Just to be clear, I'm working on behalf of a claimant in this case (not the LA).

The case is simple. Clmt awarded approx £25,000 for a personal injury claim - final payment made in 2003.

The clmt fails to disclose the money when making a claim for HB/CTB - this aspect is not in dispute. The reason given by the clmt for non-disclosure is that her solicitor advised it should not be disclosed as it was for personal injury. A rather large o/p has inevitably followed, along with a suggestion that the case is being considered for prosecution. For info, the diminution calc appears to be correct.

I'm currently assisting the clmt with regard to the normal appeal Tribunal issues. No prosecution notice has yet been served, so we'll cross that bridge at the time, if it's necessary.

I've trawled the site for other threads looking at wrong advice given by a solicitor, but only one has been identified so far:

www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=102&topic_id=3878&mode=full

If anyone else has examples of simlilar(ish) advice being given to a claimant, would they be prepared to share the situation on this thread? I'm looking for these examples in order to build a specific line of argument relating to the "realise" aspect of a possible "LA error" argument.

Regards

can't see a LA error .... but I like Simon Ennals thought in the other thread to which you refer about it could hae been in a trust therefore she woudl ave been entitled etc.. but how far it would get you, is another matter....


guess your client needs some legal advice from a new solicitor ....

Mon 22-Oct-07 12:57 PM by Kevin D

Hi Claire,

Agreed - the actions of a Solicitor will not count as LA error etc.

However, on the Appeal side, IF there is something that CAN be argued as LA error, the solicitor's advice is potentially relevant to the extent of whether the clmt could reasonably have been expected to realise s/he was being overpaid.

Part of the argument is to (try and) show examples that such incorrect advice does in fact get given - hence a reduction in questions as the clmt's credibility.

On the prosecution side, the LA would have to show "intent" relating to dishonesty. Clearly, if the clmt has followed the advice from her solicitor, there will be a strong argument that the clmt has not acted dishonestly.

Regards

granted no dishonesty ... but still no LA error either. your client has got a new sol, hasn't s/he?

As it happens, there may well be a LA error - hence the relevance of whether the clmt could have been expected to realise etc as she relied on the advice of the solicitor.

On the issue of the solicitor, it gets worse in terms of the advice subsequently given to the clmt.....

1) the clmt was advised by a second solicitor that she could not take action against the earlier solicitor as she was "out of time". The basis of the advice, apparently, was that there is a three year limit - statute of limitations was cited. The advice by the original solicitor was indeed given more than 3 years ago, but the consequences have only become apparent this year. So, the correctness of the second solicitor's advice is also being looked at (as I don't know whether such a time limit exists and, if so, when the trigger date commences).

2) the clmt was not aware that she could make a separate complaint to the Legal Complaints Service about the conduct of the original solicitor (this is now being explored).


Separately, on the HB/CTB front, a further, albeit well-meaning, party (not a solicitor) had advised the clmt that she could only ask for "another consideration" after the LA had already reconsidered its decision. So, there may be issues as to whether the appeal, now being submitted, is late. Fortunately, there is a document issued by the LA (probably inadvertently) which should enable that scenario to be avoided.


I'm having no difficulty in dealing with the HB/CTB related issues - the facts appear to be straight forward and there are no funny quirks involved. But, the issues relating to the advice given by the original solicitor are not so easy to deal with.

errr, limitation period for professional negligence is 6 years not 3

Thank you for that info Steven - much appreciated.

deffo 6 years....and i'm not sure how the regulatory body could assist......

"...not sure how the regulatory body could assist......"

Much as I'd like to explain how such a complaint would assist, it probably wouldn't be very prudent to do so at this time - at least not on a public forum. But, based on the information gleaned so far, I definitely don't think it would be a waste of time.

Update:

The Tribunal has found in favour of the LA.

The background was that a clmt had received a substantial sum of personal injury compensation which she failed to disclose to the LA. The clmt stated she had been advised by a solicitor that such payments did not affect social security benefits (including, specifically, HB/CTB).

It was argued (er, by me) that HBR 88 only placed a duty on the clmt to notify the LA of a change that she might be expected to know might affect benefit. In turn, the clmt was not under a duty to notify the change on the grounds that the advice given by the solicitor meant the HBR 88(1) test was not satisfied.

However, the Tribunal found that the negligent advice given by the solicitor was not the CAUSE. Reading between the lines, the Tribunal appears to have found that the CAUSE was the clmt's failure to disclose a relevant account on a claim form (not an intervention) with motive being irrelevant.

It also appears the Tribunal has decided that "compensation payments" and "building society account(s)" could not be sufficiently distinguished in that context.

Needless to say (I hope), I would not have represented the clmt had I thought she had acted dishonestly.

Thanks for the update. i take it you have referred client to competent solicitor?

