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Top Decision Making and Appeals topic #3180

Subject: "Fraud and Tribunals" First topic | Last topic
suewelsh
                              

Adviser, Citizens Advice Shropshire
Member since
27th Jan 2004

Fraud and Tribunals
Tue 13-Jan-09 01:46 PM

Hi,

I'm reping in an overpayment of DLA due to employment inconsistent with disability appeal, which was looking quite hopeful as client called DCS regarding her employment at the time she started and we could sort of show this. No mileage in arguing still entitled as client's circs had definitely changed.

Now client's fraud conviction has been heard and she was convicted of failure to promptly notify a change of circumstances. How, on the evidence I have seen, I do not know. I've never done an o/p with a fraud before and I don't want to waste client's time on a fruitless exercise. My feeling is that since this was our central plank and the Crown Court has decided there was a failure to disclose on a higher standard of proof, we haven't got a hope at tribunal. Any thoughts?

Also a bit confused by this in CPAG "successful prosecution of a fraudulent offence alters the burden of proof in an overpayment appeal". Meaning ... we now have to show that disclosure occured rather than relying on the DCS not being able to show it didn't?

Sue

  

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Replies to this topic
RE: Fraud and Tribunals, Neil Bateman, 17th Jan 2009, #1
RE: Fraud and Tribunals, suewelsh, 19th Jan 2009, #2
RE: Fraud and Tribunals - CH/1820/2006, paulmack, 24th Mar 2010, #3
      RE: Fraud and Tribunals - CH/1820/2006, paulmack, 24th Mar 2010, #4
           RE: Fraud and Tribunals - CH/1820/2006, PeteD, 24th Mar 2010, #5
           RE: Fraud and Tribunals - CH/1820/2006, chrislpl, 24th Mar 2010, #6
                RE: Fraud and Tribunals - CH/1820/2006, paulmack, 25th Mar 2010, #7

Neil Bateman
                              

Welfare rights consultant, www.neilbateman.co.uk
Member since
24th Jan 2004

RE: Fraud and Tribunals
Sat 17-Jan-09 06:06 PM

In CH/1820/2006 at para 8 it was held that "...in deciding this appeal, I am not in any way concerned with the success or lack of success, of any criminal proceedings. Nor am I concerned with arguments that may have been advanced in that litigation".

The criminal courts have neither the skill nor the jurisdiction to decide issues of recoverability of an overpayment and benefit entitlement.

Aside from the question of disclosure, there's still a lot for Tribunal to consider after a conviction

Much depends on the facts of each case, but it could include whether the decision making has been done properly to enable recoverability and the amount of the overpayment.

A common issue in fraud cases is that the "paying office" were aware of the material fact but delayed acting on it while investigating. This may be valid practice from an investigative point of view, but is no defence to the issue of recoverability under s 71 SSAA when the material fact is known to the paying office. I've seen this add nine months to DLA overpayments. One usually only finds this out by obtaining the Unused Material from the criminal case. Defence solicitor should have a schedule listing any Unused Material.

It's not unheard of for a Tribunal to decide there was disclosure or that it was not reasonably required, even after conviction (which of course may have been on a guilty plea with a plea bargain to avoid the stress of a trial and obtain credit under the Sentencing Guidelines for a lesser sentence).

It really is best that an appeal is heard before the criminal matter - caselaw clearly holds that an appeal should not be delayed pending criminal hearings and DWP policy is now to agree to long adjournments of criminal cases until any appeal hearing is resolved. Wider Direction powers in new Tribunal Rules can also be used to get speedier listing/obtain submissions from a tardy or reluctant DWP.

However, many clients facing prosecution and their lawyers don't realise the significance of appealing. I had one spirited young solicitor say to me that his client could not appeal against the overpayment as he had not been convicted. Sigh...it's moments like that which make me want to give up welfare rights and take up busking for a living.

Anyway, whatever you do, don't withdraw the appeal.


  

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suewelsh
                              

Adviser, Citizens Advice Shropshire
Member since
27th Jan 2004

RE: Fraud and Tribunals
Mon 19-Jan-09 01:33 PM

Thanks very much for this. I wouldn't be so downcast but I think disclosure is really the only argument we have. Onward and upwards!

