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tribunal or mags - here we go again!

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ClaireHodgson
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you’ll all remember this thread in the archived forum:

http://www.rightsnet.org.uk/forum-archive/index8929.html

they’re trying it again, in a different case - this time without the intervention of an abortive tribunal hearing!

gah!

ClaireHodgson
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Thanks Tony - a fax went to TAS citing, inter alia, Mote to them (and I’ve now saved the entire letter in my benefits folder so i don;t have to hunt for it if needed in the future!)

but my client hasn’t been charged .. hopefully, as with the last, he won’t be!

ClaireHodgson
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R(H) 01/07, paragraph 34
CH/1820/2006 (p 18)
CH/2047/2007 (p18)
CH/1220/2005 (paras 22 & 31) (Mote v Secretary of State, Mote v R)


and used that Mesher quote as well.

and asked for a statement of reasons if they aren’t minded to change directions, and also asked in advance for leave to appeal to UT.

Kev@derbys
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I ask myself: “How it is that someone can be found guilty under the Social Security Administration Act 1992 section 111 – 112 by not taking into consideration the rest of the Act (i.e. section 71) and regulations?”

Prosecutions are mostly under Sections 111 – 112 so:

•  Section 111A ) 1 If a person dishonestly c)  fails to notify a change of circumstances which ‘regulations under this Act’ require him to notify

•  Section 112(1A) if a person without reasonable excuse – a) fails to notify a change of circumstances which ‘regulations under this Act’ require him to notify

If the court does not look at Section 71 or ‘regulations under this Act’, then how does it find someone guilty?

If the person who is not the person, who fraudulently or otherwise misrepresented or failed to disclose a material fact, which resulted in overpayment of benefit, under the Social Security Administration Act 1992 section 71, why am I puzzled to find that he did misrepresent under the Social Security Administration Act 1992 section 112 (same Act)?

I think the debate will go on.

ClaireHodgson
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response to my submissions is a letter to client (not to me, yet!) asking that i send copies of cases cited ...

ClaireHodgson
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Claire Hodgson - 05 August 2010 12:03 PM

CH/1820/2006 (p 18)
CH/2047/2007 (p18)

anyone got copies of these two please?

ClaireHodgson
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Claire Hodgson - 02 September 2010 12:44 PM
Claire Hodgson - 05 August 2010 12:03 PM

CH/1820/2006 (p 18)
CH/2047/2007 (p18)

anyone got copies of these two please?

ignore me - i knew i had them somewhere!  have found them

ClaireHodgson
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all those cases - ignored /distinguished by tirbunal judge, i’m off to UT on this one

ClaireHodgson
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Tony Bowman - 22 September 2010 04:59 PM

In the context of how this discussion started that would mean the tribunal has adjourned pending the criminal proceedings…?

Yup - and considering in their tribunal submissions the DWP appear to concede client is in significant discomfort…see this thread:
http://www.rightsnet.org.uk/forums/viewthread/141/

Tony Bowman - 22 September 2010 04:59 PM

Is that appealable to the UT?

looked it up last year for my previous case - yes, as it’s not a decision that’s NOT appealable…

ClaireHodgson
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Tony, client hasn’t been charged yet!

i am bouncing off walls… need to calm down before i write to tribunal for leave to appeal (quoting chapter and verse on why i can,no doubt! and quoting form my submissions which quote that line from the DWP’s submissions…)

just wish i could ask for my client’s costs once i’ve sorted out all this grief!

ClaireHodgson
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Tony Bowman - 22 September 2010 05:14 PM

You must be furious Claire.


Maybe they could argue for adjournment in the criminal court pending resolution of the entitlement issue? That will put the TTS in a quandary…

actually, thank you, i’ll put that point to TAS when i apply for leave to appeal - that i will be advising client’s criminal solicitors to do precisely that!

ClaireHodgson
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Actually - appeal or judicial review? Rereading the relevant sections of the Act this morning, i’m not at all sure…. it is possible to overthink these things, of course!

ClaireHodgson
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Tony Bowman - 23 September 2010 08:13 AM

Good morning, Claire.

I don’t get it. If the client hasn’t been charged, what exactly is that the tribunal have adjourned for…?

it’s because the DWP have said it has been referred for prosecution - tribunal won’t do anything until that concluded…

 

Tony Bowman - 23 September 2010 08:13 AM

My first thought was JR, but I’ve never had cause to look at JR and the UT so afraid I can’t offer up anything in that resepct.

Tony

the Act could be read as if either appeal or JR, so i’ve emailed UT this morning for their guidance…..either way, will tell TAS i’m off to UT!

ClaireHodgson
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Thanks Dan.

spoke to UT this morning re copy of the JR form they have (web link being down for the Word version..).

Have written to TAS giving them one last chance before JR, made Tony’s point re stay of any criminal proceedings pending tribunal, that will hopefully give them pause….

whilst of course i want this stay removed, at the same time i think we’d all be glad of a lead case giving UT/CA the opportunity to confirm for the avoidance of doubt, as the only issue in the case, that tribunal comes first!  mind, if it gets that far i’ll be looking to some barrister doing it pro bono!

chrislpl
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Dear Claire,

Interesting thread, once again. It’s not really been an issue here in Liverpool, at the Appeals Service have actually expedited cases we have had so that the Magistrates and Crown Court have had the benefit of their decision when judging the criminal cases. This has included a couple of Crown Court Judges specifically adjourning the criminal case pending the outcome of the benefit appeal. However, it was something I thought about before practical experience showed it wasn’t necessary up here.

I don’t think that you need to ask a barrister to do the case pro bono. The commentary in Sweet & Maxwell to Section 15 TCEA 2007 specifically states that “an application to the UT for a mandatory judgement might be sought if it was claimed that a tribunal had failed or refused to make a decision.” As was mentioned earlier, whether or not criminal proceedings are pursued by DWP (or local authority) is irrelevant to the overiding objective in Rule 2 (and especially 2(2)(e) regrding avoiding delay. R v Mote confirms that the Tribunal proceeding to judgement has no material effect upon criminal proceedings. This should provide sufficient grounds for you to apply for an emergency Community Legal Services Funding Certificate for Counsel’s advice on merits. If it was before the High Court, you could get a CLS Funding Certificate - this is still a Judicial Review case whether it is before the Upper Tribunal or the High Court. You would have to get Counsel’s advice on merits anyway to get a substantive CLS Funding Certificate. As this is potentially a case that effects both appeal tribunal and criminal courts administration and is, therefore, of significant general importance, it may be worth while asking junior Councel whether or not QC should be instructed, as part of their advice on merits. I have obtained CLSF Certificates for JR before and would be happy to provide any pointers, although I doubt you need them.

By the way, if you have copies of CH/1820/2006 and CH/2047/2007, could it be possible to ask you to provide me with copies - I have been looking everywhere for them for a while. my e-mail os chris.browne AT linskills.co.uk.

Hope this is of some use.

regards

Chris

ClaireHodgson
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thanks Chris.

maybe you could ask Liverpool to talk to Newcastle, then, LOL

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