Has anyone had experience of a colleague being interviewed under caution in relation to a claim for DLA made by a claimant?

Colleague assisted the claimant to fill in a claim form and provided a factual medical report as requested by DWP.

Claimant said "they told me to claim". That's as much as the investigating officer has admitted.

Looking to try & stop the interview asap.

Any info etc gratefully received.

The DWP have no power independently of The Police to compel him to attend an interview under caution so I would be asking the DWP to produce some evidence of collusion or conspiracy or encitement to defraud or to back off.

Alternatively, he could attend and say something like "until you produce some concrete evidence (as of the above) I don't intend to say another word". Then if they cannot produce such evidence he should just get up and leave.

However, that is my instinctual reaction to such DWP shenanigins but I'm a bloody minded sod! Your colleague might wish to be a little less confrontational and no one could blame him. Its easy for me to comment at such a distance and not having all the facts at my disposal.

He probably should seek legal advice.

Thanks like the attitude, similar advice given - slightly less "confrontational".

Any other tactics gratefully received.

Would like to help colleague resolve this ASAP, not only to reduce the anxiety for them but also because there has been a paradigm shift in attitude from the team they work within.

Attitude was all about helping to put in appropriate claims based on objective, accurate medical fact. The attitude now is we are not going to assist if this is the consequence.

Very worrying.. Can you let us know what happens.. x

That's seriously worrying. I recently repped at a DLA overpayment appeal following IUC- client was also being prosecuted on basis claim was fraudulent but case was thrown out luckily (and appeal succeeded to all intents and purposes). But I did have a nasty moment when I realised I had helped the client with the original claim form many years earlier.. In view of the above post it makes me wonder what would happen if a similar scenario arises again?

Do let us know how it pans out.

I agree it is worrying, I will keep this thread updated.

When I do a DLA claim form I will always write on it: "This form was completed by a CAB adviser in the presence of the claimant and on the basis of information provided by that claimant." Maybe you need to add "solely" in there somewhere.

I just cant understand how they can look at the advisers rle in this.. Claim forms are only completed using info provided by the client.. But I think Ariadne's correct in saying we should perhaps add a disclaimer to the form when completing them.

I understand the concern and caution behind the idea of putting disclaimers on claim forms but is this a road we really want to be going down? This is an assault on our independence, objectivity and professionalism as advisers and it cannot be allowed to go unchallenged.

We complete forms on the basis of information given to us by clients taken in good faith. Experience teaches us how to word the information in a way that is true to the clients evidence and relevant to the conditions of entitlement, so that it is not simply a case of writing down the clients statements ‘word for word’ but of putting the information down in such a way that it is cogent and to the point. To put the best honest case for the client.

All advisers I’ve ever worked with who so much as ‘sniff’ a fabrication or a lie question their clients a little more rigorously and so long as the responses are at least in some way plausible will then relay that information on to the claim form. What those advisers will not do is put down information that they know for certain is untrue. These cases are rare. We will generally have no reason to disbelieve our clients. What evidence do we have after all?

Just as it is not our role to collude with clients to tell lies or defraud it is equally not our role to police the claims process. Clients have a fundamental right to make a claim for benefit and in the absence of concrete evidence to defraud, or of information, which we know to be untrue, we have a responsibility to assist them.

After all, the client signs the form not the adviser. The adviser has signed no declaration to the effect that the information given is to the best of his knowledge true and accurate, etc.

Once again, it is a matter of evidence in each case. If the DWP think that I have colluded with a client then prove it! Produce evidence that will stand up in a court of law or shut up. I ain’t afraid.

Start of rant...............

I'm slightly puzzled that advisers - particularly when doing DLA - should worry about being confrontational (just cannot imagine how you can be nice to a typical DBU idiocy!!).

Some of the posts suggest that advisers routinely sign forms which I think is quite unneccesary. Let the applicant sign the forms - it's their claim. Only sign for them if the applicant really cannot - and then only with full description why you HAD to fill in and sign (after all it is an example of help needed)

Would not dream of going to a formal interview with a fraud investigator. If I ever got asked I would insist that before I even considered it they would have to gime me written reasons why the interview was neccesary.

If reasons were refused I would cheerfully tell them what they could do with their interview.

..........end of rant

Phew - thats better!

I agree with Paul totally.

My understanding, and I'd be happy to told I was wrong, is that an interview under caution should only be carried out where the investigator wishes to question a person regarding their involvement or suspected involvement in an offence and that any responses provided can only be used as evidence against the person being questioned, ie not against another person (in this case, the claimant).

For this reason I would urge you to contact your own legal section and/or your trade union.

Bear in mind also that most of what passes between adviser and client will come under the definition of "matters subject to legal privelage" and safeguards exist to protect this.

