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birmingham - prosecution - urgent
a client of the firm in birmingham, with a head injury (such that he has no capacity and Court of protection involved) was interviewed under caution (on his own!) by DWP Fraud and is now being prosecuted! Can someone urgently recommend a criminal solicitor who knows their benefits in Birmingham! or someone with whom you liaise closely - this is not something we can deal with from Durham! we’re not so worried about the potential overpayment decision (they’re getting the benefits back anyway on CRU recovery but that would be a massively complicated legal argument if they tried a double recovery!)
got the answer already!
As a matter of interest does anyone know if DWP are obliged to involve an’ Appropriate Adult ‘in a case like this- If the client was arrested by the Police on suspicion of a criminal offence then he would , under PACE, have to be interviewed with an Appropriate Adult present even if he declined the offer of a solicitor .The Appropriate Adult also has the right to ask that a solicitor be called gainst the detained person’s wishes if the AA is clear that it is in the detained person’s best interests.
Guidance for the Police interviewing suspects are contained in PACE Code of Practice C and should be followed by DWP officers conducting IUC. Appropriate adults should be contacted and, where appropriate, mental health assessments should be carried out, prior to interview. Substantive breaches of PACE guidance could render the entire interview inadmissable as evidence in subsequent criminal proceedings.
I have been an appropriate adult since the early 1990’s and I have never been asked to attend a DWP IUC although I have been to lots of Police interviews. This may be because I have a full time job as a welf and only act as an AA out of hours and other colleagues are picking them up. Has anyone ever known of an AA to be involved in a DWP or LA IUC?
Yes. I remember one case where the LA postponed an IUC so that the claimant could have an AA.
My main reason for replying though is Claire’s comment about not being worried about the overpayment decision. Even though an overpayment may be wholly recoverable, it is still important to check the overpayment calculations, which are frequently wrong. I’ve got an IS one at the mo where the JC’s detailed calculation only included periods where the claimant had income. I did the whole calculation again, week by week, and found that the overpayment was 30% less because the JC had ‘hidden’, within the overpayment periods, periods where was no income to reduce IS. I also found other errors both for and against the client.
Also, underlying entitlment and offsetting (notional or actual) should always be considered by us welfs because even though the overpayment itself may be correct and recoverable, the courts can reduce the actual loss to the public purse by any other unclaimed entitlement and this can have a big effect on sentencing in the event of a successful prosecution. It’s also appropriate for administrative penalties. Crim sol’s cannot in my experience don’t even know that, let alone be able to do it.
that’s a thought, tony…i’ll get that double checked as well, but note the CRU point…