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tribunal or mags - here we go again!

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Lid26
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Hi,

I have looked at the brief report of the Wearing case- Whilst I appreciate that it may seem perverse - the Crown Court jury presumably felt that the evidence had been proven beyond reasonable doubt. If the Crown Court Judge had doubts whether the Prosecution had made out their case, then he should have removed the case from the Jury or directed them to make not guilty verdict- there seems to have been no errors of law identified by Court of Appeal; The Court of Appeal were invited to consider whether the verdict was ‘safe’- and in so doing would need to consider whether the Crown Court Judge had made any errors of law eg in summing up or by allowing inadmissible evidence. It seems that the Court of Appeal found nothing to render the conviction unsafe. The Tribunal then decides that there was no dishonesty. FTT is not binding, and perhaps a different Tribunal would have made a different ruling, perhaps a different Jury would have returned a different verdict- just because a different verdict could be made is not grounds to sustain a Criminal Appeal.

No doubt the transcript will clarify this.
This clearly shows the importance of trying to sort the Tribunal hearing first!


Lid26

Kevin D
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Lid26 - 18 January 2012 11:49 PM

The Tribunal then decides that there was no dishonesty. FTT is not binding, and perhaps a different Tribunal would have made a different ruling, perhaps a different Jury would have returned a different verdict- just because a different verdict could be made is not grounds to sustain a Criminal Appeal.[Lid26

Lid, with respect, this completely overlooks the chain of effective decision making.

Firstly, a FtT isn’t primarily interested in “dishonesty” in the legal sense.  It’s about facts and how those relate to entitlement, irrespective of honesty. 

Secondly,  A FtTD IS most certainly binding on the DWP in the context of being a decision that MUST be implemented.  FtTs are only non-binding in the context of legal precedent.

Thirdly, as has already been pointed out (and starkly stated by at least two Cmmrs / UTJ), the standard of questioning in the criminal court is often dreadful due the huge lack of understanding of Social Security law by the criminal courts - as well as the lawyers acting for the parties.  I have personally spoken with lawyers practicing criminal law who are unfamiliar with Social Security law in cases of alleged benefit fraud.  The lack of knowledge and the inability of many to get their heads around SS law is absolutely frightening.  I have also assisted in more than 50 cases of alleged benefit fraud and some of the examples of supposedly trained lawyers (both prosecution and defense) faffing about, miles out of their comfort zone, has been an eye wateringly desperate experience.  I have also acted as an expert witness in such a case and to say the defendant’s solicitor “didn’t get it” didn’t come close to describing his/her inability to grasp the relevant law.  Fortunately, the barrister had a more open mind and took on board my observations - the defendant was (rightly) found not guilty.

Fourthly, in Wearing, a Tribunal has expressly found that the clmt was NOT overpaid.  On that basis, there could not possibly be a failure to notify a change in circumstances affecting entitlement.  In short, the criminal court has effectively replaced the FtT and I am not aware of any legal basis on which the criminal court has such jurisdiction (the CA judgement in Wearing aside).  On the flip side, suppose Wearing had been found not guilty.  Would that verdict have removed the overpayment?  Absolutely not because the criminal court has no jurisdiction to determine entitlement.  On that basis, I can’t see how it can work the other way around.

Fifthly, the clmt has a legal right to a Tribunal hearing.  In my view, that must mean an EFFECTIVE Tribunal hearing.  In Wearing, the legal system has said “We don’t care about the Tribunal hearing, it’s just a ‘play court’”.  The failure of the FtT to have any actual effect in Wearing is surely a breach of Article 6 which expressly provides for the right to an (effective) independent Tribunal.  In Wearing, that right has indisputably been taken away.

In my view, the CA got it wrong - shockingly wrong - and it is hugely disappointing if there is to be no appeal to the Supreme Court.  As indicated elsewhere, the Wearing judgement provides the DWP and LAs with huge incentives to obstruct the “civil” appeal process for their own ends, knowing that the criminal courts are usually pretty poor when it comes to social security law and that convictions can be obtained in cases that would never stand the scrutiny of a FtT on the substantive facts as they relate to entitlement.

