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tribunal or mags - here we go again!

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Tom H
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Yes Neil and Gareth. Good points.  It depends I suppose on whether Part II is referring to credits for earnings which I believe the contributory benefits provide.  But I’m all for stretching the interpretation.

[ Edited: 9 Dec 2010 at 12:04 pm by Tom H ]
Nickd
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South Hams CAB Welfare Benefit/Debt Specialist help

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I’m new to Rightsnet, although I’ve been viewing it for ages.  I spend much of my spare time as a staff member on Mylegal.org.uk, hope I can make a useful contribution to your site.

Criminal related overpayments are an area we specialise in, alongside criminal defence services. 

There’s an important judgement which anyone in this area should be aware of:.

2011] EWHC 1542 (Admin)
Case No: CO/178/2011

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

Birmingham Civil Justice Centre,
Bull Street, Birmingham
17/06/2011


B e f o r e :

MR JUSTICE HICKINBOTTOM
____________________

Between:
COVENTRY CITY COUNCIL

Appellant

- and -

NEIL VASSELL

Respondent


The importance of this judgement relates to an interpreation of how SSAA S.112 (as amended) should be dealt with in the criminal courts. 

Some LA’s (by no means all) promote prosections under this lesser offence as strict liability offences but the judgment sets the record straight that there must be a degree of knowledgeable intent behind the failure to report a change in circumstances for an offence to arise.

The judgement is well worth reading.

On the issue of which comes first, the Tribunal, or the Criminal Court, there are different schools of thought, but I have had a Crown Court Judge direct that under the adjournment (legal proceedings) clause (correctly identified above as s.117) in the SSAA, where any offence brought under the act relates to a question to be decided upon appeal; - the civil appeal should be heard first.

I like the format of the site by the way!

[ Edited: 2 Jul 2011 at 01:30 am by Nickd ]
Kevin D
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Nickd - 01 July 2011 11:26 PM

....Some LA’s (by no means all) promote prosections under this lesser offence as strict liability offences

As I understand it, the DWP has recently changed policy such that for all cases where the alleged quantum is under £20,000, s.112 will be used instead of s.111A.  Obviously, that doesn’t negate use of the Theft Act(s) or the Fraud Act 2006, the latter of which the DWP and LAs seem to increasingly rely on.  Notably, s.117 of the SSAA doesn’t apply to the latter acts.  It’s only speculation on my part but I wonder if the increased reliance on the Fraud Act 2006 is a deliberate tactic to try and limit the rights of a claimant/defendant?

Nickd
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The cynic in me says they’ll use whatever means they can to secure a conviction Kevin.  Although, to be fair I’ve not noticed a change in using prosecutions other than via the s.112/111 route in our locality, with the exception of some Theft Act related ones for larger sums (two examples being £62 and £51K overpaid Income Support cases tied to convictions in the Crown Court)

The 2010 Fraud and Error report prepared by Lord Freud suggests they’ll be pumping even more money into reducing fraud and error, more so ‘fraud’ than ‘error’, it seems; if his recommendations are followed through.  I recall an investment of £425 M going into all of this, yet they withdraw our £28M legal aid bill for specialist benefit help!.

What concerns me is the proposed cut backs in legal aid and what the effect upon the liberty of an individual will be.  The case I referred to above involving the £51K overpayment resulted in imprisonment.  The Judge was compelled to imprison due to the amount.  After the defendant came out we carried on with his Income Support appeal and got the overpyment reduced to a little over £23K, I wonder what sentence the Judge would have dished out had he sentenced upon the basis of the correct amount.  It’s crucial CDS work in tandem with welfare benefit specialists, they can often provide useful evidence on underlying entitlement and so forth.

The judgment I refer to in my previous post is well worth reading, especially if sanctions are to become the norm and as I understand it there is a move towards putting people in Court rather than offering them cautions.  The judgment indicates LA’s will have a bit of a mountain to climb with section 112 offences.  It would be good to see LA’s being a little bit more pro-active in using CIS to track say Tax Credit changes as a preventative tool; rather than as a means of collecting the evidence once a non-reported change has been picked up.

I also suspect the Universal Credit and legislative change will dimminish the prospects of appealing overpayments, giving the claimant even less of a right to dispute. 

I don’t like the way it’s headed at all.

.

[ Edited: 2 Jul 2011 at 10:31 pm by Nickd ]
Kevin D
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Caution - courtesy of “a.n. other”:  at first glance, s.117 appears to offer a bottom line answer to the “criminal v civil” proceedings conundrum.  However, some further analysis has revealed it may be far more restricted in its application than may first appear.

