guilty plea in criminal case before Tribunal hearing in LTAHAW case

Urgent query for hearing tomorrow. Client had £65K LTAHAW overpayment, IS and HB. 2 years LTAHAW, about 24K, was admitted, to HB and IS, shortly after IUC (which she ‘no commented’). I felt perfectly good case on facts for non-admitted period, and little evidence from their side. Witness statements and evidence all prepared for benefit appeal.

Back at work today to find that client had criminal case last Thursday. Barrister then browbeat her into guilty plea for whole amount (“3 years if you plead not guilty and convicted”). Admission and witness statements not before criminal court. We weren’t informed or consulted despite requesting consultation with solicitors.

Partner can attend benefit appeal tomorrow. 2 questions for anyone with relevant experience:
1. any experience/ caselaw/ thoughts about persuading Tribunal tomorrow to look behind guilty plea and reach independent decision on facts - in principle at least: obviously there will be practical difficulty as claimant won’t be there. I just want to persuade the Tribunal that a hasty, badly advised guilty plea is not conclusive for the facts the Tribunal has to determine;
2. any experience/ caselaw/ thoughts about challenging conviction. Not that we’ll be doing it but is the guilty plea fatal here?

Richard Atkinson

Blimey!  Conviction AND no attendance by the clmt.  Otherwise, easy-peasy….

Sticking with the Tribunal, you have an uphill battle on the narrow issue of LT.  However, howabout the quantum of the overpayments?  Did the DWP assess whether there was entitlement in any case (LT is, in itself, not sufficient to end IS - R(IS) 13/05 (para 15))?  Did the LA end HB/CTB on the sole basis that IS had ended (this being completely unlawful - see CH/3736/2006 (para 22))?

For the LT, my approach would be very simply “I know the conviction looks bad, but I would ask the Tribunal to consider this very carefully as there is substantial and relevant evidence not considered by the Court.  Further, it is my personal opinion that my client was poorly advised by her legal representatives”.  Give all the info set out in your post.

For the OP aspect, I think you can afford to take the usual robust stance.  DWP/LA notifications in order?  Requests by DWP/LA for info properly made (if at all)?  Procedural errors?  And so on.

I think you would be in a stronger position if (genuine) consideration was being given appealing the conviction - will that stance change?

As for distinguishing between criminal and Tribunal proceedings, CH/1220/2005 may be worth looking along with the related criminal AND civil court cases - the “Mote” set of cases).  A search on Rightsnet should produce some older threads on this (don’t forget the archive).

As an aside, you are not the only one who has been subject to being ignored and side-stepped by solicitors / barristers in criminal cases.  Hugely frustrating and, in a case I was involved with, potentially very damaging to the defendant.  C’est la vie.

Hope the above at least points in the right direction.

Cheers, Kevin. Will check out the ‘Mote’ cases again - unprepossessing facts as I remember. No real prospects of appeal against conviction as client admitted cohab for two years. Notional CTC was offset for sentencing purposes, leaving a notional 33K but that still leaves a 65K overpayment to repay. It was the sentence that got me - 8 months. Don’t believe that would have been justified on the true facts if established by the Tribunal. Apparently the barrister advised a suspended sentence was possible if she pleaded guilty but the judge wanted to make an example. According to client’s partner judge and counsel both made reference to the concept of a ‘common law’ household. What that is I don’t know but, if correctly reported, they were clearly trespassing on the Tribunal’s jurisdiction. Will have to be an adjournment request tomorrow anyway.

Richard Atkinson

One just despairs at the inability of too many otherwise intelligent criminal lawyers to understand the basics of social security law when dealing with benefit fraud cases.  Undoubtedly the move to fixed fees has made this worse by encouraging them to cut corners. 

The criminal courts have neither the jurisdiction nor expertise in benefits issues.  This is just not their role which is why we have specialist Tribunals and why usually the Tribunal should be heard first.

I wonder if this was the same barrister who said something similar to one of my clients in your region when she had a strongly arguable case that she was not LT, I also wonder whether your client’s solicitors were the same ones who told another client she should plead guilty to an offence involving non-declaration of capital which DWP later agreed she did not beneficially own and they discontinued prosecution after she (thankfully) went to another firm of solicitors.

Favourite quote (also useful for your case): Mesher in CH/3744/2006 (at para 14): “In my no doubt unrepresentative experience as a Commissioner, the standard of examination of questions of true entitlement to benefit in criminal prosecutions is often woeful, so that claimants with some kind of case will often be better off getting the expert evaluation of an appeal tribunal.”

Also have a look at the following:  R(S) 10/79 - commissioner disregards conviction, R(S) 2/80 - conviction only relevant for period of conviction (OP may be for a longer period?) and if it is for the same period entitlement can still be argued but burden shifts to appellant, CH/1820/2006 para 8: Distinctiveness of criminal proceeds and these do not bind a Tribunal.

[Favourite quote (also useful for your case): Mesher in CH/3744/2006 (at para 14): “In my no doubt unrepresentative experience as a Commissioner, the standard of examination of questions of true entitlement to benefit in criminal prosecutions is often woeful, so that claimants with some kind of case will often be better off getting the expert evaluation of an appeal tribunal.”

Neil

Have you got a copy of this decision - I can’t find it anywhere - as I have a case next week where there is a mix of guilty and not guilty verdicts

Thanks

Brian

it is on rightsnet at http://www.rightsnet.org.uk/?ACT=39&fid=8&aid=24_l26twmPy0tjZdXFSGn4P&board_id=1

Thanks Chris - my search skills clearly inadequate

Brian

Quote from experienced Tribunal chair back in the days of three-man tribunals to the effect that “you get a barrister at a Tribunal, they see three people across the table and think they’re in the Court of Appeal.”
That means (a) they expect to have half a day for introducing their case and another for summing up…and (b) they start arguing from fundamental legal principles without knowing anything at all about benefits law. Solicitors are usually not much better.
I used to be a solicitor so I’m allowed to be rude to them!

Kaspen - 01 September 2010 10:37 AM

It is interesting that when you bring these examples up at consultation meetings between DWP and external or partnership organisations, there is a general view that this should not be the case, that entitlement (or not) as the case maybe, should always be established before any further action is taken. So where is it all going so very very wrong ?

have they put anything in writing to that effect, by any chance?
a

and my ongoing thread
http://www.rightsnet.org.uk/forums/viewthread/241/

is in point as well… (but ariadne, i don’t go in as if it’s the CofA. :-) )