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tribunal or mags - here we go again!

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chrislpl
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I could try, but do you think they would understand our local accent?

Hello, Admin, could we possibly get these cases included in the Briefcase, in case other advisers need to use them/refer to them.

Thanks

Chris

ClaireHodgson
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something positive -  DWP solicitors say that if tribunal decide in claimant’s favour, no criminal proceedings! hopefully that will persuade tribunal judge to lift the stay!

shall i hold my breath?

chrislpl
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Dear Claire,

Well done. Even though I think it is a natural result of a successful appeal, we’ve never been able to get the local DWP Solicitors to agree to drop the criminal proceedings before we have had the actual appeal decision.

I should have thought that this reinforces your position that your local Tribunals Service previous postponement decisions were irrational. Don’t know if you want to necessarilty threaten them with JR proceedings though when providing this new evidence for consideration, as they may put the fences up and you don’t get a properly reasoned decision to proceed with the appeal tribunal as soon as possible.

Congratulations though, as any sensible Judge must know you’ve cut their legs away.

Regards

Chris

ClaireHodgson
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hurray!  decision to list the tribunal hearing finally arrived today.

i wonder, is there any mileage in a generic letter to the senior tribunal judge for this area on the generic point, to save the grief for anyone else in the future?

Nicky
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I’ve got one similar to this just dropped on my desk - client came to ask for help with an appeal which was only posted to DWP yesterday - she’s rung this morning to say she’s been summonsed to court on the 12th Jan.

This thread gives me lots of tips but, before i start firing off letters does anyone have any more advice - any given would be gratefully received.

Kevin D
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Don’t forget to read the archived thread - the link is in the opening post of this thread.

[ Edited: 1 Dec 2010 at 02:46 pm by Kevin D ]
ClaireHodgson
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not much.

save that, given that if your client is summonsed to court, ensure she

1. gets a solicitor
2. you have major input into the solicitor (go with client) so that you explain in words of one syllable what the issues are and thus
3.  persuade solicitor of argument to put to mags, to get mags to adjourn the criminal case.

if solicitor doesn’t get it ... email me at .(JavaScript must be enabled to view this email address)

Nicky
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Thanks Kevin - i have done.

Clare - she already has a Solicitor - one who has experience of defending people in benefit fraud cases - i’ve reproduced Tony Bowman’s letter to the client that’s on the first page of this thread (thanks Tony) and have offered to go to the Solicitors with the client next week.

If i’m unhappy with anything i will take up your kind offer to e-mail you - need all the help i can get with this one :)

Thanks guys.

neilbateman
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I have just chanced upon s 117 Social Security Administration Act 1992.  I assume it is still in force: http://www.legislation.gov.uk/ukpga/1992/5/section/117/enacted/data.pdf 

It’s a pity that the criminal law legislation is not in the Sweet and Maxwell annotated legislation books.

This clearly states that if doubt is raised about entitlement/amount/recoverability of an OP in criminal proceedings, the question must be put to a decision maker (not shelved as something “not relevant” or “separate” by the DWP’s lawyers).

Subsection 3 seems to indicate that the criminal case should be adjourned in certain situations to allow the appeal to proceed (including to the UT or beyond if need be). 

Am I right?

ClaireHodgson
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i would say you are, nice one Neil!

neilbateman
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After a bit more graft I find that the consolidated verison is in the Blue Volumes plus a version at s 117A for JSA and Tax Credits cases.  So yes, it is still in force and they must adjourn.

So what are we and DWP going to do about all those cases where they have not agreed to ajourn and peopel have been sentenced on wrong amounts or even convicted when ther’s no loss of entitlement?

