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8 mins Video Surveillance removes DLA mobility.
The surveillance was obtained over a 20 week period. The appellant was observed doing the same thing each time. WALKING IN AND OUT OF A LEISURE Centre each time . Limping but not using a stick distance into centre 100 yards goes for swim then walks back to car. Fraud officers claimed to have a video of appellant using the gym. Appellant had never used gym. This was put to him under caution. We requested the DWP disclose gym video. They did not arguing I was unclear whether it was him or not. Questions.
Is 8 minutes over 20 weeks sufficient to invoke a review? the appellant has arthritis from the neck down. .in need of knee replacements, hip arthritis. Too dangerous to operate because of other conditions. All backed up with copious medical evidence from consultants.
It’s clear the fraud officers have only disclosed evidence which aids their case. The appellant’s condition deteriorates during the day but evidence taken only covers when he first leaves the house.
It is now two tears after events. Appeal failed now subject OF appeal TO UT
FRAUD OFFICES ARE RUNNING RIOT. HOW DO WE FIGHT THE WAY THEY Withhold, manipulate and destroy evidence which favours the appellant or compromises their credibility.
Any comments advice welcomed.
Worth also looking at DWP Fraud Investation procedure for DLA - as this gives the guidance for DWP Officers in Fraud cases. It should be available online. I had a copy but cannot find it now.
By the sounds of it in your case the DWP have failed to follow their own guidance.
I had a similar case and given the DWP sought to recover 10 years of DLA. I obtained and challenged the supercession with client’s full GP records - (over several hundred pages) - explaining there had been no change in circumstances to warrant a change in decision.
Case CDLA/2396/2011 proved helpful. The UT decided that starting work did not amount to a relevant change in circumsntances and therefore her DLA appeal was allowed.
I don’t know how much this will help for UT case but thought it was useful for others challenging poorly investigated fraud cases.
Against which part(s) of its decision(s) is it argued the tribunal erred in law? Entitlement, overpayment or both? For the overpayment are DWP arguing failure to disclose or misrepresentation? Issues may also arise around the period and calculation of the entitlement & overpayment. What decision(s) did the DWP seek to revise or supersede and on what grounds? Does the period at issue include completion of renewal claim forms, EMP reports etc? Did the tribunal demonstrate how it weighed the claimants medical evidence against the DWP evidence in its statement of reasons?
CDLA/1404/2012 gives detailed guidance to tribunals on both aspects. CDLA/2328/2006 on the instructions to claimants about reporting change of circs for DLA and whether resulting overpayments are recoverable. CDLA/179/2007 on DLA and taking part in sport - contrast with CDLA/2348/2010 and working as a bus driver.
It is, for example, possible that a decision that there was nil, or reduced, entitlement to DLA is correct but a tribunal can also find that the resulting overpayment is not recoverable because there was no failure to disclose / misrepresent. A tribunal could reasonable conclude that there was grounds to supersede but only from the date, for example, of a later renewal claim decision, or an operation took place, and the overpayment only arose from that date.
In our experience DWP submissions in such cases are particularly poor - particularly on the correct application of Claims & Payments Reg. 32(1A)&(1B) and often give meaningless (within the DLA qualifying rules) grounds for the entitlement decision such as ‘the activity / work undertaken by the claimant is not compatible with the award of DLA’.
good luck!
“FRAUD OFFICES ARE RUNNING RIOT. HOW DO WE FIGHT THE WAY THEY Withhold, manipulate and destroy evidence which favours the appellant or compromises their credibility”
Had a similar case this year (covert video etc), and the client gave a good account of why they considered it to be selective filming by DWP. Fraud team also claimed the tape didn’t work at the interview, so no transcript.
Does such an approach not border on perverting the course of justice? Or is the threshold much higher?
Interviews under caution should normally be taped where equipment is available but interviews can still proceed untaped where, for example, there is equipment failure. However, a written transcript must be taken (see PACE Code of Practice E). So a failure to audio record is not perverting the course of justice but tampering with or destroying evidence certainly is.
On the amount of surveillance footage point, its adequacy will be a question of fact in each case. For instance, if a claimant has claimed that he is paralyzed from the waist down but then can be clearly identified in a two minute film walking, the brevity of the film should not be an issue. On the other hand, I once represented a client with cystic fibrosis, on a DLA case, who had been sent down for Income Support fraud and intellectual property fraud (flogging pirate dvd’s on the local market). At the hearing I asked the PO how many times they had filmed him walking the stated distance of 100 yards (from his mate’s van to the market stall). She replied “once”. Result; appeal allowed, no ground to supersede the award of HR mob’.
For the UT
These may be of use:
CM/139/1988 states that if a claimant has a fluctuating condition they will still satisfy the test if taken as a whole they are virtually unable to walk. See also CM/171/1988.
CM/208/1989 says that the effect of normal weather conditions - which includes cold windy days - should be taken into account. See also CM/247/1987 which held that ordinary weather conditions were relevant factors.
Sorry can’t be more helpful
Not sure the time or number of weeks is that relevant. All that matters is the content and setting that in context. Hardly extraordinary that someone should undertake a therapeutic activity likely to have been medically recommended and then come out looking slightly better. Presumably it was recommended and presumably there would be something not very therapeutic about it if the claimant walked out looking the same or worse immediately afterwards!!!. Also worth remembering that video speaks to time, speed, distance and manner. It says nothing conclusive about “in the absence of severe discomfort”.
So, if UT is in play then the opening question would surely be whether the video contained anything which suggested grounds for review i.e. that the claimant could now do things which their claim/renewal suggested they could not? If the tribunal failed to address that then bingo. A lack of findings of fact around the consequences of such activity would also set you on your way.
