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Overpayment Appeal

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Dave BCFU
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Hi

Not sure where to go from here with one of our clients - any suggestions welcome.

Our client has been found guilty of fraud as she did not declare she was a signatory on her parent’s bank account (this was in case of emergency if anything happened to them) and DWP claimed she had access to £85,000 (they used evidence from her estranged brother).

She appealed the decision in 2018 which the Judge did not overturn the DWP’s decision and she was told to pay back an overpayment of £23,137.44. A subsequent complaint was made against the Judge’s action and he was reprimanded for his actions.

Nothing happened until she started claiming Pension Credit which the DWP are now deducting £45 from her Pension Credit - she does not want to pay this back and she is still adamant she did nothing wrong.

Is there anything we can do at this stage given that it went to appeal which was over 2 years ago?

Thanks

Adam

Elliot Kent
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In a word, no.

The fact that your client says the judge was “reprimanded” for something isn’t directly relevant to anything. The DWP made its decision and the Tribunal upheld it. If she disagrees with the Tribunal’s decision, the options are either requesting it be set aside and/or requesting an SOR and attempting to pursue the appeal to the UT.

The deadlines for these requests are all one month but can be extended. In theory there is no upper limit to the length of a time extension so that your client would not be precluded from making the relevant request even now, but the Judge would need to be persuaded to extend time which is likely a tall order.

Your client may not like the result but, subject to the ordinary appeals processes, she is stuck with it.

The ordinary debt options of e.g. requesting payments be reduced or requesting the debt be written off remain.

nevip
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For clarification, precisely what do you mean by “found guilty of fraud”?

Mike Hughes
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Have to say this is ringing alarm bells for me and I have opened up cases exactly like this. Regardless of time limits it’s amazing what a complaint can do when it introduces a certain level of discomfort.

As nevip asks, do we really mean found guilty of fraud, or, do we actually mean accused of fraud and persuaded to take an administrative penalty? Very different and I would not at all be surprised if it was the latter.

Elliot Kent
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Mike Hughes - 18 November 2020 12:59 PM

As nevip asks, do we really mean found guilty of fraud, or, do we actually mean accused of fraud and persuaded to take an administrative penalty?

FWIW I read it as an imprecise reference to the overpayment process generally, given that the recovery rate sounds well below fraud rates. But it would be helpful to know.

Might also be good to know what the complaint was about and when the resolution was. If the complaint demonstrated bias or some other issue with the decision, then I can see that might be worth running although I would expect to have a much easier time with this if you lodged the application shortly after the complaint coming in.

Va1der
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Out of curiosity, is it possible to treat a complaint as a request for permission to appeal - or to effectively say that the appellant was trying to take the appeal further, but had misunderstood the process, and base a late request on this?

Seems reasonable to me, if the complaint was against something that was relevant to the decision, rather than just the conduct of the judge etc.

If there were no action to recover from DWP until they claimed PC now, they might have though the issue had been resolved in 2018, and not seen a reason to take the “complaint” any furhter.

Dave BCFU
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Mike Hughes - 18 November 2020 12:59 PM

Have to say this is ringing alarm bells for me and I have opened up cases exactly like this. Regardless of time limits it’s amazing what a complaint can do when it introduces a certain level of discomfort.

As nevip asks, do we really mean found guilty of fraud, or, do we actually mean accused of fraud and persuaded to take an administrative penalty? Very different and I would not at all be surprised if it was the latter.

She wasn’t very clear but it does sound like the latter.

Dave BCFU
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Elliot Kent - 18 November 2020 01:20 PM
Mike Hughes - 18 November 2020 12:59 PM

As nevip asks, do we really mean found guilty of fraud, or, do we actually mean accused of fraud and persuaded to take an administrative penalty?

FWIW I read it as an imprecise reference to the overpayment process generally, given that the recovery rate sounds well below fraud rates. But it would be helpful to know.

Might also be good to know what the complaint was about and when the resolution was. If the complaint demonstrated bias or some other issue with the decision, then I can see that might be worth running although I would expect to have a much easier time with this if you lodged the application shortly after the complaint coming in.

My apologies for the wrong use of terminology - I’m a new adviser so this is the first overpayment which has gone this far.

The complaint against the Judge, I believe was regarding the judge’s conduct - he called her “a complete liar” but unfortunately I have no letters or documents regarding this.

Mike Hughes
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I’ve had a few cases like this. Well out of time on all fronts. Deductions started including admin. penalties etc.

One example - I simply requested a transcript of the IUC from the archive. DWP/LA were perversely proud of their work and so literally walked it across to me. It revealed multiple issues. Schizophrenic alcoholic told his Mum couldn’t act as an appropriate adult and therefore had to be silent during the IUC; specific answers which showed the claimant did not know the capital limits or their impact. DWP and LAs are very sensitive to any accusations that they have breached PACE.