Here it is below cut and pasted from Blue Volumes:


Social Security Administration Act 1992

117.—(1) This section applies to proceedings before a court–
(a) for an offence under this Act or the Jobseekers Act 1995; or
(b) involving any question as to the payment of contributions (other than a Class 4 contribution recoverable by the Inland Revenue); or
(c) for the recovery of any sums due to the Secretary of State or the National Insurance Fund,

(2) A decision of the Secretary of State which–
(a) falls within Part II of Schedule 3 to the Social Security Act 1998 (“the 1998
Act”; and
(b) relates to or affects an issue arising in the proceedings, shall be conclusive for the purposes of the proceedings.

(3) If–
(a) any such decision is necessary for the determination of the proceedings; and
(b) the decision of the Secretary of State has not been obtained or an application with respect to the decision has been made under section 9 or 10 of the 1998 Act, the decision shall be referred to the Secretary of State to be made in accordance (subject to any necessary modifications) with Chapter II of Part I of that Act.

(4) Subsection (2) above does not apply where, in relation to the decision–
(a) an appeal has been brought but not determined;
(b) an application for leave to appeal has been made but not determined;
(c) an appeal has not been brought (or, as the case may be, an application for leave to appeal has not been made) but the time for doing so has not yet expired; or
(d) an application has been made under section 9 or 10 of the 1998 Act.

(5) In a case falling within subsection (4) above the court shall adjourn the
proceedings until such time as the final decision is known; and that decision shall be
conclusive for the purposes of the proceedings.


1117A.—(1) This section applies to proceedings before a court–
(a) for an offence under this Act or the Jobseekers Act 1995; or
(b) involving any question as to the payment of contributions (other than a Class
4 contribution recoverable in accordance with section 15 of the Contributions
and Benefits Act); or
(c) for the recovery of any sums due to the Inland Revenue or the National
Insurance Fund.

(2) A decision of an officer of the Inland Revenue which–
(a) falls within section 8(1) of the Social Security Contributions (Transfer of
Functions , etc.) Act 1999; and
(b) relates to or affects an issue arising in the proceedings, shall be conclusive
for the purposes of the proceedings.

(3) If–
(a) any such decision is necessary for the determination of the proceedings, and
(b) the decision of an officer of the Inland Revenue has not been obtained under section 8 of the Social Security Contributions (Transfer of Functions, etc.) Act 1999, the decision shall be referred to such an officer to be made in accordance (subject to any necessary modifications) with Part II of the Social Security Contributions (Transfer of Functions, etc.) Act 1999.

(4) Subsection (2) above does not apply where, in relation to the decision–
(a) an appeal has been brought but not determined;
(b) an appeal has not been brought (or, as the case may be, an application for
leave to appeal has not been made) but the time for doing so has not yet
expired; or
(c) an application for variation of the decision has been made under regulations
made under section 10 of the Social Security Contributions (Transfer of
Functions, etc.) Act 1999.

(5) In a case falling within subsection (4) above the court shall adjourn the
proceedings until such time as the final decision is known; and that decision shall be
conclusive for the purposes of the proceedings.

Tom H
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Well spotted.  But it would appear to apply only to decisions about contribution conditions (ie decisions falling within Part II of Sch 3 of the 1998 Act).  It’s been a long day and maybe I’m not reading it right.

Tom H
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It appears to be paras 5 & 6 of Part I to Sch 3 of the Act that are relevant for present purposes:

Recovery of benefits
5. A decision whether payment is recoverable under section 71 or 71A of the
Administration Act.
6. If so, a decision as to the amount of payment recoverable.

neilbateman
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At first sight yes it looks like it only refers to NI HRP and credits questions.  But…

As you know a supersession of an award of CA, JSA, IB or ESA would remove NI credits and any appeal against the supersession would involve a question of NI credits.  Therefore, it ought to apply to cases involving alleged non entitlement and overpayment of these (eg working while claiming cases) if there is also an associated prosecution?

Or is this stretching the interpretation too far?

Gareth Morgan
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Is the court case likely to include reference to credits as being fraudulently acquired?  I suspect that would be needed to bring it within the scope of that section.