1964’s point about whether the Courts can go behind a FtTD that has already been found in the claimant’s favour is an interesting one.  I wouldn’t put it past the DWP (or some LAs) to try arguing at Mags / Crown Court that such an FtTD is irrelevant in light of Wearing.

[ Edited: 19 Jan 2012 at 10:27 am by Kevin D ]
Lid26
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Kevin D - 19 January 2012 09:24 AM
Lid26 - 18 January 2012 11:49 PM

The Tribunal then decides that there was no dishonesty. FTT is not binding, and perhaps a different Tribunal would have made a different ruling, perhaps a different Jury would have returned a different verdict- just because a different verdict could be made is not grounds to sustain a Criminal Appeal.[Lid26

Lid, with respect, this completely overlooks the chain of effective decision making.

Firstly, a FtT isn’t primarily interested in “dishonesty” in the legal sense.  It’s about facts and how those relate to entitlement, irrespective of honesty. 

KevinD
Sorry.. when I said ‘dishonesty’ in FTT I was using this as shorthand for valid/non fraudulent claim.

I don’t agree with the Court of Appeal ruling, but given that it appears no obvious error of law was found at the Crown Court (and maybe if there was and Ct of Appeal hasn’t addressed this there may be further redress.) however odd the verdict and consequent conviction it has to stand.

Nevertheless, the intervening FTT hearing is then a sham, and Art 6 must apply. (And in the Wearing case, given the positive outcome, I understand you wouldn’t want to appeal that!)
Perhaps the way forward is to argue Art 6 at the criminal court?

I have several clients all facing similar problems - one of whom now has a trial fixed at Magistrates Court in March- the Wearing ruling may well be wrong, but we need to abide by it. How, on a practical level can I ensure(and likewise other advisers in the same position) that the Tribunal hearing is dealt with first. Communication with the Trib Serv is a painfully slow and difficult task at the best of times- previous experience shows this!

Is it possible to lobby for a Practice Direction that deals with these circumstances?

What should we do to preserve the position for our clients?

Lid26

Brian JB
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I have now been given a transcript of the full decision by Mrs Wearing. In truth, it says very little that one wouldn’t expect. 

What I find hard to accept is the Crown’s insistence that “the prosecution would have commenced in any event” (para 32). The Court goes on to say -

“The Crown doubtless would have considered any Tribunal decision but that would never have bound it, because it would have been entitled to reflect whether it might be argued to be perverse or unreasonable. It followed that the delay in the hearing of the appeal Tribunal was of no relevance in this case…”

I would have liked the DWP to provide evidence of cases when a prosecution has been progressed following an adverse (to the DWP) appeal decision. From both working in the DWP and Welfare Rights I cannot think of one case where that has happened. All prosecutions have been adjusted or dropped in line with the tribunal outcome.  At present we are waiting for a tribunal decision on a £113,000 income support overpayment. If found in the client’s favour, it will be interesting to see what the DWP does (the case is still at the magistrates Court on the criminal side). At the very least, the charges may have to be amended because, as was the case in Wearing, the effect of the tribunal decision would be that there is no loss of entitlement or overpayment.

I don’t think there is any application to the Supreme Court but the client seems to going down the route of the Criminal Cases Review Commission.

I can fax copies if needed but I won’t be back in till Monday 20th.

neilbateman
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You’re right.  So I find it impossible to understand the DWP’s arguments that the Tribunal was irrelevant.

This week I had a case where client had been charged with various offences.  Two relating to an alleged false misrepresentation on a claim form.  I got the OP revised down to nil (DWP and LA had never properly asked client for details self employed expenses for the self employed work not declared, so it was easy to deal with).  DWP then discontinued the two charges for which there was no overpayment.

