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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

the effect of a conviction in subsequent Tribunal proceedings

 

grant
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welfare rights adviser sefton cab

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I seem to recall there is some case law from the UT on this issue. Scenario - client enters a guilty plea (following a plea bargain) in crown court proceedings under the Fraud Act of knowingly claiming tax credits as a single person when the claim should have joint. The matter subsequently comes before the Tribunal on appeal on the issue of whether client, as a married person, was separated in a manner which was likely to be permanent.
In essence does S11 of the Civil Evidence Act 1968 mean that we are bound by the conviction under “res judicata”. My initial view is that the conviction will be prima facie evidence only in the Tribunal proceedings and that it is still open to us to argue the facts of the relationship before the Tribunal. Can anyone help with authorities on this issue please?

     
Elliot Kent
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Shelter

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Your starting point is probably AM v SSWP [2013] UKUT 94 (AAC) and the various citations therein

     
Oldestrocker
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Principal, Forensic Accountants, Canterbury, Kent

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A similar case that I dealt with way back in times of the DHSS and Unemployment Benefit/Supplementary Benefit.

An accountant of excellent character decided to start off a new practice. He had a couple of clients that paid minimal fees once a year. He claimed the above benefits and networked with friends/relatives. After I believe 15 months of claiming these benefits he ceased the claims as he was then able to more or less earn a small regular income.
During the times when he had to ‘sign on’ he disclosed net earnings of approx. a few £‘s a week which was absolutely true.
Eventually after a further 2 year period he had a visit from the Fraud investigator for the DHSS as they believed he had been working and should not have been claiming. They could get nowhere with their investigation after speaking to neighbours and many business owners in the small town where he practiced.
They decided to involve the police which resulted in a 5am ‘raid’ on his home and searched both his home, office and car taking away all of his working files.
Following legal advice he was told to plead guilty at Crown Court and because of the length of time the fraud had continued and the amount involved (£12,000) he was sentenced to 6 months imprisonment, 5 months of which were suspended for 12 months.

Eventually he lodged an appeal against the demand by the DHSS for the recovery of that £12,000. The first hearing was adjourned for further evidence. At the second hearing he won the appeal and was able to prove evidentially that his net earnings for that 15 month period amounted to less than £4 a week on average.

The Commissioner was astounded that he had been found guilty at Crown Court and was advised that a guilty plea had been entered.

The result was that the ‘overpayment’ was reduced to nil, but in the meantime he could no longer practice and thus was unemployed again with little chance of finding similar employment in the future.

18 months later his body was found in a local wood where he had taken his own life leaving behind his young wife wife and twin girls aged 6

     
ClairemHodgson
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Solicitor, SC Law, Harrow

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which is why a tribunal should always have first bite of any such case, not the criminal courts.

criminal courts know nothing about benefits, and neither (with respect to them) do criminal lawyers (whether solicitors or bar) unless they have specific input from someone who does/have done relevant training/kept up with that.

     
HB Anorak
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benefits consultant/trainer, hbanorak.co.uk, east london

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Another useful case is Newcastle City Council v LW [2013] UKUT 0123 (AAC): if certain factual admissions have been made in criminal proceedings, the claimant may not “resile” from such admissions in a subsequent appeal.  But the Tribunal still has to be careful about the implications of the facts: it is possible to dishonestly conceal or misrepresent facts and thereby commit an offence, but on the true facts you might still have been entitled to benefit.

     
grant
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welfare rights adviser sefton cab

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Thank you all for your input. Absolutely Claire, unfortunately by the time this case came to us the criminal proceedings had been concluded. Oldestrocker - gutwrenching.