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Fraud case out of time for benefit appeal.
I’ve been asked to have a look at a big fraud case going back over a number of different benefits for some years. The case has been dragging on but is soon to get to court. The disallowance decisions, on which much of the case is based, were made a couple of years ago and not appealed. On a quick look, I can see acouple of arguments that could have been used at tribunal but I can’t see how to challenge the decisions.
Any ideas?
Depending on the circumstances, it might still be possible to deal with this by any time revision or by one of the supersession grounds which has no time limit (e.g. SMI).
Otherwise, I can only see that you could pursue an argument either if (a) there was some failure of notification which means that timescales haven’t started to run or (b) it would be a human rights breach on the particular facts of the case for the 13 month absolute time limit to be applied.
So doesn’t look great.
I would imagine that it would be useful for those acting on the criminal side to be aware if there was some genuinely arguable question of entitlement involved in the case?
I’ve had two cases I can recall on this exact issue. One of them remains live. In the first an any time revision opened it all up with little difficulty via them foolishly providing me with a transcript of an IUC that was a comedy of errors. Issue was about 3 years old and went back years. 5 figure o/p wiped and along with all admin. penalties. Fraud case fell to pieces. In the second, still live, case DWP are struggling to grasp that an any time revision is what they need to do albeit that the complaints team have their head around it.
If one of the benefits is HB and there is an overpayment you could try putting a request in for underlying entitlement to be considered and then arguing that any decision that there is no U/E is a new one with fresh appeal rights.
That route if it worked could only wipe off or reduce the o/p though, it couldn’t result in an underpayment or ongoing entitlement past the end of the claim.
I’ve done expert witness reports in nearly 200 benefit fraud prosecutions. I have stopped doing them now as I now only work part time. but, in 95% of those cases the OPs were wrong, often magnificently so.
Usually basic official errors like failure to do underlying entitlement in HB (LAs have been told ad nauseam by DWP and it’s in all the guidance, so why do they continue?), failure to properly assess earnings, failure to do diminution of capital calculations, failure to disregard capital and/or income which should clearly be disregarded, failure to assessing living together cases in accordance with the case -law (especially relationship stability and intentions). The list just goes on and on and even in cases of the clearest dishonesty by the defendant.
The chances are that the issues you have spotted are official errors and an any-time revision is the route to go down. Failure by DWP and/or LA to deal with that properly also won’t impress the judge. In one memorable case, the DMs were asked to attend Court and refused as it wasn’t in their job description which went down like a pile of poo with the court.
I have also found that the CPS and the fraud investigators frequently fail to pass on concerns about possible errors in OPs and entitlement which are brought to their attention by defence lawyers and they also routinely fail to even mention notional entitlement as a mitigation point o the court or the defence, so don’t rely on the defence lawyers to deal with benefit issues. There can also be problems with revision requests not being passed to the specialist decision makers of sent via the normal Benefit Centre. Defence lawyers routinely fail to get clients to submit MRs and appeals, failing to completely appreciate the significance of them for both mitigation and the alleged offence itself.
On the positive side, generally I have found the DMs in the specialist fraud benefit decision making teams at Merthyr Tydfil and Sterling to be quite open to a discussion in straightforward cases or where a conversation would clarify points, though that may partly be because I got to know some of them over the years.
I agree entirely with you and brings to mind a case that I had mentioned on here some time ago.
A ‘working and claiming’ fraud case went to Crown Court. A 40 year old guy of previous good character had started up a small business and continued to claim benefits. His legal advisor suggested that to get a reduced sentence he should plead guilty. He was sentenced to 6 months imprisonment, 5 of which suspended for 12 months. He spent two weeks in Strangeways Prison, Manchester. It was said that he had claimed £12,000 Unemployment Benefit.
He had previously lodged an appeal against the overpayment claim which eventually following his release ended up at the Commissioners.
They found that the DWP had totally and incorrectly calculated the overpayment. The result was that there was no overpayment!
The Commissioner asked one question - ‘what on earth were you thinking of when you pleased guilty?’
I’ve had some successes in the past by arguing that as the decision was not properly notified, in terns, the time limit had not started to run so the appeal was not late.
Regina v Secretary of State for the Home Department and another (Respondents) ex parte Anufrijeva (FC) (Appellant) [2003] UKHL 36
Paragraph 26 - Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system: Raymond v Honey [1983] 1 AC 1, 10G per Lord Wilberforce; R v Secretary of State for the Home Department, Ex p Leech, [1994] QB 198, 209D; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115.
Cited in SM v SSWP (SPC)
[2017] UKUT 336 (AAC) https://assets.publishing.service.gov.uk/media/599d4fd4e5274a28b5790959/CPC_3137_2016-00.pdf
More recently I argued this in an overpayment case (claimant was in court some time ago, accused of fraud, found not guilty, came to us later and basically we appealed against a reconsideration decision which he said he had never received). The Tribunals Service asked for a submission, i did it and was not over-optimistic but then the DWP did an MR, which the claimant could then appeal in time.
No idea what the outcome will be but it is interesting.
Incidentally - I agree with Neil. It’s unusual not to find some sort of error.
Similar but not the same:
I have a client currently appealing an ESA and HB overpayment for a period he says he was living as a single person but the local authority and DWP say he was living with a partner. Tribunal date has been adjourned a few times, one to combine the cases, a second time because there was no Secretary of State letter for the DWP rep or it was unread and no rep from local authority. Whilst we have been waiting for a further Tribunal date the client has been made aware that the CPS are pursuing a fraud case against him for the period of the overpayment. His next CPS court date has been given but there’s still been no new Tribunal date.
Does anyone know if it is usual for CPS to bring charges before a Tribunal appeal has been fully heard?
There are probably a few threads going back years on Rightsnet - I’ve contributed to a couple. The answer is “yes”, it is very common for a criminal case to proceed and be heard before the benefit/tax credit case can get to a substantive hearing
Does anyone know if it is usual for CPS to bring charges before a Tribunal appeal has been fully heard?
Absolutely yes! It is more common than you would have believe.
Many cases end up at a FTT after the claimant has been released from prison.
In cases of this nature be fully aware that a guilty plea and conviction will still stand even though months down the line when it is found that there was no case to answer at a FTT