Unfortunately, I’m not immediately able to add more (combination of reasons).  If/when I am able to add more and flesh out some of the analysis, I’ll repost.  In the meantime, tread carefully.

NB:  I agree entirely with the sentiment expressed by Tony - some solicitors and barristers simply don’t “get it” when dealing with social security benefits.  There are some exceptions but they are few and far between.

NB2 (5th Jul):  It is unlikely I will add further to this thread having taken a decision about my future involvement in benefits.

[ Edited: 5 Jul 2011 at 09:12 am by Kevin D ]
Brian JB
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I posted on an earlier related thread on this issue, which is still ongoing.

Basically, client separated from husband in 1993, received income support (but not CTB - husband paid bills) for self plus one, then two children.

Raided by police and DWP following fraud investigation and substantial overpayment raised. We appealed the entitlement and overpayment decisions. Client was also prosecuted. At the time, we wrote on more than one occasion to chase up the appeal papers, remarking that we hoped they were not being delayed becuase of the prosecution.

As it happened, papers arrived shortly before hearing in Crown Court, so appeal hearing could not come first. Client was found guilty on 4 of 7 charges and sent to prison.

After her release, DWP took POCA proceedings and the first hearing of that was also before tribunal hearing. POCA hearing adjourned by judge who said that it was exceptional circumstance.

Client’s appeal was allowed in full - not disentitled for any period and not overpaid. Judge opened up by saying he felt bound by criminal result but when led through R(S) 2/80 went on to full hearing and accepted evidence of client and witnesses. Papers included witness statements for prosecution and defence.

Back at POCA, after tribunal hearing, judge declared he had NOT granted adjournment for tribunal to take place (??!!), said that tribunal judge an “inferior judge”, welfare rights “**!!!**?!!” and granted POCA order against client for nearly £30,000 more than section 71 overpayment had been (which is possible)

After much hard work with her solicitors (and how I wished I had taken up offer on this site of referral to another company)  - and great determination on client’s part - client got barrister to take case pro bono. Initially refused leave to Court of Appeal but at full court hearing last week she was granted leave to appeal against both conviction and POCA (despite fact her barrister had told her he was only seekinhg leave on POCA - Court of Appeal disagreed with him).

Client appears (at last) to have come across judges who had some grasp of what had gone on, and who were clear that tribunal judge was NOT “inferior” - they commented that his statement of reasons was detailed and indeed it was his tribunal which had the jurisdiction to decide her entitlement.

It may be that this case provides some useful case law when it is heard and I will keep you all posted.

Brian

nevip
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Proceeds of Crime Act

tony pickering
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Brian, I’ll definitely be watching for any developments. 

I had a tribunal hearing this morning for a case following a very similar trajectory.  IS/PC/HB/CTB appeals after alleged working while claiming and alleged capital assets decision in 2008.  We appealed the decisions.  There followed a long and complicated decision-making sequence during which the earlier decisions were declared void and the process had to start again.  This did not stop him being prosecuted and sent to prison for 24 months [he was 74 at the time].  DWP thought decision- making not good enough for tribunal but OK for prosecution.  I know the requirements are different but it does make it all seem such a farce.

I did all I could to get the appeals moving including many letters to DWP, contact with 2 MPs [ he moved during the period] and requests to Tribunal Service for Directions.  His POCA hearing was adjourned by the judge after I wrote a detailed letter to his solicitor.  I wasn’t there but apparently his barrister and the Judge took notice of it.  I had previously tried to influence his solicitor, but she knew best.  The hearing this morning was adjourned as my submission had not reached the tribunal or the other parties despite being sent in 6 weeks ago. 

The hearing has been relisted for a month before the POCA hearing is due so plenty of room for the same to happen as has happened in yours.

Tony

Kevin D
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Brian, a hearing on the relevance of the civil decision making process in criminal proceedings is long long overdue.  It also makes a change to know that, long last, a Judge appears to understand some of the distinctions and interactions between separate jurisdictions.

If the conviction is overturned (and I can’t see for the life of me why it shouldn’t be based on the info given), it will, or at least SHOULD, provide a real basis to prevent some of the abuses perpetrated on occasion by the DWP / LAs / Crown. 

Another poster on Rightsnet has long been waiting for a suitable client with a swtiched-on legal team to take a case further in similar circumstances.  If you beat him to it, I’m certain he won’t mind in the slightest.

