy to remedy the situation can be the tricky part.

i suspect that the decision to prosecute is the area to attack, and also, why was the appeal deferred until after the criminal hearing? your client has been criminalized by the state, arguably in breach of his right to a fair hearing, for no better reason than the achievement of fraud prosecution targets, we know that...

decisions to prosecute should be in the public interest - i don't think negligence begins to cover this one - there has been no proper balancing of interests, and the decision to prosecute appears reckless of your client's rights, and duties and obligations on the department...i suspect that a blanket 'public interest to prosecute for fraud' justification may have been used in a tainted conciseration process, over-influenced by fraud investigation sections...has led to perverting the course of justice, but maybe that's just me...?

i don't see how the Sec of State can hold two contradictory positions on your client's case, and there is no doubt that he has suffered a huge detriment, which needs to be remedied. i don't pretend to know the best way of going about it.

a few thoughts occur to me...

expert legal advice is needed re legal options and remedies available... i'm also wondering whether it might be worthwhile contacting Liberty...?

afaik, there must always be an attempt to settle the matter before resorting to legal action, and it is possible, theoretically, that the DWP will see the full horror, put its hands up, and want to put it right. < that sentence was a triumph of hope over experience, btw> you might need to go to the top levels to raise it, and take advantage of the fact that the new administration has no investment to defend and won't have have been fully acclimatised yet...certainly, it wouldn't hurt 'em to see what is really happening, while they are in a honeymoon period...it's not pretty, and your client is one of the fortunate ones to get the breakthrough you have reported here...the risk of injustice remains whilst the subject of fraud is approached hysterically instead of rationally...

on getting the conviction quashed... i recall a case where i was able to help a client get a county court order on a debt rescinded, with the support of the LA, who had (erroneously) made the county court claim in the first place... i wouldn't have known about that if the LGO hadn't alerted me to the possibility. i'm wondering whether there's a similar process with criminal convictions - that is, if the prosecutors support the quashing of the conviction, it can smooth the passage through the court process...??

"i don't see how the Sec of State can hold two contradictory positions on your client's case, and there is no doubt that he has suffered a huge detriment, which needs to be remedied."

just to clarify - i meant your client has suffered a huge detriment... : )

Yes Jan you are right. My outrage got the better of me. Its been one of those mornings. You have to be found innocent for malicious prosecution to succeed. How about abuse of process instead.

hence my thread on tribunal or mags (the conclusion in that thread was, tribunal first)

this thread should be printed out and given to all tribunal chairs, and dm's, and cps's, who might be minded to do the mags first....

and criminal solicitors generally don't have the knowledge of the benefits system to be able to understand what the issues are (i'm not one!)

i'd get this case off to specialist counsel asap with a view to seeing whether leave to appeal to the CofA to quash the conviction might have a chance.

you will need a specialist sol in your local area who does crime AND benefits AND civil legal aid...

I think given the similarity of the wording of the legislation for both the offence and supersession, you need to be exploring the possibility of getting the conviction quashed with a competent criminal law practitioner. If you phone me I'll make some suggestions (01473 251100).

This case illustrates why one must usually try to get criminal cases adjourned until any tribunal matter is concluded. DWP frequently resist this (I wonder why?) and also try to pretend that the two proceedings are not connected.

The problem is made worse not only by most criminal lawyers lack of knowledge about benefits but also because they often don't know what welfare rights services exit in their area (something WR advisers could be addressing!).

This situation is far from unprecedented.

Whilst assisting a LA with its appeals 5 years ago, I had the dubious pleasure of dealing with a case where a claimant had already been convicted on 3 counts of fraud related offences. "Oh good", I thought. Slam dunk at Tribunal. By the time I'd finished burrowing down into the facts of the case, I couldn't even come close to defending the LA's decision. It was simply wrong. Further, the purported overpayment (on which the clmt had been convicted) simply couldn't be reconciled. The case never went to Tribunal.

More recently, in a case I had peripheral involvement in when assisting an expert witness (he being instructed by the defence), the clmt was charged with a fraud related offence. And then promptly succeeded with an appeal at Tribunal. Unfortunately, my involvement in the case ended and I have no idea what has since happened.

The above are not isolated examples of cases where justice would have been much better served with the Tribunal being heard first.

On a strictly personal note, my view is that where a Criminal prosecution is being pursued, a specialist Judge from the Upper Tribunal should automatically be seconded to the Criminal proceedings (unless the case has already been decided, in finality, at UT level). That way, Courts would (usually) end up with much more accurate information as to the true position in cases of alleged benefit fraud.