I had a case last summer which went in the other direction.  Client lost at Tribunal and DWP said they were bound by this in the subsequent confiscation proceedings!

It feels like “tails DWP wins, heads client loses”.

I remain deeply concerned that the criminal and tribunal processes and timings being so badly out of sync (endemic DWP delays don’t help), the variable quality of Tribunal representation around the country and the vast majority of criminal law practitioners not having a clue about benefts when defending or prosecuting beneft fraud cases (can you imagine advising about a motoring offence if you couldn’t drive?).  Clients failing to appeal or to be advised to appeal is the biggest and most serious continual failure (and actually leaves solicitor open to being sued or reported to the SRA for negligent practise).  Not helped by clients who wrongly believe that if they keep their heads down and pay back the money it will all go away.

Most disturbing of all I have had numerous cases where after the criminal proceedings have ended, DWP agree their figures were wrong and/or the OP was not recoverable.

For advisers, a much more time-consuming and proactive approach is needed in fraud cases compared to other overpayments and there must be close and ongoing liaison with criminal law practitioners (they may not know social security law, but most are very dedicated and do know criminal law).  WR advisers sitting-in on interviews under caution without a solicitor is a particular concern - I’ve seen too many where the well-meaning WR adviser didn’t intervene or provide any proper legal advice (and couldn’t because they were not qualified or accredited to do so) and actually made it worse for the client.

Mike Hughes
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Given that tribunals have been absorbed into the Court Service; that an increasing amount take place in a court environment; that Chairs are now judges and so on, why would it be a surprise if this specific function was taken over by the courts. The bigger picture points inexorably in that direction.

Anne Corden
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Sovietleader. Could you please fax me a copy of the Wearing decision. My fax number is 01274 370177. Thanks.

ClaireHodgson
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look what i found…... R v wearing…. appeared on lexisnexis

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1964
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I think the comments in para 34 are particularly reprehensible. Talk about patronising!

it also suggests to me that DWP and LA’s could well rely upon this judgement to continue/commence court proceedings regardless of FTT outcomes.

Kevin D
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Claire Hodgson - 26 March 2012 02:27 PM

look what i found…... R v wearing…. appeared on lexisnexis

I say very simply, “wrongly decided”.

Less simply, as several earlier posts including my own suggest, there is a clear failure to consider Article 6 (i.e. a right to an EFFECTIVE FtT hearing) and an absolutely perfect demonstration as to why specialist judges are needed for areas of law that have the complexity of social security.

[added]  As an aside, it doesn’t appear to have been very well argued by the client’s legal team (I’m sure, WRO excepted).

neilbateman
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It looks like the central point has not been addressed (possibly it wasn’t argued as the lawyers may have been unfamiliar with benefits law).  The weaknesses were that the Tribunal occurred after the criminal proceedings (as so often occurs) and there was no appeal against conviction. Hence the secondary arguments about adjournment and abuse of process of the confiscation proceedings.

The central point is simple: They were not a couple.  There cannot thus be any offence about not telling the DWP and/or stating that she was single.

1.  They were not a couple.  This has been determined by a First Tier Tribunal which is the only body with jurisdiction to decide this and which overturns the decision of the Secretary of State that they were a couple. Until the Tribunal decides otherwise, the decision that they were a couple stands.

2.  If they were not a couple, then, subject to whatever she wrote on her claim forms, it is inconceivable that there could be an offence which involves dishonestly stating that she was single.  The relevance of R v Passmore (there can be no offence involving a change of circumstances unless entitlement is affected) has also not been considered and is central to this.

If benefits law is not relevant to benefit fraud and is decided on a lower standard, then DWP would not routinely include evidence from decision makers in the prosecution papers.  I’ve also known them refer to Tribunal decisions which have dismissed appeals, so their approach is far from consistent.  In one case they went as far as to obtain a witness statement from a Tribunal Judge (who is now an UT Judge) to support their contention that the client was not entitled to benefit.