Unfortunately, legal professional privilege does not apply to non- solicitors/barristers. In Dadourian Group International Inc v Simms <2008> Chancery Court. Patten J said:


“In New Victoria Hospital v Ryan <1993> ICR 201 the Employment Appeal Tribunal held on an application for
discovery that communications between the complainant's former employers and a firm of personnel consultants
who had acted as their advisers were not covered by legal professional privilege. Tucker J at page 203H said
that:
"…there is a more fundamental reason for not affording privilege to these documents. That is because in our opinion
the privilege should be strictly confined to legal advisers such as solicitors and counsel, who are professionally
qualified, who are members of professional bodies, who are subject to the rules and etiquette of their professions, and
who owe a duty to the Court. This is a clearly defined and easily identifiable qualification for the attachment of
privilege. To extend the privilege to unqualified advisers such as personnel consultants is in our opinion unnecessary
and undesirable. …"

120. In Three Rivers (No 6) the point did not arise but Mr Samek pointed out that the definition of legal advice
privilege given by Lord Rodger (at para 50) was expressed in terms of communications in confidence between
solicitors and their clients. He also referred me to the decision of the House of Lords in Jones v Great Central
Dadourian Group International Inc v Simms <2008> APP.L.R. 07/25

Arbitration, Practice & Procedure Law Reports. Typeset by NADR. Crown Copyright reserved. <2008> EWHC 1784 (Ch) 16
Railway Company <1910> AC 4 where information provided by an employee to his trade union to enable it to
decide whether to grant legal assistance with a claim against his former employers was held to be discoverable
at the suit of the employers. The privilege in the material was lost when it was communicated to someone "who
was not a solicitor, nor the mere alter ego of a solicitor".

121. Legal professional privilege operates to prevent the disclosure of material which is likely to be highly relevant to
the issues raised in the litigation and would otherwise be admissible in those proceedings. This rule of public policy
is said to be justified by the need to ensure that communications between a lawyer and his client involving the
giving of legal advice should remain confidential unless disclosed with the client's consent. Without this guarantee
of confidentiality the client is unlikely to feel able to put all the facts before his lawyer and without this
information the lawyer will be unable to give to his client the advice which he is entitled to and needs. Absent
waiver the privilege once established is absolute. There is no balancing exercise to be performed unlike in cases
where the advice, although confidential, is not as such privileged. Obvious examples of cases in the latter
category are discussions between doctor and patient or accountant and client. The giving of legal advice is
therefore placed in a special category apart from any other species of confidential communication : see the
speech of Lord Scott in Three Rivers (No 6) at paragraphs 23 – 34.

122. It is therefore no surprise to find legal professional privilege described in terms of communications between a
lawyer and his client because this is the relationship to which the law for the policy reasons I have described gives
this extended form of protection. No other professional relationship qualifies. But it does not necessarily follow
from this that a client who in good faith instructs someone whom he mistakenly believes to be a qualified solicitor
or barrister should forfeit the protection of the legal privilege which he would otherwise obtain in relation to the
disclosures he has made or the advice he has received.

123. In Calley v Richards (1854) 19 Beav 401 Sir John Romilly MR upheld a claim to privilege in respect of
communications between a person and his legal adviser who had been a solicitor but who at the time of the
communications had (without the client's knowledge) ceased to practise. The privilege, he held, was only lost if the
client knew at the time that the person he instructed was not a practising solicitor. A similar view has prevailed in
Australia: see Global Funds Management (NSW) Limited v Rooney (1994) 36 NSWLR 122.

124. In my judgment the EAT was clearly right in New Victoria Hospital v Ryan to conclude that legal professional
privilege did not attach to communications between the employers and a firm of unqualified consultants even if
the latter were in fact relied on to give legal advice. The privilege is conferred to ensure that qualified lawyers
are protected in their dealings with their clients. The corollary to this form of protection is that the lawyers in
question should be subject to the control of their professional bodies and the rules of practice which govern them.
But in New Victoria Hospital no issue of mistake arose and the case is not therefore inconsistent with the decision in
Calley v Richards”.

Mon 11-May-09 04:08 PM by Kevin D

There are a couple of standard phrases I rely on (er, when I remember).

Forms: signed or completed "...as a scribe..."

Correspondence: "...based on the information given to me by "'X'..."; or "...'X' stated..."

As for DWP/LA IUCs generally, my advice is not to attend.

PS: I agree with nevip - the privilege rules do not apply to WROs unless they are lawyers AND acting in that capacity.

There is a flip side to this. I have recently seen a HB claim (subject to appeal) where the clmt had not previously been liable to pay rent. Then, HB claim made with newly created liability - allegedly.

It is now suggested by the clmt, who plainly doesn't understand the significance of what she has said, that she was "encouraged" by the clmt's support worker to get a liability created simply because the clmt would NOW be entitled to HB. The L/L happens to be the clmt's parent(s)....

I'm less than sure Support Workers or Advisors should be offering advice in this context.