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Conviction in Magistrates Court for fail to notify change of circs and its effect on entitlement to DLA
I hope to apply for set aside for a complicated appeal which I recently repped. Background is that client is appointee for his wife who had been receiving hrc and lrm (learning dfics + some physical probs). She went out to work part time and client was eventually charged with failing to notify change of circumstances - he was convicted after trial in the Mags and did not appeal. At the DLA appeal I tried to argue that regardless of the conviction for failing to notify this did not necessarily mean that his wife had no entitlement whatsoever. No figures due by way of overpayment were mentioned in the indictment - the Judge at the DLA appeal commented in the SOR that it was ‘far more probable that the prosecution case was that the change of circumstances which should have been reported was such as to make it clear that Mrs X was not entitled to DLA at all…’. The Panel has clearly found that the Mags’ conviction supports the finding that his wife has no entitlement but no findings on her functional ability following the alleged change of circs have been made by either the DWP or the Panel. Does anyone know of any caselaw which might assist please?
working by itself is not enough to establish a change of circumstances (CSA 114/90) where claimant started work as a part-time supply teacher .With no findings on function they cannot have a change of circumstances.
In addition to Chris’ observation, it is open to argument that the true tests of entitlement were not considered by the Court and, further, the Court did not have jurisdiction to deal with entitlement. Trouble is, the Court of Appeal has recently ruled a Tribunal’s decision on entitlement (following a criminal conviction) was, to all intents and purposes, irrelevant - certainly for POCA purposes. Personally, I think it was wrongly decided and sincerely hope it is appealed to the Supreme Court.
Bad news Kevin - I can see no chance of appeal being pursued in that case. I know too little about criminal side to advise that client whether she should seek advice from another lawyer competent to puruse an appeal, or indeed who she could go to who would want to take that on at this stage. I went to tribunal with client on another issue and there is no indication that her previous legal team have any interest in pursuing it further
In addition to Chris’ observation, it is open to argument that the true tests of entitlement were not considered by the Court and, further, the Court did not have jurisdiction to deal with entitlement. Trouble is, the Court of Appeal has recently ruled a Tribunal’s decision on entitlement (following a criminal conviction) was, to all intents and purposes, irrelevant - certainly for POCA purposes. Personally, I think it was wrongly decided and sincerely hope it is appealed to the Supreme Court.
Do you have a reference for that particular decision?
Pete: it was a client of “sovietleader”. I happen to know the names of the parties involved but, so far, I haven’t seen a transcript of the judgement. A precis of the outcome was posted towards the latter part of the following thread:
http://www.rightsnet.org.uk/forums/viewthread/241
It’s really disappointing it isn’t going to be challenged because, as things stand, it effectively gives a positive incentive to the DWP and LAs to try and get FtTs heard AFTER criminal proceedings. In my view, based on what is known so far, the effect of the CA judgement is to take away any effective right of appeal to a FtT where criminal proceedings are heard first. Surely there is a HRA argument there? If there is, it seems it will have to be another case that takes on the challenge.
In short, as the law currently stands, it is now absolutely imperative that every effort is made to get FtT appeals heard before criminal proceedings take place - especially in cases involving alleged changes in circs affecting entitlement and/or overpayment cases.
I am probably repeating from other threads, but the following observation in CH/3744/2006 (see paras 13 & 14) by (then) Cmmr Mesher was made: “In my no doubt unrepresentative experience as a Commissioner, the standard of the 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.”
That observation was endorsed by Judge Whybrow at para 54 of MB v Royal Borough of Kensington & Chelsea (HB) [2011] UKUT 321 (AAC) (aka CH/0199/2010).
Based on my own dealings in cases of alleged benefit fraud, Cmmr Mesher’s experience is far from being unrepresentative. In fact, it is sadly all too common.
I absolutely agree Kevin - I have spoken to client today, who seems to have no idea whether her legal representatives are thinking of taking any further action.It was unfortunate at the very least that the original Court of Appeal panel included Judge Hickinbottam, who has great experience of Social Security matters (as a previous President of the Tribunal), but that hearing was cancelled by the Court, and then (as far as I can tell) three judges with no background or experience in social security law sat at the next hearing.
For now, we have to concentrate on getting the tribunal heard first
Brian
Hopefully okay to jump in on this one ... I have a similar case, an alleged overpayment of DLA from 2008 to early 20011 claim is that client failed to notify a change of circs as with help from work directions took up full time employment, tribunal has been adjourned as no medical evidence all decision based on Fraud investigation with DVD footage which I belive is not conclusive re clients disabilities.
