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tribunal or mags - here we go again!

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Brian JB
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Just to update - Court of Appeal hearing was due today but client found out yesterday (after travelling to London with family and friends) that the hearing had been postponed on Monday - solicitors informed Monday but had not told her.

She has been told it is likely to be re-listed soon

Brian JB
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Case now listed for 17th November at Court of Appeal

Lid26
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Hallo everybody,

I have read this thread with interest. Luckily at the moment the case I am dealing with has been adjourned at the magistrates Court to establish what is happening at the tribunal. As has been stated previously it is clearly preferable that the civil case is dealt with first. I have a few thoughts that might generally help anyone dealing with a fraud case at tribunal, and how to deal with this. I have experience of prosecuting hence can proffer an alternative view point.

My understanding is that if a decision has been superseded on the basis of fraud, the burden of proof lays with DWP (or other relevant agency) - this should be argued as a prelimary point.  I am assuming that if you are appealing the decision then the allegation of fraud can not be that substantial. According to caselaw if the burden of proof is not satisfied then the case should fail immediately, benefit should reinstated, irrespective of actual fraud. (Note; in the latter case this could still lead to crimnal proceeedings be taken/continued.)
My view is that perhaps you should treat the Tribunal case evidence in the same way as if it were a criminal trial. In the Mags/Crown Court the standard of proof is ‘beyond reasonable doubt’. Anything that you can do at Tribunal to create doubt will hopefully ultimately prevent a successful trial.
For example, if there is surveillance evidence, RIPA 2000 (Regulation of Investigatory Powers Act)  applies - check out the codes of practice- were they completely followed, there should be a surveillance log. All of these should be requested. If need be get the tape of the interview under caution- consider whether police procedure is correct. The main importance is to establish if client has mental health problems was there an ‘appropriate adult’ present ie a friend/relative or even social worker who can effectively interject as required, explain items and basically ensure the well being of the suspect. If there is no appropriater adult at interview, or the surveillance etc was not properly authorised then this evidence should be excluded from the Tribunal, as indeed it would be at a criminal trial. (If the only evidence is incorrect/unauthorised surveillance, and admissions in interview where no appropriate adult when required, then arguably if this is inadmissible the DWP etc can not show relevant change of circs ab initio and could fail on the initial burden of proof.)
In my experience some benefit fraud officers are not as ‘clued up’ as their police counterparts. This can be used to good purpose in unravelling the case.
There may also be ‘unused material’ this is basically paperwork or exhibits collating by police or equivalent during an investigation, but not actually evidence. For example, this might be surveillance logs where nothing happened, (isn’t it strange that the police only ever seem to watching when the client goes out, even if this isn’t a regular appoinment!)-chances are that there is ‘negative’ evidence which shows that on 6 out of 7 days client never left the house.
Unused Material is disclosable to defence in a criminal trial, and the Prosecution should be provide a schedule of what items exist, and unused witnesses if relevant which can then be copied or viewed accordingly.There is no reason why criminal unused material could not become part of a tribunal case evidence. If the Defence Solicitor won’t help, then the client should be entitled to a copy.

Also, perhaps generally a word with the court clerk will assist. If the solicitor is awkward, a direct letter to the Court might be worthwhile. However, maybe just bend the client’s ear, that it is not in his interests to have 2 cases running parallel in the Criminal Courts and at Tribunal without some form of cohesive approach. After all, a solicitor should take heed of his client’s instructions!

A final point- concerning the argument whether the correct overpayment has ben made, and if this can be re-opened by the court. Firstly the defence solicitor should argue as a trial point that the amount defrauded is incorrect. Technically if the charge sheet/indictment shows £x but the amount is £-x the case can only be found guilty if the Mags/Jury agree the value defrauded. However, provided no prejudice occurs the charge sheet etc could be amended during the trial.It may be possible to hold a so-called ‘Newton Trial’ (following the case of the same name.) This is effectively where after a guilty plea where the court determine a solely factual issue- often this could be monetary amounts, an amount of damage caused or maybe a disputed speed following a speeding offence. (I was going fast, but not that fast!)

Hope this helps those of you struggling with fraud cases.

