If someone writes something untruthful on a claim form, does that allow a decision maker to nullify the claim in its entirety, or do they have to look at the decision again de novo?

In my case client was to move into mum's house and mum move out. She rang HB department who said 'can't rent off your mum'. Mum's surname different so client did not tick "landlord a relative" box. HB awarded for 8 months till they found out.

Appears HB now demanding overpayment and I can't see any basis for that unless they have found agreement to be non-commercial.

Am I missing something here?

I've got a similar case.

There would have to be a decision either way wouldn't there?

Maybe the LA are still locked into the cancelling claims mode?

Surely they're either going to say not liable, or no legal liability and non-comm.?

Either way they've got to revise the original decision fraud or no fraud.

Exactly. If you want to stop it you have to have a reason, and not just 'We're unhappy cos of what you wrote on a form'.

My client is being prosecuted for gaining HB as she ticked no to being related for the last 12 years.

The tribunal papers are still to arrive.

The Magistrates are hearing the case already.

Therefore, she could be prosecuted under the Theft Act, be convicted and then go on to succeed at a tribunal hearing.

Cart before the horse?

My view is that the relation issue is a subjective one and the claimant would have to know that their claim would be found to be non-commercial and therefore pre-empted the DM by failing to disclose that info and therefore gaining HB they wouldn't otherwise have got.

It's not an excluder like living with your L/L or having capital in excess where failing to disclose has a direct effect on entitlement.

If you follow?

Exactly. But I don't think necessarily cart before horse - if client has ticked the wrong box knowingly then they have opened themselves up for prosecution for fraud.

The point is that whatever the fraud decision, the benefit decision has to be assessed on the facts and can be changed only if the facts nullified the claim (I think! I still feel there may be something which says no to this). So fraud can go on, if the LA want it to. I can't see why, but they can.

In my client's case she has now put in a new claim and ticked the 'related landlord' box. It strikes me as perverse to allow that claim but disallow the first because the facts are absolutely the same, the difference is only how those facts have been presented.

One piece of information on a claim form would not necessarily be determinative. It may form the basis of the decision but if evidence produced to show that information is incorrect then, all other things being equal, the decision must be revised, one way or the other.

In Andrew's client's case the LA are probably using Reg 7(1)(l) (taking advantage of the HB scheme) rather than Reg 7(1)(a) (commerciality) as they will probably be of the opinion that the not a relative box was ticked only after the claimant was told (incorrectly) that she could not rent from her mother.

Incidently, if the LA's case was strong on this point they may decide to prosecute for fraud as what they are (in all reality) saying is that there was real intention to deceive.

If they do not prosecute then that may be a useful counter argument as to the intention to take advantage of the HB scheme as the claimant may be able to show that the LA have no real evidence of intention to deceive.

Of course, lack of intention to deceive does not preclude a finding of 'liability created to take advantage of the HB scheme' but it may make the LA's case harder to prove.

Regards
Paul

Thanks Paul I really appreciate your input although interestingly 7(1)(l) (always one I'd have thought was a tricky one to litigate for) is "the liability was created to take advantage of the housing benefit scheme" which pulls it perhaps one back from the form to the creation of the tenancy.

I'm not sure why I think this means it less of a problem. I think what I mean is that it says the _liability_ and not the _claim_.

Incidently, forgot to say, I think that the ground for superseding the original award decision would be misrepresentation of the material fact that the claimant was related to the landlord and in the LA's opinion the liability was created therefore, to take advantage of the HB scheme.

This, of course, would have to be proved by the LA if challenged. Misleading information given to the claimant by the LA (re - renting from her mother) may form part of the claimant's rebuttal.

re John's case - if the prosecution is under the theft act, and the client has appealed, i would think it is a cart before the horse case. fraud involves dishonestly obtaining money that the person isn't entitled to. the question of entitlement is the one under dispute, and the question of whether there was an overpayment is dependant on the question of entitlement. the magistrates don't have jurisdiction over the question of benefit entitlement or overpayments of benefit. they make their judgement on the _fact_ that the person has received X amount to which they were not entitled. if a disputed and unresolved question is presented to the court as a fact by the prosecution, isn't the court being misled? or, put another way, can the decision to prosecute be made, before the basis of the prosecution case is established as fact?

as stated above, the question on the claim form is to identify to the LA whether it needs to ask further questions about the commerciality of the tenancy - it doesn't determine entitlement.

if the prosecution charge is the client obtained X amount to which he wasn't entitled, and the entitlement question is disputed, isn't it necessary to decide the appeal first?

if on the other hand, the charge is for an offence under the admin fraud act - dishonestly making a false statement is a different offence to obtaining money by deception isn't it? i know the question of appeals and prosecutions has come up before, and seems quite confused, and i may have confused myself further by thinking of these newish offences, so if someone can put me out of my misery...? : )

does anyone know what the purpose of false statement offences is?
is it a sort of 'attempted but foiled fraud' offence?

if somebody dishonestly claimed money he was entitled to anyway, is it a bit like the guy who believed he'd bought cannabis but on analysis, it was actually dried camel dung, which it is legal, but very stupid, to smoke?

jj

There is false accounting. I understand this includes claim forms, receipts etc.