Thu 31-Jan-08 03:46 PM by Kevin D

Hi Claire,

The outcome has devastated the clmt. She's not in any state to take much on board for the moment. The snag now is that even if she did take action, the solicitor would doubtless point to the Tribunal outcome and argue it wasn't his advice that was the cause - it was the clmt's failure to disclose. And that assumes the highly unlikely proposition that the solicitor admitted such advice was given in the first place. For what it's worth, having spoken at considerable length with the clmt, I am certain such advice was given. But, I don't quite see a Court accepting my opinion as being conclusive.....

At the risk of redundant egg-sucking lessons - - - notwithstanding the recoverability decision, are you lobbying hard over discretion not to proceed with actual recovery?

Hi Gerry,

Before considering that approach, I'll take a look at the statement of reasons. I'm not optimistic that the LA will play ball when taking into account the robust nature of their appeal submission and the fact the LA has already considered prosecution. The clmt's health is certainly a factor that can be referred to, but much will depend on whether the LA is prepared to soften its approach. There is one card still to be played, but its not yet time to reveal it.

Just to save someone a post, I am aware of both the Passmore and King cases in the event that the LA decides to revitalise its interest in a prosecution.

I would be taeching granny to suck eggs if I said that even if there was no failure to disclose, your appeal would fail uless you could show that the overpayments were caused by official errors of the LA, DWP or HMRC and if you cant do that the question of failure to disclose is probably irrelevant.

As for prosecution, I dont think the LA would have a case with or without King simply because the money would have been disregarded if it was placed in a trust.

What would be the point of deliberately failing to disclose, and risking prosecution when there is a legal way of getting the same result?

Go for a statement of reasons and check why the Tribunal hold there is no LA error.

Any inadequacy in the resoning could form the basis for you to get it before a Commissioner

Hi Derek,

I tried a couple of arguments to bring the o/p within "official error". For example, none of the claim forms contained any questions at all about any form of compensation. Also, part way through, the LA had an HBMS match showing conclusively that the clmt had an account which was different to the account already disclosed. I also tried to distinguish "compensation payments" from "capital" and "savings" and "investments". The Tribunal suggested, albeit very politely, that this was "an unattractive argument" in cases where the money, irrespective of source, was held in a building society account and where the claim form specifically asked about such accounts.

But, even if the Tribunal has agreed that there was any LA error, it appears to have applied the Sier principles in any case.

As an aside, I have no complaints about the conduct of the Tribunal. The Chair listened, made notes and even indulged in a brief conversation putting the (benefits) world to rights. But, the Tribunal didn't lose sight of what was before it (barring the SOR suggesting otherwise).

Such is life....

If there was an error that could have caused the overpayment, then you have to balance the culpabilities as per Sier.

There may be no culpability on the part of the claimant given the nature of the duty to disclose as you correctly pointed out to the Tribunal.

You might gain some ammunition from the Court of Appeal in Hooper v Secretary of State for Work and Pensions 24 May 2007 . That case involved a person who was getting incapacity benefit who had not declared work that could otherwise have been considered for permitted earnings. The claimant had not declared work even though he had been given a fact sheet that informed him that he “should” do so. Mr Commissioner Jacobs held that the word “should” was simply a polite was of telling the claimant what was required but the Court of Appeal held otherwise and that the word was too imprecise. Dyson LJ said at para 56

"That is why in my view, if the Secretary of State wishes to impose a requirement on claimants within the meaning of regulation 32(1), it is incumbent on him to make it absolutely clear that this is what he is doing. There should be no room for doubt in the mind of a sensible layperson as to whether the SSWP is imposing a mandatory requirement or not."

A prima facie failure to disclose was not held to be the signficant case of an overpayment in CH/3083/2005. Mr Commissioner Turnbull cited Sier at para 38 of his decision:

"38. The question then arises whether, given the Claimant’s failure to disclose the change to the Council direct, the overpayments were “caused” by the DWP’s error, rather than by the Claimant’s failure. In my judgment they were, at any rate initially. The Claimant’s own evidence is that she did not rely on the procedure for claiming extended payments as a reason for not complying with her obligation to notify the Council direct. She says that she did notify the Council, but the Tribunal rejected that evidence. It would in my judgment have been very understandable if the Claimant had, in all the circumstances, assumed that the DWP would notify the Council, and had relied on that being done. As I have said, it was implicit in what appears to be the machinery for claiming extended payments that that would be done. In my judgment, for that reason the DWP’s failure was substantially more potent, as a cause of the overpayment, than was the Claimant’s failure herself to notify the Council direct. I do not therefore think that it can be said that, at any rate initially, the claimant was “substantially responsible for the overpayments”: see the analysis of Simon Brown LJ in R(Sier) v Cambridge CC HBRB <2001> EWCA Civ 1523. “

You might have a problem if the Tribunal determines that the errors on the claim forms were misreprentations rather than a failure to disclose the change of circumstances, because a misrepresentation can be entirely innocent and be the cause of the overpayments, although this is not always the case. See for example CIS/117/1998