Urgent advice please? HB overpayment when IS decision not revised

Dear all

Client has come for advice very late in the day - has o/payment appeal next Thursday. Alleged o/payment of £30,000 HB 1999 - 2010 plus CTB of around £10,000.

Alleged non disclosure of ownership of a property in Spain. Client prosecuted in Crown Court and pleaded guilty for period 1999 - 2004; other charges left on file. We do not have all the info yet. She says Crown Court ordered repayment of around £20,000 - again no proof with her.

The HB submission says the DWP agree that she had no entitlement to IS from 1999 but have not created an o/payment until after 2004 as their records do not go back that far.

There are lots of issues in this case but my question is a simple one for now; can the HB overpayment be defended from 1999 - 2004 on the grounds that her income support entitlement for the same period was never reviewed and she is therefore still pass-ported for that period?

Many thanks - feel free to answer over the weekend (only joking).

This is one of those cases that will depend on the knowledge of the LA’s Presenting Officer and the FtTJ.  Put bluntly, if they are aware of the relevant case law, your client frankly has no chance of winning the appeal.  Bear in mind that ALL parties, including you and your client are legally required to assist the Tribunal so selectivity of arguments should be kept to an absolute minimum.

Why so difficult?  Well, on the face of it, your argument that IS remains in payment for the period in question appears sound.  IS = passported HB/CTB and the (apparent) failure of the DWP to supersede / revise the IS entitlement would normally be fatal to the LA’s case - see SD v Newcastle CC (HB) [2010] UKUT 306 (AAC) (aka CH/0872/2009).

BUT, in this case, your client has pleaded guilty to a criminal offence and therefore the LA can properly argue that your client was not LAWFULLY “in receipt of income support”.  In R v South Ribble BC ex parte Hamilton [2000] EWCA Civ 518 & 33 HLR 104 CA, it was found that ”...it was wrong in principle that a man could rely on his own unlawful act to secure an advantage which could have been obtained if he had acted lawfully” (para 20).  In GB v LB Hillingdon (HB) [2010] UKUT 11 (AAC) (aka CH/1987/2009), Judge Wikely lowered the bar further, finding it wasn’t even necessary for there to be a conviction for fraud if the LA could show there should have been no entitlement to the passporting benefit.

Worse still, suppose your client does “win” the FtT.  The LA could simply ignore the decision because the Court of Appeal has recently found, to all intents and purposes, that a criminal conviction overrides a FtT decision in a case where the Tribunal hearing was AFTER the conviction - see R v Wearing [2011] EWCA Crim 3140.  Personally, I believe Wearing was wrongly decided but, until/unless it is successfully challenged, that is the law.

This appears to be a classic case of your client being rather poorly advised in relation to the criminal case and/or the importance of getting the FtT heard BEFORE the criminal proceedings.  Had that happened, a Tribunal would almost certainly have found there was no overpayment for the period 1999-2004 and, in turn, it is possible there might have been no conviction for the same period (depending on which element of the SSAA your client was prosecuted under).  But, as already stated, even if a Tribunal still reaches that conclusion, it doesn’t really matter - UNLESS you / your client are prepared to take it further on the grounds that to ignore a FtTD amounts to a breach of Article 6 - see earlier threads on this issue.

SD v Newcastle CC (HB) [2010] UKUT 306 (AAC)
http://www.osscsc.gov.uk/Aspx/view.aspx?id=3034

GB v LB Hillingdon (HB) [2010] UKUT 11 (AAC)
http://www.osscsc.gov.uk/Aspx/view.aspx?id=2832

R v South Ribble BC ex parte Hamilton [2000] EWCA Civ 518 & 33 HLR 104 CA
http://www.bailii.org/ew/cases/EWCA/Civ/2000/518.html

R v Wearing [2011] EWCA Crim 3140
http://www.rightsnet.org.uk/?ACT=39&fid=9&aid=352_0Fdyp77IjGP3IlaP5SKg&board_id=1

Threads:

“tribunal or mags - here we go again!”
http://www.rightsnet.org.uk/forums/viewthread/241/

“Fraud, cautions and unheard appeals. Caselaw search”
http://www.rightsnet.org.uk/forums/viewthread/2251/

“Appealing amount of overpayment after pleading guilty of benefit fraud…”
http://www.rightsnet.org.uk/forums/viewthread/2980/

[latest edits: typos]

Many thanks Kevin - thats really helpful!

My second point is - suppose she was ordered to repay around £20,000 by the Crown Court (of which she has no evidence yet - this appeal has been postponed twice, she has had over 9 months to forward evidence to Ftt and/ or seek advice) - how does that interact with her appeal. Will the Tribunal have to look at only the difference between the overpayment (some £30,000 plus £10,000 CTB) and the £20,000? Surely they cannot make her liable for the whole o/payment on top of the Crown Court Order?

Thanks again.