You don't have to be successful in getting the money, intention or attempting to is enough.

But.... I don't think if someone dishonestly claims money they are entitled to it is an offence. Out of my area as I said before but the wording on the summons (x 9) in my clients case is .."you dishonestly, with a view to gain for yourself or with intent to cause loss to another in furnishing information for a claim for HB, produced or made use of a document, made or required fo anaccounting purpose, namely a HB claim form, which to your knowledge was or may have been misleading, false or deceptive in a material fact, in that it stated that your landlord was not related or in anyway connected to you, when your landlord was your brother contrary to Sec 17(1)(b) of the Theft Act 1968."

As you say JJ, if they were entitled any way, the dishonest bit doesn't (or shouldn't result in a prosecution, should it?

How could you be gaining?

It's the 'view to' isn't it? You thought that by ticking the correct box you wouldn't be entitled so you ticked the incorrect box instead.

As I said I think that in that case it's totally separate from entitlement. SSAA 1992:

"False representations for obtaining benefit etc.
112. - (1) If a person for the purpose of obtaining any benefit or other payment under the legislation to which section 110 above applies whether for himself or some other person, or for any other purpose connected with that legislation-
(a) makes a statement or representation which he knows to be false; or
(b) produces or furnishes, or knowingly causes or knowingly allows to be produced or furnished, any document or information which he knows to be false in a material particular,
he shall be guilty of an offence.
(2) A person guilty of an offence under subsection (1) above shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale, or to imprisonment for a term not exceeding 3 months, or to both. "

But as you say jj, if it's under the Theft Act then you have to have taken something away so you HAVE to have dealt with the entitlement and any linked OP's recovery first.

So it sounds like the LA have applied the wrong law, or applied the right law at the wrong time.

thanks. it looks like in theft act cases, if the benefit disallowance is appealed, the appeal must be heard first, but a certain amount of confusion entered my mind after reading some of the earlier discussions here on the subject.

i can't say i've come across any cases of prosecution under sec 112. i wonder how frequently it's being used?

jj

I'm a bit puzzled why there would be any OP recovery at all. If I understand the earlier posts correctly, when the form was completed correctly, entitlement was granted.

It would therefore make no difference to the O/P if misrepresentation or failiure to disclose was present or not because the whole O/P would be cancelled out by full underlying entitlement under reg 104(1)(b).

Thank you very much for pointing that out but if the revised decision was that the false statement could invoke reg 7 (1) (l) so that there was in fact no liability then there would be no underlying entitlement.

Sorry, must be because it's Friday. I had got the impression your ckient was now receiving Hb after submitting a correct claim yet no actual changes had taken place.

No apology needed it's a really moot point and not at all straightforward.

If the LA accept new claim with correct tick and exactly the same set of circumstances then I would have thought they can't say that the previous claim was set up to take advantage of HB.

In my opinion because the presence of the tick is NOT a material change in circumstances. You can't have two opposite decisions on the same set of circumstances.

(They haven't decided on the new claim yet)

How about the matter of the tick not being ticked on the previous 9 claims.

The claims have been looked at very closely and awarded.

Now the LA realise the box should have been ticked and on the same circumstances revise the decisions awarding HB as Non-Comm, No legal liability and taking advantage.

The agreement is the same, the payment history is the same as is the rent charged. But now the revelation of the relationship between landlord and tenant as being bro and sis leads the DM to take the same facts and use them as reasons for not paying.

Smacks more of revenge for being made a mug of than being dispassionately looking at the facts.

Same surname?

Yep Yeppity Yep Yep

I think that your previous analysis of the reality of this situation is the only logical course a tribunal could follow.

If clients relative i.e. mother does not live at the same property that your client is claiming for then client should be entitled to housing benefit. Depending on whether she meets all the other qualifying criteria of course.

I believe the rule is that you can qualify for housing benefit if your landlord is your relative and does not live at the property which is being let to the tenant. I have tried and tested this for myself - I recieved housing benefit on behalf of my brother. He rented my property. I did not live at that property whilst I let it out to him - no problems.

Cheers Kev.