Disgraceful situation.

What evidence was presented to the magistrates and crown courts? A client told me that a case against them collapsed after it was held that merely showing that a decision maker had reached a decision of fraud was not admissible evidence in a prosecution as it was hearsay. I don't have any detauils though as I wasn't involved in that part of it.

In other words, in this case how did the prosecution prove that the client knew of the change of circumstances? If they didn't, with admissibale evidence, an appeal by way of case stated may be possible.

To be honest I was amazed at the court approach. I could could not see from the evidence (claim form, IUC and video evidence) how it could stick; but I am looking at it from a Social Security Law/Reg point of view. I did present all the issues to the barrister before the hearing; I have no criminal law experience, but it convinced me that the tribunal must come first if the court cannot deal with the issues. I strongly feel all cases like this should receive expert welfare rights advice before any court hearing, but the link between solicitors and welfare rights advisers are weak (in my area anyway). Every time I have had the solicitor/Welfare Rights link the outcome has always favoured the client and the case has been dropped or weakened i.e. reduced the overpayment dramatically leading to no charges.

John Bott (Derbyshire)

Even where a person actually is guilty of some criminal offence, there is often a need for expert input to make sure that the calculation of benefit, or of the recoverable overpayment, is correct. As said in an earlier post, sometimes the facts of the case are known to the Department a long time before the end of the overpayment period, and every person should be entitled to be presented with a decision that is legally correct before being held to account in the criminal courts. Having worked in the DWP for many years, and now in Welfare Rights for 7 (and no, I am not some embittered ex-DWP employee with an axe to grind against the department) I have always taken the same view as most here, that the tribunal should take place before the criminal case except in very rare cases. I have always had the impression, whether correctly or not, that the legal side of the DWP (i..e solicitor's branch, who deal with prosecutions) by and large holds the appeal process in something close to contempt - sometimes, I am afraid, it appears that through igonrance or whatever, solicitors acting for clients on criminal charges hold a similar lack of regard. For example, there have been a number of cases over the years where a person has had charges dropped, or been found not guilty, and has been given the impression by their legal team that all is done and dusted, only to find the overpayment is still outstanding and the DWP are still seeking repayment, with no appeal ever having been registered agianst the overpayment decision in the first place

I share the anger and I do hope the case is resolved successfully for your client.

Neil raises a good point that we need to be proactive in forging closer links with local solicitors.

And all I can add is that this problem is not confined to prosecutions. Many clients accept cautions and penalties where dispute procedures are not concluded and, whilst the ramifications may not be so severe than a prosecution, the anxiety felt can be just as damaging.

Thanks for all the replies. Correct me if I’m wrong but it seems the only route open is the Criminal Cases Review Commission because there was no appeal lodged within the 28 days time-limit. I am hoping the client finds a good solicitor who will consult with me and challenge the conviction. I cannot understand how a court can operate in the interest of justice without looking at the issues, without an expert witness, and find someone ‘guilty’ who pleaded ‘not guilty’. A worrying thought for all… it’s going to continue to happen, ‘guilty but not’. I will certainly be hoping to create a stronger link with solicitors in Derbyshire.

John Bott (Derbyshire)

john, chesterfield law centre has casework funding from the Equality & Human Rights Commission (EHRC) for cases of discrimination in the provision of goods, facilities and services.

http://www.chesterfieldlawcentre.org.uk/default.asp?id=discrimination_4

i have been similarly engaged on this work for the last year (one reason why i haven't posted as frequently as i used to here on rightsnet).

imo, your client has a valid complaint against the DWP, regarding their decision to prosecute him, entailing failures to have due regard to its public equality duties under the DDA, and there is also a possible breach of his article 6 rights - (i'm not sure which body is responsible). i would encourage him to pursue a complaint, and make a referral to chesterfield law centre. this doesn't preclude any action he takes regarding appealing his criminal conviction, but could perhaps be taken in conjunction with that other action?

it seems your client couldn't have appealed within 28 days - the fresh evidence (in the Sec. of State's submission, and the UT decision) may provide grounds for an extension of time limits, but he'd need properly qualified legal advice on the criminal conviction appeal

some years ago when i was at a previous firm, a client came in for help with a benefit matter involving a criminal prosecution. my firm did not do crime, i said, try soandso other firm near by. was told, person had been there; said firm had started working for DWP and in any event admitted they knew nowt about the subject... doh.