Now waiting on EMP report client and self also getting evidence from GP and specialists.
I can`t find the decision referred to by Chris can I be directed to this, also worried that rep from department is going to come up with raft of decision re colluding Medics ... also employer willing to give statement /evidence… any one got an employer type questioner re disabled workers. New development , after implying not going to court 2 days after Tribunal DWP have indicated case being referred to PF.
Many thanks Helen
I can`t find the decision referred to by Chris can I be directed to this, .....
CSA/114/90: http://www.rightsnet.org.uk/pdfs/CSA_114_1990.pdf
Thanks Kevin
Helen
Helen
I cant help thinking that it is unlikely that the DWP would now rely on the fact ITSELF that someone had started to work as being the “relevant change of circumstances”. What is usually claimed is that mobility has improved and/or attention/supervision needs have reduced and that this is supported by what the client does when working.
Even if the DWP had simply cited starting work as the relevant change of circumstances, it is open to the tribunal to identify whether there has been some other change that is relevant, and even fairly limited video footage, as well as an expectation of what is involved in the work, could provide basis for examination of the supersession issue on a broader basis than that advanced by the DWP.
What did the client say about his/her care and mobility when DLA was awarded? Was there an EMP report or some other medical evidence to support that award? Are the mobility and care problems unchanged?
It may well be that, realistically, your client is not entitled to DLA, or the rate of DLA s/he is getting. It will then become a case of challenging the retrospective nature of the supersession decision - that has certainly been the situation here in similar cases to your own.
Brian
I usually use this at appeal and is still useful. It is taken from Decision Makers Exchange issue 78 August 2007:
PLPG have recently seen cases where it is apparent that DM’s have given the reason for removing entitlement to benefit as being because the customer is working and that the work they do is incompatible with the entitlement conditions for DLA. This is unacceptable, DLA is an “in work” benefit.
If we are considering removing entitlement to benefit from customers, we must have very clear grounds for supersession or revision. It is not sufficient to say that the customer works as a lorry driver and has to get in and out of his cab, or that she works on a Fruit and Veg stall in the market. If we are disallowing eg HR Mob, then we need to show that the person is not virtually unable to walk. We will need evidence showing how far they can walk before the onset of severe discomfort, how they walk i.e. balance, gait etc. Simply getting in and out of a cab, standing to serve customers etc is not a test of walking ability.
As one criteria for entitlement to DLA refers to help required “throughout the period as a whole”, it is also necessary to consider if the evidence shows good and bad days. i.e. do the observations, witness statements, interview under caution etc show a sufficient time span to prove that the activities engaged in and the ability shown within those activities are not simply a one off on a good day, or after pain relieving medication has been taken.
It should be remembered that many of these cases may go to appeal and if we have not proved that there has been a change of circumstances or what fact the awarding DM was mistaken as to or ignorant of, then the tribunal is likely to simply reinstate the benefit. As it is the Secretary of State who is instigating the supersession it is for the Secretary of State to prove the case and the current needs, not the customer.
If the evidence presented by the Fraud Investigation Service (FIS) does not relate to the entitlement criteria for benefit or it is unclear if it does then current instructions are that file should be referred back to OIU who will refer back to FIS to see if any more information can be obtained.
We have also seen cases where DM’s have revised earlier decisions where the previous evidence has been correctly destroyed in line with Document Retention Policy. The onus is on the DM to show that the decision was incorrect or that there had been a change of circumstances. If the docs relating to the period during which entitlement is now being reduced or removed are not available you must ensure that you have sufficient information to support your decision.
Andy give me a call on 01642 729241 and let me have your email and i will send you a copy. If i am out and admin answer just leave the email with them. I am not sure how to attach it on rightsnet.
regards
Hi all, many thanks for the guidance so far , an initial appeal was heard in December and adjourned for further evidence EMP report in particular, also been given a full morning slot.
I am looking for any advice/ info on the procedure regarding interviews under caution, the questions put to the client are somtimes irrelevant and as the interview goes on I get more than a hint of exaccerbation from the client to where laterly he uses some bad language this does not present well but I think he was driven to this.
I cant get my head round the authority these Fraud officers have with regards such interviews, in this instances they were interviwing some with a chronic medical problem who is on strong meds, does anyone know what the protocal is?
regards Helen
Interviews under caution by the DWP are conducted under the procedure laid down in the Police and Criminal Evidence Act 1984. The guidance is laid out in Code of Practice C; here.
Thanks Nev, Iam looking for the decision CA/1481/03 help
Regards Helen