Hi - am dealing with a case where a welfare right person has made a challenge as to the size of the overpayment (amongst other things) and while I'm not expecting you to 'snitch' on a fellow welf I would like your opinion.
Basically we received an allegation that somebody was living with an undeclared partner in May - customer was eventually interviewed under caution in October when she admitted her partner had indeed moved in. Benefit was stopped on the date of the admission as although we thought we had some strong evidence we didn't think it was enough to suspend the claim, and this is where the complaint comes from, the welf is suggesting that the benefit paid from May to October is all official error as we had an allegation of fraud in May and should have suspended immediately....surely this can not be right - we get thousands of allegations, do you seriously expect us to suspend benefit for all of them based on a telephone call from an anonymous person?

Or am I missing something?

"Or am I missing something?"

Hmmm.... Ok. I'll start with the direct answer. I think you're missing quite a lot.

Now for something more constructive - although that doesn't mean it will be welcome.... . Based on the info given, I see several difficulties with your "decision".

1) On what basis was benefit stopped? LT isn't, in itself, a ground for ending HB/CTB. There may be actual, or underlying, entitlement in any case. Bear in mind, LAs are required to consider underlying entitlement before assessing an overpayment - this is a mandatory requirement (see CH/360/2006).

2) What enquiries, if any, were made into the clmt's ACTUAL circumstances with the partner in situ?

3) Did you terminate, or (genuinely) supersede the earlier awarding decision(s)? If you terminated, the failure to suspend first means the "decision" to terminate has no legal basis (various CDs / UTDs).

4) The "official error" argument will depend on the facts. On the face of it, I would also be arguing a delay of 5 months is sufficient to constitute an error on the part of the LA. What matters is WHY there was such a delay? If the delay was excessive / unreasonable / not justifiable? The reason given by you so far (effectively "...we have too much work...") won't go down well at Tribunal (or indeed in a Court). There are CDs/UTDs on this point.

5) Irrespective of admission, until / unless there is a conviction / caution etc, any overpayment is NOT, legally, as a result of fraud.


For transparency, although the majority of my work is for LAs, I do occasionally assist an expert witness ("claimant side") in alleged fraud cases.

The issue is what weight is given to the allegation - sometimes they are very detailed, other times as woolly as "she's got a man". It will vary from case to case, depending on the facts of each case.

There may be other evidence as well (eg credit data matching, banking evidence) which raises doubts about entitlement which means that benefit could be suspended as per reg 11 HB/CTB D & A Regs. Such evidence may also be available to the LA after the allegation but before the Interview under Caution and is later relied on by a DM to supersede the entitlement to benefit. I don't think the LA can have it both ways by relying on evidence and then also deciding that the delay in making a decision using it had no element of official error.

Often at some point before the Interview under Caution, on any reasonable analysis there is enough evidence to suspend payment and to argue that any overpayment from thereon was caused by official error (subject of course to the other requirements governing recoverability of such overpayments).

And there is also a conflict between the the desire of fraud investigators to gather evidence without alerting the alleged offender and the need for HB staff to limit the loss to public funds and loss of subsidy by suspending and then making a decision on entitlement.

You do have very wide powers to suspend HB/CTB in whole or part, so arguably as part of your fiduciary duty to protect public funds you should suspend where you have prima facie doubt of entitlement, though any decent welfare rights advocate acting for the client would rightly consider making a challenge as part of their duty to act in the best interests of their client and should certainly query/challenge any suspension.

I've known of cases being suspended on the basis of allegations and on other limited grounds such as not being at home when a HB officer calls to do a pre-arranged VF visit.

To have a "policy" of never suspending when an allegation is received would be an unlawful fettering of the LA's discretion as would a "policy" to suspend in all cases where an allegation is made.

"You do have very wide powers to suspend HB/CTB in whole or part, so arguably as part of your fiduciary duty to protect public funds you should suspend where you have prima facie doubt of entitlement, though any decent welfare rights advocate acting for the client would rightly consider making a challenge as part of their duty to act in the best interests of their client and should certainly query/challenge any suspension."