Damningly there was no question within the IUC about whether the claimant had accrued their capital through working - probably the single most obvious question to have asked. Incredibly hard to justify not doing so. That then chimed with Mum’s version, which was that outside the IUC and off the record she and her son were asked about when and where he’d been working on the side and she had to point out that the nature of his ill health meant he had never worked a day in his life and lived as a recluse in an attic. The health and employment record was clearly news to DWP so of course they panicked and didn’t ask the question in the IUC. Totally did for them.

On the back of that I lodged a complaint along the lines that there was no basis for an admin penalty because not only was there no evidence of fraud there was explicit evidence pointing in the opposite direction. Also cited the above conversation in full and the obvious PACE breach. DWP took legal advice and mysteriously found a way to supersede their own decision (not really that hard) on the basis of mistake/ignorance as to material facts. Five figure overpayment plus admin. penalties wiped out; all payments made were returned to the claimant and an apology put in writing.

I think, in total, I have done this on three occasions. All as above. Way out of time. So, I would be very interested to know if there was an actual fraud here.

[ Edited: 18 Nov 2020 at 01:53 pm by Mike Hughes ]
Elliot Kent
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Dave BCFU - 18 November 2020 01:43 PM

My apologies for the wrong use of terminology - I’m a new adviser so this is the first overpayment which has gone this far.

The complaint against the Judge, I believe was regarding the judge’s conduct - he called her “a complete liar” but unfortunately I have no letters or documents regarding this.

The first thing I would say is that this probably isn’t a great case to be dealing with as a ‘new adviser’ and I would be looking to see if there is someone you can refer it to.

It’s important to note that there is a separation between the criminal processes and the decision making in relation to overpayments. Whilst it would be helpful to check, it doesn’t sound to me that your client has actually been ‘found guilty of fraud’ as the maximum deduction for a non-fraud overpayment is £11.25 per week and your client is getting £45 deducted from her 4-weekly pension credit. If an adpen or conviction were on record, the higher fraud rate would likely be used.

The example above is of a situation where DWP were prepared to conduct an ‘any time’ revision of their overpayment decision because of a flawed investigation and questions about the mental ability of the individual involved to understand capital rules (which goes to whether the overpayment is recoverable). It sounds like in your case the question was really about whether the money which sat in a bank account with her name on it was actually hers or whether her explanation that her name was only on it for emergency purposes and she didn’t actually own it was correct. On the face of it, it was a binary decision for the judge whether to accept or reject that explanation. It’s hard to see how any defect in the DWP investigation could have had any relevance to the result as it would have been for your client to prove her explanation.

I think there is a scenario where this is worth pursuing which is if there is fairly concrete evidence that the investigating judge or the JCIO has accepted as a fact that the Judge called your client a “complete liar” AND that this was done at some point before the decision was made. If the Judge called your client a liar after making the decision, then that is rude but doesn’t really impinge the decision itself. If the Judge called your client a ‘complete liar’ before the decision was made then there may yet be a reasonable case for a set aside on the grounds of bias. I would not dare make this argument unless you have actual paperwork in hand as to the resolution of the complaint.

[ Edited: 18 Nov 2020 at 02:56 pm by Elliot Kent ]
nevip
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Mike and Eliot have covered the substantive issues so I’m not going to waste your time going over them again.  I’m interested in the comments from your client that you’ve highlighted in inverted commas.  The first, “found guilty of fraud” has been adequately addressed so I’ll leave that there.  The second, the judge called her “a complete liar” cannot go unremarked upon further.

Clients who freely toss such statements around like ‘legal’ hand grenades, are in my experience, often trying to start fires which they believe will burn the opponent’s case to the ground.  I’ve lost count (as I’m sure others have) of the times clients have accused medical assessors, for example, of outright lying when often the truth is a lot more nuanced than that.

I’m not saying the judge didn’t call her “a complete liar” (verbatim) as I wasn’t there (I don’t know your client and in no way do I wish to pre-judge her, particularly from a distance).  Most of us have occasionally seen judges indulge in questionable behaviour.  But to downright slander a claimant to her face, in such stark terms in an open forum, whatever else it obviously is, seems to me a mark of such sheer recklessness as would lead me to question the judge’s sanity.

Mike Hughes
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Twas but one example Elliot. The other two I have are far closer to the facts of this case as much as we know them so far. I think the general principle is that there is sometimes a way of opening up obvious injustices outside of time limits provided you can get all your ducks in a row.

Have to also agree with nevip here. I read the word “liar” and immediately thought sarcastically “yes, I’m sure they did.”. The talk of a complaint being upheld is also a bit sketchy. Some judges are quick to go down the “lacking evidential credibility” route and even to say so. They are most often wrong. However, to call someone a liar is extraordinarily stupid and strikes me as unlikely.

There is much to look at here really. We could argue it til the cows come home but I’m not sure I buy into the “needs an experienced adviser” angle. Most of us learnt on the job and the key skills include access to resources and knowing when you need to ask questions. By all means enlist the support of an experienced adviser but you’ve already recognised that you needed support so…

Dave BCFU
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Elliot Kent - 18 November 2020 02:50 PM
Dave BCFU - 18 November 2020 01:43 PM

My apologies for the wrong use of terminology - I’m a new adviser so this is the first overpayment which has gone this far.