I still take the view that if a prosecution is sought relating to alleged social security fraud, the civil appeals mechanism should automatically be engaged.  But, that would mean justice being seen to be done, so no chance of that then….

neilbateman
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Brian - good on you for sticking at this.  I’ve seen far too many cases where WR advisers have prejudjed clients and/or not dealt with fraudulent OP cases competently. 

POCA is very nasty - basically they can take away client’s home and any other assets.  It’s David Blunkett’s legacy to the rule of law. 

It also shows the alarming lack of knowldge on the part of criminal law practitioners.  You may want to ask the DWP via her MP to set up a Director level investigation into how they got this so badly wrong and/or go to the Ombudsman. 

I keep saying this, but don’t underestimate just how little criminal law practitioners know about social security and we have a huge job to persuade them to apply their skills and learning to benefits law in benefit fraud cases and to also persuade the courts to allow disputed cases to go via the Tribunals system first (and Tribunals Service to prioritise these cases without losing the paperwork).

Please let us have a copy of the Court of Appeal’s decision.  Do you have the decision on leave?

[ Edited: 2 Aug 2011 at 06:36 pm by neilbateman ]
ClaireHodgson
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sovietleader - 02 August 2011 03:18 PM

I posted on an earlier related thread on this issue, which is still ongoing.


After much hard work with her solicitors (and how I wished I had taken up offer on this site of referral to another company)  - and great determination on client’s part - client got barrister to take case pro bono. Initially refused leave to Court of Appeal but at full court hearing last week she was granted leave to appeal against both conviction and POCA (despite fact her barrister had told her he was only seekinhg leave on POCA - Court of Appeal disagreed with him).

It may be that this case provides some useful case law when it is heard and I will keep you all posted.

Brian

YAY.

it is possible to use casetracker to keep track of the case and find out when the hearing is

http://casetracker.justice.gov.uk/listing_calendar/

there would still be a delay before the judgement is handed down, but it would help all of us to keep track of it and keep an eye out

in the meantime, knowing the name of the case would enable reps to cite it to the DWP and Tribunals who want to put the mags before the tribunal

Claire
now at BHP Law

1964
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Yes, it would be very useful to monitor how this one pans out.

It really is appalling. It seems so blinking obvious that civil should always proceed criminal or at least that there should be good practise guidance to that effect. The main local authority we deal with, for instance, always allow civil proceedings to run their course before considering criminal proceedings but its the only body that does. I can’t understand why it isn’t universal.

Brian JB
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Many thanks to Kevin, Neil and Claire for their input this time and in the past (and to all others who have contributed!!)

I tried the link you gave Claire, but it only seemed to be for the Civil Division - I couldn’t find a similar system for criminal cases, but that may be down to my ICT skills.

However, the client is very good at keeping us up to date, so I fully expect to hear from her as soon as anything happens. She seems to have a very good relationship with the supervisor of case listings at the Court of Appeal (or whatever her actual job title is), so hopefully it will be fairly soon. She is off to court again to get suspension of the enforcement of the POCA decision. I don’t know how these things work, but I would assume that in view of the granting of leave to appeal, this should be straightforward.

The Court of Appeal suggested a 2 hour slot but agreed to a one day slot on the request of the client’s barrister.

neilbateman
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Brian please can you email me client’s name (as it is now in the public domain), so that a transript of the leave decision can be obtained? 

Thanks

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Brian JB
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To update anyone interested, our client called this morning and told me the Court of Appeal hearing is listed for 20th October 2011 with Lord Justice Richards together with Judges Hickinbottom and Supperstone. The inclusion of Judge Hickinbottam (and I know I do him a disservice by not addressing him by his correct title, but I have forgotten what it should be) certainly shows that the court will have the experience of a judge well familiar with what is now the first tier tribunal and upper tribunal system in this area. At the end of the day, I don’t think you can ask anything more than that, and hopefully we will get some useful pointers for this problematic area from the decision in this case.

It would be quite useful, I feel, if welfare rights workers who use this forum could post details of their experiences of cases where a tribunal has preceded court hearings. In particular, it may well assist our client’s barrister to have some idea of how often such cases arise, and what happens where an appeal is successful. My experience is that the court case is dropped (or varied if the amount of overpayment, or period of “living together”, for example, is altered by the tribunal).

The official position of the DWP in this case (through counsel) is that, had the decision of the tribunal been known before the jury had reached a verdict (though I think it was put more simply originally as “before the trial came to court”), it was “possible” that DWP would not have proceeded with the trial, but not “an inevitable or necessary response”.

I cannot remember any case in 30 years of working for the DWP and welfare rights where a case did continue, or continue unaltered, after a successful tribunal. That said, it is not a frequent occurrence, which is why I would value the experiences of others