But you can't have it both ways either ! You are saying it is our duty to protect public funds and should suspend yet in the same breath say a welf would challenge if we did that !

It is interesting what you have both had to say - genuinely, the decision side of it I have no idea...I present the case to the decision maker and they then make the relevant decision and I have no part in that process so whether that has been done in accordance with the regs I do not know (and indeed try to keep myself deliberately apart from that process).

This particular case I still feel we have 'ticked all the boxes', partner was on a significant weekly income that nil's any entitlement so no underlying to consider etc full and frank admission i.e. knew she should have told us, knew it was wrong not to etc etc

But back to the suspension - seriously, even if we had a wealth of evidence I would have been reluctant to suspend as even the most compelling of evidence can still results in denials - and you can imagine the furore that people would cause if we suspended someones benefit and there was no overpayment at the end..........

What in the ideal world would satisfy you - suspend as soon as we have 'significant evidence' or at least give the customer a chance to explain the 'evidence' i.e an interview under caution, which is what happenned here ?

Assuming everything else has been done correctly there was no U/E etc, then...

If the claimant accepts that they had a partner and that they knew they should have told you but accepts that didn't report this to you then they materially contributed to the overpayment and it is not official error.

I really dont see how it could succesfully be argued otherwise.

On a slightly different tack, whether or not the overpayment arose from official error is only the first issue for consideration. All HB overpayments are recoverable unless they not only arose in consequence of an official error, but also the claimant could not (at the time of receipt of the payment or any notice relating to the payment) reasonably have been expected to know that it was an overpayment.

This double requirement can lead to extremely unfair outcomes where there is no "fraud" at all. In one case my colleagues took to Commissioners (as was then) the client had reported a change in income on time, and chased it up (all recorded by LA) several times thereafter. Official error accepted, but as the Commissioner found, she clearly knew she was being overpaid, which is why she followed up her report of the change when she did not get a reply.

In this case, it may well be that in the interview, the client accepted that she knew having partner with an income would reduce her HB. If so, I don't see how the issue of whether the failure to act earlier, and therefore whether the overpayment arose out of an official error, is ultimately crucial.

Cases are very rarely black and white, and I think that you are always going to have representatives looking to argue for their clients - that is our job after all.That can include arguing on "technicalities". I take the view that everyone is entitled to have their benefit assessed in accordance with the legislation in force, and it that results in us "defending" someone who others view as "fraudulent" or whatever, so be it. Everyone is entitled to get honest and frank advice about their benefit cases.

Brian

Just to acknowledge I hadn't overlooked the "contributed to cause of overpayment" and "could reasonably have been expected to realise" requirements in cases of LA/HMRC/DWP error. And, without too much risk of presumption, I think it's safe to say Neil hasn't either (for transparency, I know Neil Bateman).

iancity:

"What in the ideal world would satisfy you - suspend as soon as we have 'significant evidence' or at least give the customer a chance to explain the 'evidence' i.e an interview under caution, which is what happenned here ?"

Based on what was originally posted, it appears the LA first received info in May, but the IUC didn't happen until October. The info received in May was plainly credible, otherwise it wouldn't have been investigated at all. On that basis, and while acknowledging there is almost certainly more to this, such a lengthy delay does raise questions. So, in the "ideal world", my honest answer is that the delay should not have been so long.

A couple of other matters. While completely agreeing that the fact finding process during an investigation in a potential fraud case must be kept separate from the decision making, I still think it is sensible for both the investigator(s) and processors liaise to the extent of being clear about each role. It is all too common for investigators to "recommend" to decision makers "....this claim should be cancelled as our evidence shows the clmt is LT / has excess cap...". In fact, the recommendation *should* (normally) reflect the possibility that there may still be entitlement. At least ULE / actual entitlement appears to have been considered in the case cited in the original post - this is surprisingly rare.

