If the appelant decides that they would prefer to have the a criminal case dealt with before the hearing of an appeal on an overpayment is it generally sufficient grounds for postponement to state this or is it best to have more reasons?

No, s/he will need more reasons. Have a look at CH/1216/05 for a good discussion of the issues, particularly the commissioner's comment that it may not be a good idea for a tribunal to postpone/adjourn just to give the appellant the advantage of surprise in the criminal proceedings.

Regards
Paul

Fri 26-Oct-07 11:06 AM by Kevin D

This issues doesn't appear to be finalised.

According to the Cmmrs site, CH/1220/2005 / CIS/1216/2005 are currently being challenged in the Court of Appeal (Mote v Sec of State & anor).

www.osscsc.gov.uk/decisions/forthcoming_appeals_to_the_courts.htm

Edit: Ironically, I have a case where it would, in my view, be beneficial for it to be heard by a Tribunal before any other proceedings that may or may not be taken.


Regards

I have often thought that if the case rests on an alleged overpayment which is supposed to have been fraudulently obtained, there could be an advantage in having the Tribunal case first. This is very definitely the case if there is serious doubt as to whether there has been an overpayment at all, eg in a supposed LTHAW case. A Tribunal might find that as a matter of social security law no overpayment has occurred, which somewhat scuppers any fraud case...

Mind you, we recently had a case in our bureau (DLA while working -sounds familiar?) where client was found guilty of fraud but the Tribunal subsequently found no recoverable OP (can't remember if they found no OP at all, though frankly on the evidence I doubt this one was VUTW)

Based on my experience as an expert witness in benefit fraud cases, I think it is almost always better to have the benefit appeal heard before any court hearing. Is this why DWP internal instructions to fraud staff state that they should seek to adjourn tribunal hearings when criminal proceedings are in train? (Surely this conflicts with art 5.3 & 5.4 ECHR? - need for a speedy trial).

In my experience, benefit overpayment decisions in criminal cases are no better than those in other overpayments - I've had cases where people are still entitled to the benefits they have been accused of defrauding and cases where the figures are just plain wrong - in two cases by the order of 5 figures against the defendant. In not one of the cases in which I have been involved has the quantum been right and/or the person not entitled to at least some of the money.

In CH/3744/2006 Commissioner 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".

People stand to lose their liberty (and often their home and sometimes custody of their children) in criminal cases, so it is deeply worrying that such poor quality decisions are key evidence in fraud prosecutions and that these appear to be rarely questioned.

And far too often lawyers acting in benefit fraud cases do not get the claimant to appeal nor do they appera to appreciate the significance of this. Surely acting in a benefit fraud case without knowing the benefit rules is rather like acting for a client charged with a motoring offence without the lawyer knowing how to drive?

I am coming to the view that in many cases defendants in fraud cases are being over-sentenced or even wrongly convicted. The advice sector needs to become much more involved in fraud cases by building links with local criminal law practitioners and offering to take on cases so that the only cases which go to Court are those where the overpayment is accurate and truly recoverable.

Hear Hear, Neil.

I would be interested to read what Housing Benefit Advice has to say ...

i agree with neil. I don't do any criminal work, but get a lot of people coming in having been/about to be interviewed under caution. Often there is no crime at all .... and it's depressing if criminal lawyers defend people re benefit crime if they don't know about the benefits system....

I've never quite understood how it could make sense to have the criminal matter dealt with first, since the underlying benefit questions have to be resolved and if they are resolved in the client's favour, where's the crime?

ask housing benefit info/advice, claire.

this isn't a rant about HBinfo who are a very useful resource,

but ...

I don't think Neil's posting will have them breaking out the bubbly ...

Hi Rob,

I think HBinfo's position will be that what should happen is what the law provides for. There may be contributors to the forums that hold a particular view, but I don't think that would necessarily be shared by the "site".

Even though most of my work is through LAs, I nevertheless broadly agree with the sentiments expressed in this thread - particularly with regard to the quality of IUCs and that there are definitely cases where proscutions have been successful where they should not have been.

Regards
Kevin (a regular contributor to HBinfo)

...I'm not clear how HBInfo got drawn into this discussion, certainly nothing I said was aimed at that very useful resource.

"...I'm not clear how HBInfo got drawn into this discussion, certainly nothing I said was aimed at that very useful resource"

I don't know either, Neil .... very odd! I still agree with you whatever HBInfo say ...(if they ever say anything on this thread!)

for my fourpeeny's worth I also agree with Neil.

Our experience is that fraud prosecution cases are poorly evidenced. Also, unfortunately, it is our experience that solicitors (ah hum, and other advisers) do not advise claimants to appeal the benefit decision(s).

We have failed to get the court to adjourn the criminal hearing pending the outcome of a tribunal decision - leading, of course, to the situation where a claimnt is found quilty of a criminal offence which it is subsequently found be a different jurisdiction not to have existed. Now there used to be a popular phrase about joined up thinking.....