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Interaction bewteen criminal prosecution and Tribunal to hear overpayment appeal.
I think this has been the subject of other posts - sorry if it has.
Client prosecuted for failing to declare change of circs - not guilty on all charges at criminal trial. Appeal hearing on overpayment next week. I trawled the criminal file for evidence that would be useful and have submitted it.
Are there any UT decisions that could assist generally in a situation like this?
Many thanks
hi
found CH/704/2005 which says that decisions made by the courts in the exercise of their jurisdictions on issues of fact are capable of binding a tribunal where the parties in the court case and before the appeal tribunal are the same; are acting in the same capacities; and there is no new evidence which substantially changes the case before the tribunal.
here’s a link to briefcase summary -
cheers ros
I am not sure how comfortably the decision referred to by Ros sits with R(S) 2/80, which I have used in a case mentioned in a long running thread on a similar issue in the past (where the client was found guilty on 4 out of 7 charges, but won her later appeal tribunal). It seems to be on a very limited set of circumstances and the fact it is unreported suggests it didn’t have commissioners running to back it.
In all cases, you must look at what the charges actually were, and consider the relevance of the issues as to the legislation that applies to the benefit you are dealing with.
For example, the court may have accepted that the client did not dishonestly fail to report a change in circumstances - that may simply mean that the client’s alleged dishonesty has not been proved beyond reasonable doubt. It does not mean that there was a finding, beyond reasonable doubt, that the client DID report the change.
Recoverability of HB overpayments is far broader in any case - you need to show not that a person reported a change of circumstances, but that the overpayment arose out of official error and that the client could not reasonably have been expected to know that he was being overpaid. A person who reports a change correctly (and the “official error” angle is proved or accepted) but can reasonably be expected to know he is being overpaid, will still fail at tribunal.
You do of course have to bear in mind the different burdens of proof in civil and criminal matters. If someone is acquitted of a crime, it does not mean, as many defendants seem to think, that the court has exonerated them of all blame. It merely means that there is room for reasonable doubt as to whether they are guilty. Scottish law had and for all I know still has three verdicts available in criminal proceedings: guilty, not guilty and “not proven”. The last means, “We don’t think he is unambiguously innocent, but his guilt has not been clearly enough proved”. The verdict of “not guilty” then means “we believe he didn’t do it.” In English law “not guilty” covers both of the latter two Scottish verdicts (the nearest equivalent to Scottish “not guilty” is when a judge tells someone accused of a crime that “you leave the court without a stain upon your character” and orders the prosectuion to pay his legal costs.
Civil law, including Tribunals, operates on the “balance of probabilities”, which just means “more likely than not.” It is thus entirely possible for a court to find someone not guilty of fraud and a Tribunal to find that he has been overpaid benefit for failing to disclose something they are quite sure he knew he had to disclose.
The other way round is harder: if someone has been found guilty of an offence then it means (or ought to mean) that the case has been proved to a much higher degree of certainty than a Tribunal needs. But bear in mind that the wording of what needs to be proved in fraud cases is different from what has to be proved in overpayment cases. And the tribunal may find that, in spite of fraudulent intention by the claimant, there has actually been no overpayment because the non-disclosure, which the claimant though would have affected his benefit, in fact wouldn’t. This used to be what is known in criminal law as an impossible attempt but I’m fairly sure that has been overtaken by changes in legislation, so it can still be fraud even if it didn’t matter.
here’s a link to R(S) 2/80 -
As an add-on question, and not expecting a specific answer, but some pointers or others’ experiences on to what to expect may be helpful:
Client has large overpayment decisions (LTAHAW), and had IUC near the start of the year. Tribunal appeal hearing scheduled and now imminent, no indication of any criminal proceedings since the IUC. Client is concerned about how long we have to worry about pending criminal proceedings. Are criminal proceedings generally started before civil ones, or is there just no real correlation? Might a criminal case just be pending awaiting new findngs from the civil case? Is there any way of probing for info from DWP on whether they have dropped the fraud case? I understand that for some classes of criminal case the charges have to be brought within 12 months, but in more serious cases there is no time limit. I couldn’t say what sort of case, if any, might be brought against my client.
There are two offences under the Social Security Administration Act - s111A and s112, if memory serves the time-limits are detailed at s116. My experience (which is limited to only about a dozen) is that generally the fraud (criminal) side takes a while but the tribunal (civil) side seems to be held up so the criminal case ends up going first, often to the client’s detriment. This has been a topic of conversation on RN many times.
The allegation should have been put to your client at the IUC (e.g. misrep / FtD), once the fraud investigator has completed their investigations they make a recommendation to the fraud DM, at this point if it is a recommendation to prosecute the client is normally notified in writing. I have had clients wait a very long time for this and some who were never notified only finding out when they receive a summons.
I tend to call the fraud investigator and ask about the status… where are we at?
Edited for spelling (well it is the middle of the night!)
In my experience by no means all IUCs result in a prosecution. It seems to be standard practice in some areas to do an IUC to see if a prosecution looks like a possibility. This is particularly so in LTHAW scenarios.
Sovietleader - can R(S) 2/80 assist where the client has not convicted at Crown Court? I appreciate the other responses about looking carefully at the evidence.
Sovietleader - can R(S) 2/80 assist where the client has not convicted at Crown Court? I appreciate the other responses about looking carefully at the evidence.
The relevant part of the title of R(S) 2/80 was -
The clarmant was convicted by a magistrates’ court of 2 offences of making false
representations to obtain sickness benefit because he had worked as a casual
labourer. These offences related to periods which were within the period at issue.
Held that:—
1. The fact of the conviction should not be ignored and should have a
bearing on the case relating to benefit (para 13).
2. The inital onus in review proceedings must be on the insurance officer to
show that a conviction related to the benefit in Issue and the period in issue,
or part of that period (para 13).
3. Thereafter the effect of a conviction for an offence relating to that
benefit and that period, or part of that period, is to shift the onus on to the
claimant to show, on a balance of probability, that he is entitled to that
benefit (para 13).
So, as you can see, it doesn’t really cover the situation where a person is found “not guilty”, and as Ariadne pointed out earlier, this has a broad meaning - it would not mean necessarily, for example, that the court decision was that “x” and “y” were not living together as husband and wife.
That said, it is always worth mentioning the result of the court case. In the same way that the DWP will (correctly, in the light of R(S) 2/80) highlight the potential relevance of a “guilty” verdict, a tribunal should also be made aware of a “not guilty” verdict. What judges will make of that is very much down to the particular judge