Lid26

Brian JB
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BAD NEWS I am afraid. Client has just rung from Court of Appeal. My heart sank when I saw the line up anyway, but they threw out her appeal and basically said that the tribunal decision was of no consequence, inferior judge, etc. As with tribunals, it depends who you get. When a full court granted leave, one of the judges was clearly familiar with social security tribunals and their jurisdiction and, although the written reasons for granting leave were not as strong as the terms in which the court had spoken to our client, hopes were high when one of the judges due to hear the appeal was to be Judge Hickinbottam (former President of TS i think). However, case was postponed by Court of Appeal and new panel clearly took a decidedly different view

Therefore, although there is no longer a recoverable overpayment of about £40,000 under section 71 (because the tribunal decided she had not been a member of a married couple), she is required to repay £68,000 under the Proceeds of Crime Act and her conviction stands for failing to report that her husband was living with her (which he wasn’t). The Proceeds of Crime sum is higher then the overpayment because, unlike our section 71 cases, the DWP can estimate the amount overpaid for periods when no payment records are available.

The decision is potentially very damaging to those cases where we cannot get a tribunal to hear a case before criminal proceedings take place.

Kevin D
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This is an outrageous judgement and simply demonstrates that “justice” is nothing of the kind.  There really isn’t anything else to say.  At least not that is printable or wouldn’t potentially be regarded as being in contempt of court.  Of course, one can only be in contempt of what is contemptible….

{Edited to add}:  Is this going to be appealed to the Supreme Court?  It appears the appellant certainly has nothing to lose.

[ Edited: 17 Nov 2011 at 03:37 pm by Kevin D ]
tony pickering
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Sovietleader - are you able to supply a copy of the judgement?  I have a tribunal listed in early January - POCA hearing adjourned pending outcome.  My fax no is 01298 308050.  If not can you provide a reference?

Thanks
Tony

Kevin D
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Tony:  Firstly, I think I know enough about the case to safely say there isn’t any more to it in substance.  It’s pretty simple:  conviction obtained for fraud related offence; POCA enacted; THEN Tribunal finds for the clmt; subsequent Court refuses to follow Tribunal outcome on the grounds that, to all intents and purposes, the conviction overrides the Tribunal outcome.  In effect, the reasoning amounts to “as there is a conviction, there has been a crime and as the crime related to monies paid, those monies were the proceeds”.

As I’ve posted elsewhere, this judgement all but renders a Tribunal pointless in cases where convictions have been obtained.  In my (albeit non-lawyer) view, there is surely a HRA argument along these lines: the law expressly provides for the right of appeal to a Tribunal.  Article 6 provides for such a hearing to be fair.  It must be open to argument that to unilaterally disregard the outcome of a Tribunal is an unanswerable breach of Article 6 on the grounds the clmt has, in reality, been deprived of the right of the effect of the Tribunal s/he was legally entitled to seek redress from.  But, until/unless this is challenged, I have no doubt that there will be cases where the DWP/LAs now deliberately seek to delay Tribunals in cases where criminal proceedings are also under way.


Dan:  I happen to know the names of the parties but the transcript isn’t on any of the likely public sites (yet) so I’m reluctant to post the details in case sovietleader wants to keep the claimant’s name confidential.

tony pickering
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I’m a bit puzzled/frustrated about the mystery surrounding this case. 

As I posted above I have an appeal tribunal listed for Monday, with the POCA hearing adjourned for its outcome and I would very much like to be able to advise my client about the likely impact of the result.  It is a longstanding case and has involved a more than considerable amount of work on my part and distress on my client’s.  It looks like it might all be for nothing. 

Is anybody in a position to know how widely known this case - i.e. how likely is it that the court hearing my client’s POCA case will be aware of it?

I am assuming that sovietleader is trying to limit the damage for the time being as well as possibly keeping the person’s name from being made public.  However, as it is a Court of Appeal judgement then surely the person’s name will be public to the extent that the judgement is, and it looks as if this is just a question of time.

I would still love to read the judgement [with names redacted?]

Tony

neilbateman
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As far as I am aware there is only a digested law report of the case available (R v Wearing - the name is in the public domain), so it is not possible to see the full reasoning.  So it is best not to speculate until someone obtains the full law report/transcript.  It does appear however, that the deciding point is that the Tribunal was heard after the criminal matter.  If they can’t prove non-entitlement/overpayment/recoverability to the civil standard before a Tribunal, how can they do so to the higher criminal standard?

I was involved in one case where the Tribunal was heard after the sentencing hearing and was worse than the basis of plea used for sentencing.  The DWP took the opposite stance and relied on the Tribunal decision in the subsequent POCA proceedings.- heads they win, tails the client still loses.

In the meantime, it is still essential to try and get Tribunals heard and concluded before the case goes through the criminal courts.  The criminal courts are simply not designed to deal with social security law and the lawyers involved will readily admit they don’t understand it which is one reason why so many clients plead guilty (another being their concistent failure to obatin proper advice and help before they are interviewed).  The courts don’t have jurisdiction either, which is why we have Tribunals.

