Abuse of authority?

I attended at an interview under caution with a client t’other day. It became apparent that the evidence on which authority to delve into my client’s bank accounts was flimsy indeed. Now I have to admit that my knowledge and experience of such matters is limited but I gave a resonable account of myself at the interview when I posed some difficult questions to the interviewing officer as to the miserable nature of the evidence and the subsequent authority to access bank details on such poor and inadequate evidence.

The reasons for this posting is a question about whether my client has any challenge about the accessing of her bank details on the grounds of possible abuse of authority in that the evidence on which the authority was sought was not enough for granting access? If there is, what route would I assist her in taking: Would it be via a solicitor for Judicial Review or, through the normal appeal route of 1st and possible 2nd teir or, via an MP for a possible ex gratia payment or, through the County Court or….? I feel that my client has been hard done to and although not a supporter of this litigious society, I do feel that this scenario would warrant some financial compensation.

Any thoughts or suggestions please.

P.S.  Indeed, who should be challenged? the bank, the DWP, or both?

Thank you.

Patrick

You need to ascertain the legal powers that the Department says gave it the right to do that and then find out whether the proper procedures were followed.  If the power does not exist or the power was abused then your client might be able to sue the Department in the county court for damages and the bank for negligent disclosure.  Your client would need to seek a solicitor’s advice on the matter first.  However, going for an ex-gratia payment first might be a better option to avoid the hassle of going to court but also bear in mind any time limits for bringing court proceedings.

Thank you, most helpful as always.

Patrick.

The authority to get evidence and to investigate lies at Section 109B the the Social Security Administration Act 1992 that states:

  (1). - An authorised officer who has reasonable grounds for suspecting that a person -

Mmmmmm, “reasonable grounds” hey?  Well then, we might just have a good think about that one.

Thank you.

Patrick

Just one thing to bear in mind.  For normal civil Tribunal purposes (distinguished from criminal proceedings), the manner by which the evidence is/was obtained doesn’t make it inadmissible - even if it was obtained unlawfully.

Patrick Hill - 25 February 2011 11:32 AM

The authority to get evidence and to investigate lies at Section 109B the the Social Security Administration Act 1992 that states:

  (1). - An authorised officer who has reasonable grounds for suspecting that a person -

Mmmmmm, “reasonable grounds” hey?  Well then, we might just have a good think about that one.

Thank you.

Patrick

in my experience, that seems to mean an anonymous phone call, or a complete misunderstanding of the law on the benefit in question…but i might be doing them an injustice based on a very few cases..

My suspicion is that the criteria applied to unreasonableness are likely to be the Wednesbury test:

  * the officer, in making that decision, took into account factors that ought not to have been taken into account, or
  * the officer failed to take account factors that ought to have been taken into account, or
  * the decision was so unreasonable that no reasonable authority would ever consider imposing it.

This is a difficult, but not impossible burden to overcome.  However, there may be an alternative claim in breach of Art 8 ECHR, the right to respect for private and family life.  To succeed in this, it would be necessary to demonstrate that on the facts the actions taken were not proportionate interference for the purpose of the prevention of crime in light of the flimsy evidence available.

If the bank statement exposed irregularities, you might find it difficult for a judge to look favourably upon either of these arguments.  i would strongly recommend seeking a legal opinion.

The flimsiness of the evidence is thus:

The DWP fraud officer made enquiries as to whether the claimant was registered with an agency for work. The answer to that question was - yes. It would then have been prudent to ask a further question - has the claimant done any work for you? This question was not asked and had it been so, the response would have been - no, the claimant has not done any work for us. Had the DWP fraud officer asked that second and important question, he would not have been in a position to seek access to the claimant’s bank account details. The failure to ask that question and the subsequent accessing of the bank without asking that question was, in my opinion, tantamount to abuse of authority.

Does this make sense and help our cause? Or am I reading far too much into what has happened?

Thank you.

Patrick Hill - 28 February 2011 11:37 AM

The flimsiness of the evidence is thus:

The DWP fraud officer made enquiries as to whether the claimant was registered with an agency for work. The answer to that question was - yes. It would then have been prudent to ask a further question - has the claimant done any work for you? This question was not asked and had it been so, the response would have been - no, the claimant has not done any work for us. Had the DWP fraud officer asked that second and important question, he would not have been in a position to seek access to the claimant’s bank account details. The failure to ask that question and the subsequent accessing of the bank without asking that question was, in my opinion, tantamount to abuse of authority.

Does this make sense and help our cause? Or am I reading far too much into what has happened?

I think that sounds unreasonable, but we’ve already reached the limit of my knowledge about public law.  I think your claim would lie against the DWP rather than the bank, since the request itself was probably made in accordance with legal procedure (it is unlikely that the banks will have any obligation to check the reasonableness of a procedurally correct request). 

In addition you may wish to consider a civil action the tort of negligence against the DWP, who would be vicariously liable for the actions of their employee.  It certainly seems on the facts you lay before us that he did not live up to the standard of a competent fraud investigator.  If your client has incurred finanacial loss as a result, this would be claimable as damages, and there may also be special damages available for the distress caused by the invasion of privacy.

So in summary, I think it’s worth taking further, but your next step should be to get a real legal opinion from a solicitor experienced in public law.  This should be possible under legal aid if your client has no income.

Yes, I think the fraud officer ran when he should have walked and in that respect has overstepped his bounds.  I agree with christi in that from the further info you have provided there is probably no claim against the bank providing it acted in good faith and responded to a lawfully compliant request. 

Furthermore, a designated officer may only require information from a bank if he has reasonable grounds to believe that the identified person is “a person who has committed, is committing or intends to commit a benefit offence” or is a family member of such a person.  He didn’t appear to have had sufficient facts at his fingertips to draw such a conclusion.