I also doubt the public would be happy if they knew DWP were spending millions of pounds of public money prosecuting people when there was no loss of entitlement and thus no loss to public funds.

The Court of Appeal refers to the Tribunal as “the Social Security Appeals Tribunal” - even when the “Social Security Appeal Tribunal” to use its correct title, existed this was back in the 1990s.  The Court also erroneously refers to them “living together” which does not apply to married couples and is the wrong test of benefit entitlement for married couples.  Para 14 also erroneously refers to the duty to report changes of circumstances as applying to “any” changes of circs - not what the Court of Appeal held in B v Sos WP nor what is in reg 32 (1B) Claims and Payments Regulations 1987.  Effectively, the Court has applied the criminal law to a lower standard than social security law - something the Court cautioned against in R v Passmore because of the fundamental injustice which arises.

Please can someone (eg one of the DWP officials who read Rightsnet) tell me where I have got this wrong?

nevip
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I’ve read the decision a couple of times now and given myself time to think about it and it still doesn’t sit right.  Ok, I can follow the court’s logic about not finding fault in the way the Crown Court reached its verdict and the status in precedent of the tribunal.

However, the body (the tribunal) established to decide specialist appeals against DWP decisions has given its ruling in a case which is not subject to further appeal and its decision has legal force.  As far as the DWP is concerned a fact finding tribunal has decided that they are not a couple and subsequently there has been no overpayment.  Therefore, no crime has been committed.

But the Crown Court has decided that a crime has been committed and so the DWP is free to operate in a sort of netherworld where two opposed realities exist side by side so it can slip in and out of either as it pleases.

Certainly POCA seems to apply because that merely relies on a conviction following financial gain.  The problem with that is although a court has decided that there has been criminal conduct the DWP has accepted that there has not been.  So where exactly does that leave POCA?

I bow to the obvious legal expertise of the Court of Appeal and I know they have ruled otherwise but if you put this information in the hands of the average punter I’m sure the overwhelming response would be that the criminal conviction is, if not unsafe, highly questionable.

It is this kind of thing that loses public confidence in the legal system and leads ordinary people to question its opaqueness.  Yes, the law can often look poetic when a very knowledgeable and articulate judge hands down a well crafted and reasoned decision.  But your ordinary punter cares for none of that.  It is anomalies like this that leave him baffled and the law must develop in ways which seeks to overcome them and not leave them hanging around for people to simply scratch their heads and wonder what happened there.  The public has a right to legal clarity.  This can’t be right and surely must go before the Supreme Court.

Tom H
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Overpayment and Entitlement tribunal in near future for client who has recently been convicted under the provisions discussed here.  I was determined to have the tribunal heard first but the SSWP were equally determined to have it postponed.  Unfortunately, the SSWP got its way.  That was in spite of the SSWP in its request for postponements at least on one occasion openly referring to the tribunal as “the lower court” and the Crown court as the higher one.

After the conviction, the SSWP in a supplementary submission asked the tribunal whether there was any longer a need for the tribunal to go ahead. A direction followed asking whether we wished to continue given the result of the criminal trial.  The Department were relying not just on that old reported decision re the reversal of the burden following conviction but some old civil law case which they are maintaining is authority for the proposition that the conviction is proof of the facts upon which it is based (sorry, I don’t have the file at present).

My view is that the House’s judgment in Kerr that the burden of proof should rarely be an issue in social security law trumps any reverse burden argument.  And the facts found in the criminal trial do not bind the tribunal.

Sadly, I suspect we’ll see this type of arrogance from the Department more often post Wearing.

However, I’m not as pessimistic about the implications of Wearing as others.  I agree about the Human Rights point but that’s not going to help us at present.

The criminal court clearly had jurisdiction in Wearing despite the fact that the elements of the section 111A(1A) offence included questions of social security law such as “entitlement” reserved exclusively for the SSWP under section 8(1)(c) SSA 98.  A relevant enactment under the latter includes an enactment under the Administration Act. 