Traditionally, we tend to take a relaxed attitude to getting Tribunals heard quickly in OP matters.  However,  a different and more proactive stance is essential where the criminal courts are involved - they are not forgiving of delay and will often just plough on regardless, though DWP policy is to agree to long adjournments of criminal matters while an appeal is taking its course (though in typical DWP fashion, they seem to forget their own policy at times).

Of course, the delays in the Tribunals system, some Tribunal judges’ refusal to expedite hearings and the very variable availability of skilled representation makes it practically difficult for clients being prosecuted.  In any event clients invariably fail to appeal the entitlement/OP decisions and their criminal lawyers don’t advise or help them to.  As an example of the lack of knowledge, in a recent case I was involved in the prosecution barrister apparently told the defence that he did not know that one could appeal to a Tribunal…

Brian JB
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tony pickering - 06 January 2012 09:50 AM

I’m a bit puzzled/frustrated about the mystery surrounding this case. 

I am assuming that sovietleader is trying to limit the damage for the time being as well as possibly keeping the person’s name from being made public.  However, as it is a Court of Appeal judgement then surely the person’s name will be public to the extent that the judgement is, and it looks as if this is just a question of time.

I would still love to read the judgement [with names redacted?]

Tony

Tony

Sorry I didn’t get back to you - I think I did see your post but forgot to respond, then have been on leave and only saw this thread again today. As someone has said earlier, I am not aware there is a full transcript of the decision. The client certainly hasn’t seen one and I presume from more recent posts that no full version is avaialble yet. I am not trying to exercise any damage limitation - I simply don’t have access to the full judgement. The client’s name is Wearing

What I would say is (and I can’t remember exactly what I have said in earlier threads, so apologies for repeating myself) the POCA was adjourned as far as my client and her barrister were aware to allow the tribunal hearing to take place first. When the POCA case resumed, after the first tier tribunal, the judge denied having adjourned for that reason. I suspect that if he did adjourn to enable the tribunal to take place, he thought it would simply disallow the appeal, simply because my client had lost the court case.

It will be of interest to many, myself included, to know what happens in your case. Prior to the First Tier hearing, the position is still that the effect of an earlier conviction is to move the burden of proof to your client. What will be interesting is what happens at the POCA if your client is successful at tribunal, and whether DWP advance any argument based on the Court of Appeal judgement in Wearing, or so simply as they did in the Wearing case - argue that the First Tier Tribunal judge is an “inferior judge” and therefore the decision has no effect on the POCA proceedings (that is how their case was related to me by the client)

Regards (and apologies for not getting back in touch earlier)

Brian

[ Edited: 6 Jan 2012 at 02:48 pm by Brian JB ]
tony pickering
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Thank you Neil and Brian for your responses.  I’m clearer now on where we are on this, although will know better when we see the transcript.

I agree with all that you say Neil - one problem is that we come into these cases at various stages in the process[es] and often have a limited ability to influence the order of events, particularly when lawyers are not listening.  It took quite an effort on my part in my current case to influence the court proceedings.  It was only when I gave my client a long and detailed explanation of the situation that his barrister took notice and the Judge adjourned the POCA hearing.  I don’t know exactly what happened as I wasn’t there, although my client is clear that my letter led to the adjournment.  As you say, the clear priority is to try and get the tribunal hearing before the prosecution hearing.

Brian, I will post what happens.

Tony

ClaireHodgson
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it occurs to me, Counsel for the claimant will have a copy of the judgement, so if anyone knows who that is, they could ask Counsel to email over a copy.

Have to say, I am exceedingly surprised that this has not yet been reported.  I’ve done as others - looked all over!

Ros
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here’s the report of case on lexisweb.co.uk -

http://lexisweb.co.uk/cases/2011/november/r-v-wearing

looks as though tribunal may have decided claimant wasn’t cohabiting and then Court of Appeal decided Crown Court not bound by that decision, although can’t really tell without transcript.

1964
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And presumably, if the FTT judgement is ‘inferior’ there is nothing to prevent DWP from continuing with/instigating criminal proceedings even if the FTT is heard first?

Brian JB
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1964 - 09 January 2012 08:50 AM

And presumably, if the FTT judgement is ‘inferior’ there is nothing to prevent DWP from continuing with/instigating criminal proceedings even if the FTT is heard first?

The DWP position in our case was that success of the appeal is only one consideration when deciding whether to proceed with a prosecution. Of course, I cannot think of any case where a prosecution has gone ahead and not taken full account of the tribunal decision. Proceedings are either dropped or charges amended (say where the period of overpayment is reduced). The reality is that the tribunal decision will affect whether prosecutions are pursued afterwards in most, if not all, cases.

Brian