We are repping a gentleman in an issue of DLA overpayment. In a related criminal trial, he pleaded guilty to failure to the department of a change of circumstances, where he had failed to notify the end of a course of treatment.

Later the appeal tribunal (as regards the overpayment issue) used this guilty plea as the ground for a decision that he was not entitled to the mobility component of DLA - interpreting the previous guilty plea as an admission that his mobility needs had changed, even though the basis for his plea was *not* about his mobility but about the ending of his treating regimen.

Does anyone have any information or research sources for the validity of this decision?

Thanks.

We once had a similar case. The Tribunal was presented with a full transcript of our client's interviews under caution. These, combined with our client's guilty plea, led the tribunal to cast doubt as to his credibility. I suspect you might face the same problem.

there have been previous discussions here about a few times on fraud proceedings before the appeal hearing - it might be useful to search them out...

if i understand you correctly, you are disputing the disability decision, and the tribunal has decided it on the basis of the guilty plea. you need to know why your client pleaded guilty, what advice and representation he had, but i will be surprised if you do not have grounds to appeal to the commissioner. you should have a transcript of the IUC, as ruth mentioned.

your client pleaded guilty to an offence, presumably of not reporting a change of circumstances he should have reported. failing to report the ending of a course of treatment is not a criminal offence. it's difficult to see how the prosecution could go ahead before the disability question was determined by the tribunal.

it's worth remembering that the appeal is not a trial - it is considering different questions and is a different process (inquisatorial).

you need to consider reg. 32 of claims and payments - the relevant part of which says - "..and in particular shall notify the Secretary of State of any change of circumstances which he might reasonably be expected to know might affect the right to benefit, or to its receipt, as soon as reasonably practicable after its occurrence, by giving notice in writing of any such change to the appropriate office."

the tribunal needed to consider
-whether the ending of the course of treatment was a relevant change of circumstances to give grounds for supersession. (this will depend on the particular circumstances of the case)
-whether or not he satisfied the qualifying conditions after the c/o/c (the disability determination), and if not,
-whether or not he migh reasonably be expected to know it might affect his right to benefit (for the recoverability decision). i think ther's a commissioner's decision on reporting changes, but i can't get onto the site at the moment, and don't recall it off-hand.

i don't know how much of this is helpful or relevant to your case - you will know the particulars - but i have no confidence that the DWP's administrative systems are robust enough to safeguard claimants from prosecution for the purposes of obtaining benefit savings targets.

We had a client who was prosecuted for and found guilty of fraud - I don't think she pleaded guilty - but a Tribunal found that the alleged overpayment was not recoverable from her as she couldn't have realised how much she had improved, as it happened very gradually.

That's in spite of the differing burden of proof between criminal and civil cases - the criminal court was persuaded but the tribunal wasn't.

I recently came across a case where Counsel had insisted that the tribunal be postponed until after the criminal case so the appellant wasn't tempted to prejudice himself by talking too frankly to a Tribunal. I tend to take the view that if there are issues about whether a particular concealment/failure to declare was at all material, it's best for the expert tribunal to go first.

I think the key here is to be clear what was the factual basis for the guilty plea? In other words, precisely what did the client plead guilty to doing? When a client has pleaded guilty to a set of facts it will certainly be hard to convince a tribunal that he didn't really mean it. Having said that, I did manage that in one case where they preferred the evidence of the client to that of the prosecution witnesses, who they considered were lying. They accepted that the client had pleaded guilty only because he had been led to believe that he would then not go to prison, and he could get on with his life.

We then appealed his conviction and sentence to the Court of Appeal, on the basis that the tribunal had decided there was no overpayment. The court quashed the sentence (ie the fine and compensation) but upheld the conviction based on the guilty plea.

Simon Ennals