But the fact is decisions on entitlement to benefit, as opposed to contributions, are not conclusive for the criminal proceedings so the criminal court doesn’t have to adjourn to await the outcome of tribunals.  It should, of course, do so on the basis that a successful tribunal would almost certainly represent a reasonable doubt. I see the criminal court as simply attempting to preserve its role, worried perhaps that if it starts delegating decisions on entitlement to tribunals, other specialist panels may demand equal treatment.

The Crown Court appears to have found Wearing’s entitlement was affected not just because she was living together but because she had excess capital from re-mortgaging.  And, with respect, Wearing can be distinguished from Passmore on the basis that the court in the latter had convicted on the basis that the defendant’s entitlement “could” have been affected which was clearly inconsistent with the standard of proof, ie beyond reasonable doubt.  Whereas in Wearing the court found that her benefit was affected, no ifs. 

However, when it comes to confiscation, I don’t think Wearing is authority for automatic recovery under the POCA.  Section 6 POCA imposes a duty to proceed but that duty is informed by subsections (4), (5) and (7) as follows:

“(4)The court must proceed as follows—

(c) if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.

(5)If the court decides under subsection (4)…(c) that the defendant has benefited from the conduct referred to it must—
(a) decide the recoverable amount, and
(b) make an order (a confiscation order) requiring him to pay that amount.

(7)The court must decide any question arising under subsection (4) or (5) on a balance of probabilities.”

It seems open for a defendant to argue that a successful tribunal decision occurring subsequent to the conviction for the substantive offence is new evidence for the confiscation judge to consider when deciding under section 4(c) whether the defendant has in fact benefited.  Wearing’s counsel appears to have argued just that at para 26.  However, unfortunately, the Court of Appeal effectively found that the Confiscation judge was within his rights to make the order, agreeing with him that “nothing prevented his making the order, nor persuaded him to exercise any discretion not to make it”. (para 28). 

But just because that judge made a bad decision to recover doesn’t mean other confiscation judges will do the same in future.  There’s some hope there surely.  Wearing isn’t in my view laying down a general rule that confiscation will always be ordered following a successful conviction for the Administration Act offence.  The latter conviction is simply a pre-condition for POCA applying (see section 6(2)(a)). 

And whilst it is implicit from a conviction under section 111A(1A) that the defendant must have “benefited”, ie her entitlement would have been adversely affected had she disclosed the change of circs, the confiscating judge is not bound to find that she did in fact benefit, ie he is not estopped from disagreeing with the jury in the original trial on that issue.  In other words, my understanding is that there is no issue estoppel in criminal law proceedings, except in a limited number of cases of which the present is not one.  The judge is bound by the conviction as proof of the conviction but not as proof of the facts underlying that conviction.

What’s less forgivable for me than a criminal judge respecting a criminal court over a non-criminal court is a tribunal judge adjourning social security proceedings when he must know fine well that a criminal court will completely lack the specialist knowledge to deal with the issues properly.  And risk the defendant acquiring a criminal record.  And let’s not forget the SSWP desperately trying to by-pass the tribunal. 

To the direction asking whether we wish to withdraw, my answer: Erm, no.

[ Edited: 13 May 2012 at 01:22 pm by Tom H ]
Brian JB
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Just to update you all - Mrs Wearing’s case is currently with the Criminal Cases Review Commission. I will update the site when I know what the outcome of that process is

John Bott
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Hope you’re not retiring soon. I’ve had a case on-the-go since 2008 (Court: Guilty verdict)/(Upper Tribunal: Not recoverable OP ‘client could not have known fact to report’ SoS agreed at UT); I submitted to the Criminal Case Review Commission but it has taken 2 years for a provisional statement of reasons from CCRC.

[ Edited: 12 Oct 2012 at 04:24 pm by John Bott ]