And (almost) finally.... Let's say, for the sake of argument, the LA's delay WAS an error, but the O/P (for May to Oct) is still recoverable under the civil provisions of the HB/CTB regs in conjunction with s.75/76 of the SSAA 1992. For INDICTMENT and/or SENTENCING purposes in a case of criminal proceedings, it is STRONGLY arguable that any o/p in respect of the "delay" period should not by attributable to any "fraud" related indictment. So, the delay is still potentially important from that aspect. In the case described, I think it open to very strong argument that any part of the o/p for May to October should not be part of any criminal proceedings.

For the avoidance of doubt, irrespective of whether the work is for a LA or a claimant, the bottom line goal should surely be the same; i.e. to reach the correct decision in accordance with the law (even if, morally, we may have a personal view that differs).

I think that what you are missing is that the authority is required to act in accordance with the law. If you don't think the welfare rights officer has a valid case, then argue the point at tribunal or court. It is up to the tribunal/court to decide.

Either the authority wants to do things properly and make their own minds up, or you want us to do it for you - though why trust us rather than the welfare rights adviser concerned with the case? I will help you; the welfare rights adviser is correct and the authority is wrong. There, you can now reduce the recoverable overpayment. Glad to help.

Do fraud officers have an internet forum that we welfare rights people can become members of? I am sure that welfare rights people would have many postings asking for opinions on the actions and practices of fraud officers, of course not requesting that you would 'snitch' on other fraudies.

Thanks for all the comments - Andy, no need to be sarcastic, genuinely came on here seeking an opinion from people well versed in their field which could give me an insight into where this welf was coming from - I understand now (although I still think we are right to have suspended when we did, but I can see the argument) and was pleased I posted...I actually come on this forum quite a bit although have to hold myself back from posting most of the time because my views are generally the polar opposite of others on here.

There are a few fraud officers forums but unfortuantely none that allow welfs on...personally I think that is a great pity because I have learned a lot from this forum over the years and I think an awful lot of my colleagues would not have such a blinkered view if they read some of the posts on here......

Kevin and Neil

Just to say I hadn't doubted your expertise in this area at all, as two well respected contributors, but just pointed out the other requirement of regulation 100 in case other forum users were not aware of it.

Regards

Brian

Ian, I was attempting to give you an objective view of the legal issues involved. Essentially, they are not cut and dried.

The question of one's duty to a client and what one might do if acting for that client is a separate point. When so acting, one has to do one's best, even if the legal issues are not clear.

Anyway, hope this debate has clarified matters.

One does come across a lot of cases where the OP continues past the date that the LA was aware of the circumstances. It is relevant for any criminal proceedings in terms of quantum for sentencing and may have implications for recoverability. It has much stronger and clearer implications for recoverability of DWP OPs given the wording of s 71 SSAA. 1992.

As an aside, it is important that fraud staff pass all evidence (esp earnings) to DMs in possible OP cases. Too often it appears that vital evidence for UE is not given to the DM. Aside from the potential for errors in the OP that this may cause, it's actually not very efficient and not very smart customer service to have other staff asking the customer to produce evidence which the LA already has. The caselaw requires the LA to use evidence and information which is available to it (or available to third parties).

Why are Fraud Officers (generally) reluctant to suspend ?

Before considering the answers it is definately not the case that FO's have the claimants best interests at heart. Suspension and a very quick resolution (several days, not a week or weeks) is the only way to deal with the the suspicion.

I think there are a couple of answers and I don't like either of them.

Is it the case that FO's hunger for an OP of a certain size that would deliver the greatest sanction ?

Is it the case that suspension is seen as an alert to the investigation and that it might compromise it ?

If an allegation that something is wrong comes from anywhere then the only way to deal with it is to establish whether there is any substance to it. Do those questions need to be asked in an IUC or can they simply be asked by anyone even in a letter? Perhaps that depends on the nature of the allegation.

Not all allegations are dealt with by way of a fraud investigation (take HBMS referrals as an example), many will simply be looked at by DM's and a decision made on the findings (often without speaking to the customer). So at some point somebody makes the decision about what can be dealt with that way and what requires further "investigation".

I assume the next step for an investigator is to decide what investigations they need to make AND whether to allow payment to continue in the meantime, I would love to know the criteria used to make decisions as to the latter.