The complaint against the Judge, I believe was regarding the judge’s conduct - he called her “a complete liar” but unfortunately I have no letters or documents regarding this.

The first thing I would say is that this probably isn’t a great case to be dealing with as a ‘new adviser’ and I would be looking to see if there is someone you can refer it to.

It’s important to note that there is a separation between the criminal processes and the decision making in relation to overpayments. Whilst it would be helpful to check, it doesn’t sound to me that your client has actually been ‘found guilty of fraud’ as the maximum deduction for a non-fraud overpayment is £11.25 per week and your client is getting £45 deducted from her 4-weekly pension credit. If an adpen or conviction were on record, the higher fraud rate would likely be used.

The example above is of a situation where DWP were prepared to conduct an ‘any time’ revision of their overpayment decision because of a flawed investigation and questions about the mental ability of the individual involved to understand capital rules (which goes to whether the overpayment is recoverable). It sounds like in your case the question was really about whether the money which sat in a bank account with her name on it was actually hers or whether her explanation that her name was only on it for emergency purposes and she didn’t actually own it was correct. On the face of it, it was a binary decision for the judge whether to accept or reject that explanation. It’s hard to see how any defect in the DWP investigation could have had any relevance to the result as it would have been for your client to prove her explanation.

I think there is a scenario where this is worth pursuing which is if there is fairly concrete evidence that the investigating judge or the JCIO has accepted as a fact that the Judge called your client a “complete liar” AND that this was done at some point before the decision was made. If the Judge called your client a liar after making the decision, then that is rude but doesn’t really impinge the decision itself. If the Judge called your client a ‘complete liar’ before the decision was made then there may yet be a reasonable case for a set aside on the grounds of bias. I would not dare make this argument unless you have actual paperwork in hand as to the resolution of the complaint.

Thank you for the advice it’s really helpful.

I would love to refer to an experienced adviser but unfortunately where I’m based (Blackpool) we don’t have anyone to help our charity as it’s only a small charity and other outside charities let our clients down.

Dave BCFU
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nevip - 18 November 2020 03:17 PM

Mike and Eliot have covered the substantive issues so I’m not going to waste your time going over them again.  I’m interested in the comments from your client that you’ve highlighted in inverted commas.  The first, “found guilty of fraud” has been adequately addressed so I’ll leave that there.  The second, the judge called her “a complete liar” cannot go unremarked upon further.

Clients who freely toss such statements around like ‘legal’ hand grenades, are in my experience, often trying to start fires which they believe will burn the opponent’s case to the ground.  I’ve lost count (as I’m sure others have) of the times clients have accused medical assessors, for example, of outright lying when often the truth is a lot more nuanced than that.

I’m not saying the judge didn’t call her “a complete liar” (verbatim) as I wasn’t there (I don’t know your client and in no way do I wish to pre-judge her, particularly from a distance).  Most of us have occasionally seen judges indulge in questionable behaviour.  But to downright slander a claimant to her face, in such stark terms in an open forum, whatever else it obviously is, seems to me a mark of such sheer recklessness as would lead me to question the judge’s sanity.

I completely understand the issues with the Judge stating that, unfortunately I have no paperwork from the complaint - if I’m being totally honest, I’m not entirely sure she’s telling me the whole truth which is why I’ve asked for advice before we take on the case.

I think the fraud element was a mistake in terminology on my part which caused the confusion.

Dave BCFU
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Mike Hughes - 18 November 2020 03:40 PM

Twas but one example Elliot. The other two I have are far closer to the facts of this case as much as we know them so far. I think the general principle is that there is sometimes a way of opening up obvious injustices outside of time limits provided you can get all your ducks in a row.

Have to also agree with nevip here. I read the word “liar” and immediately thought sarcastically “yes, I’m sure they did.”. The talk of a complaint being upheld is also a bit sketchy. Some judges are quick to go down the “lacking evidential credibility” route and even to say so. They are most often wrong. However, to call someone a liar is extraordinarily stupid and strikes me as unlikely.

There is much to look at here really. We could argue it til the cows come home but I’m not sure I buy into the “needs an experienced adviser” angle. Most of us learnt on the job and the key skills include access to resources and knowing when you need to ask questions. By all means enlist the support of an experienced adviser but you’ve already recognised that you needed support so…

As I’ve said in response to the Elliot and Nevip, I would love to refer this one on but unfortunately our charity is small and we have very little help from other organisations (we and our clients have been let down by our local CAB as well as local legal aid solicitors). Thank you for the vote of confidence - I did come on to here to help me decide what my next steps are and if I think we should take it on (without more evidence from my client, I don’t think its feasible).

I was very dubious with the word liar also as you said its unlikely that a Judge would say it (at least bluntly anyway).

nevip
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Trust your instinct Dave and do what you feel is right.  These kinds of cases in your early days are those you learn a lot from.  And, don’t be afraid to make an honest mistake.