  

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paulmack
                              

service manager, PCT & HIV teams, Manchester Advice
Member since
23rd Oct 2009

RE: Fraud and Tribunals - CH/1820/2006
Wed 24-Mar-10 11:50 AM

Does anyone know where to locate a copy of CH/1820/2006, referred to above?

thanks

  

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paulmack
                              

service manager, PCT & HIV teams, Manchester Advice
Member since
23rd Oct 2009

RE: Fraud and Tribunals - CH/1820/2006
Wed 24-Mar-10 12:40 PM

I should have explained the unusual background to our fraud case. Our client claimed DLA in 2006 but failed to disclose a change of circumstances (improvement in condition). The criminal case went ahead prior to the Tribunal hearing. Following a plea bargain, the court our client was entitled to DLA for some of the claim period, and a £7000+ overpayment was decided. The tribunal hearing then went ahead shortly afterwards. The tribunal decided they were not entitled to DLA for ANY part of the claim and decided a £16,000+ overpayment. The appellant was unrepresented, did not attend and a set aside is being pursued. We may eventually advise a pragmatic course and withdraw the appeal once the decision is set aside, depending on the full facts of the case.

My question is: what takes precedence when deciding what amount is eventually recovered from our client - a criminal or civl court decision?

thanks

Paul

  

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PeteD
                              

Welfare Department Manager, Stephensons Solicitors, Leigh, Lancs
Member since
23rd Jan 2004

RE: Fraud and Tribunals - CH/1820/2006
Wed 24-Mar-10 02:20 PM

Last point....my understanding:-

if the initial DWP overpayment decision states £x, and a prosecution goes ahead detailing £y as the loss to public funds, then £x applies in all cases for recoverability.

if the initial decision (again amount £x) is appealed and an amount of £z is subsequently deemed recoverable (higher or lower), and a posecution case again finds £y...then £z still remains the recoverable amount.

Recovery of overpayment (and the amount) is wholly determined by the DWP or a Tribunal on appeal, or the civil courts.

The criminal courts will only look to establish the loss to public funds in order to decide sentencing and possibly to consider mitigation.

more generally...

In the instant case, I have to concur with Neil...the question of guilt, plea bargaining, admin penalties et al are merely sideshows in terms of the Tribunal's role...however, I can recall several cases where the tribunal have taken such issues into account (albeit unlawfully). As Neil again states, there are numerous aspects to any op case beyond the question of disclosure/timing of disclosure.

It seems to me that a tribunal may still wish to hear the argument on the "fact" that the claimant did indeed inform the Department, irrespective of the crown court's decision that such disclosure was unreasonably delayed...seems to me the crown court may have applied a different rationale to the case somehow??

  

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chrislpl
                              

Welfare Rights Department, Linskills Solicitors Liverpool
Member since
24th Nov 2009

RE: Fraud and Tribunals - CH/1820/2006
Wed 24-Mar-10 02:51 PM

Dear Paul,

My understanding is that a decision on the amount of overpayment in a criminal case has no effect of the amount that can be recovered under Section 71 Social Security Administration Act 1992. It has simply been an assessment of the amount of overpayment that can be proven "beyond a reasonable doubt" by the Prosecution.

The amount of recoverable overpayment under Section 71 SSAA is a civil debt, often including the amount determined as recoverable in a criminal prosecution. It can be enforced in the same manner as any civil debt.

I would still pursue the O/P set aside application and pursue the overpayment appeal on its own merits and ignore the criminal proceedings and its outcome. Defendants in criminal cases can often be satisfied if their legal respresentatives reduce a criminal overpayment amount so that they are not at risk of a custodial sentence. This can be explained at a Tribunal to explain why any Criminal conviction is not determinative as to the decision the Tribunal should take. Some tribunals will accept that and some will not.

In respect of your potential appeal, I would refer you to CD's CDLA 1823 2004, CDLA 5574 2002 and CDLA 5803 1999 and the Court case B -v- Secretary of State for Works and Pensions <2005>.

I hope that this helps

Chris

  

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paulmack
                              

service manager, PCT & HIV teams, Manchester Advice
Member since
23rd Oct 2009

RE: Fraud and Tribunals - CH/1820/2006
Thu 25-Mar-10 09:30 AM

Many thanks, Pete & Chris, for your helpful replies.

  

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