There are, as has already been mentioned, lots of things around IUCs and the transcripts are often masterpieces of comedy; leading questions; good cop/bad cop and omissions. Was the IUC interrupted and then no reminder that IUC issued and so on.
Other things to look for - to what extent has the video been edited? Does every clip have a time and date stamp? Does the appellant believe those to be accurate? Have any clips been repeated but doctored to look as though they were different clips?
Am I suggesting DWP could doctor video to their advantage? Well we’ve had cases of that in the past. Client looked to have been walking over 200m. Unfortunately, it was the same short walk filmed from 2 different angles and edited to look like it was one long walk! Also used a measuring wheel to establish that DWP couldn’t accurately estimate the distance they had filmed. Irony? What irony? Tribunal rapidly kicked into long grass.
Claimant videod driving the school run for a coach company whilst claiming he no longer used a car. I took far too much delight in some amateur dramatics by presenting first the appellant to the tribunal; getting a positive ID from the PO who had inadvertently revealed he had done the video and then… asking the clerk to fetch his twin brother into the room having made sure he’d only arrived 10 minutes after we started :)
Burden of proof falls on party seeking to change the decision. Demand the proof… in full. Make it clear to UT that you think evidence being witheld. Won;t play well with UT at all.
Can I have it? Love cases like this.
[ Edited: 1 Aug 2013 at 03:01 pm by Mike Hughes ]Why hadn’t the DWP accepted any submission you had put in prior to the hearing about the video evidence being of the twin brother?
[ Edited: 1 Aug 2013 at 02:59 pm by Brian JB ]Why hadn’t the DWP accepted any submission you had put in prior to the hearing about the video evidence being of the twin brother?
Why don’t the DWP overturn appealed decisions each time they receive evidence prior to an appeal hearing?
Why won’t mandatory reconsideration do the same?
Sorry, I’m being flippant.
It was some time ago and I inherited the case with 2.5 weeks to go and with me having 1 week leave in the midst of that. He’d already told them earlier that it was his brother but they ignored it. They left his letter out of the appeal papers too.
I could see no point in re-sending the letter etc. at such short notice so we went ahead. Took some organising to get the bro there but I arranged for him to be there and took the letter with me too. Gave that to the clerk beforehand. Eyebrows raised. Tribunal put it to PO (who was also the camera expert) and he turned bright red but then asked if I had any evidence beyond the assertion of the letter. A photo wouldn’t have been acceptable. So, enter brother number 2 :)
That’s a cracking good one Mike!
That’s a cracking good one Mike!
About 2 years later we had the same PO on another fraud case involving video evidence. Lessons not learnt.
Co-hab case. Claimed the claimant had been in the house of his ex-partner all night on several occasions and they’d filmed him leaving in the morning. Made a complete oaf of him as by then we were into the era of camera phones. Claimant was in the house babysitting his child whilst his ex-partner was out until about 12:30am. Claimant left house; spotted DWP person and filmed him asleep on his steering wheel :)
Then made a point of filming himself arriving and leaving at the same house the next morning to collect his daughter to take her to school as ex-partner did some shift work. When he arrived young Spielberg was still asleep but this time in the back of the car! Awake by the time he came out and happily filming with no appreciation he’d been spotted or had missed anything.
Best look on a tribunal chairs face ever. Tried to tell me off for witholding evidence until the day of the appeal. I defended my approach by outlining the film career of this PO and suggesting that, given that no lessons had been learnt and an aggressive and offensive approach had been taken, the claimant had every right to demand some kind of retirbution beyond inevitably winning the appeal. The pursuit of a mere apology would have taken some time and would undoubtedly have led to some defending of their actions. This felt rather more proactive.
The chair involved possibly recognised the quote that “justice delayed is no justice at all” as being something from their own regional chair at the time :)
There wa also the small issue of the film from the appellant being too long to get onto something like a USB stick and no point in doing a DVD as there was no guarantee of compatribility.
I didn;t get told off :)
[ Edited: 1 Aug 2013 at 03:22 pm by Mike Hughes ]Just gets better!
Just gets better!
Getting back on topic I think the gist for the OP is that these cases are there for the taking. DWP do an incredibly poor job of both gathering and judging evidence in these types of cases.
They can be incredibly distressing for appellants and their families and my view is that, taken as a whole, you can often argue something equivalent to asking a tribunal to make a choice between concluding that the case has been handled with staggering incompetence or with something akin to deliberately perverting the course of justice. Few tribunals will grab at the latter option but a decision commenting on a lack of basic competence is a double win for an appellant.
Seen some good rows between the PO and the appellant in the waiting room afterwards too. Had one appellant attempt to film the PO in the hearing. Didn’t go down well with the tribunal but made a point to the PO about how it felt, especially when the appellant followed her out towards her waiting room and filmed her there instead.
Why don’t the DWP overturn appealed decisions each time they receive evidence prior to an appeal hearing?
Why won’t mandatory reconsideration do the same?
Sorry, I’m being flippant.
No offence taken, but not all evidence sent in before an appeal comes remotely close to the circumstances you describe, which is why it seemed bizarre that DWP hadn’t just accepted it. Perhaps things are different in your area - POs are never the fraud officers here and as a former PO myself, I wouldn’t have taken a case to a hearing knowing that sort of clear evidence existed.
Why don’t the DWP overturn appealed decisions each time they receive evidence prior to an appeal hearing?
Why won’t mandatory reconsideration do the same?
Sorry, I’m being flippant.
No offence taken, but not all evidence sent in before an appeal comes remotely close to the circumstances you describe, which is why it seemed bizarre that DWP hadn’t just accepted it. Perhaps things are different in your area - POs are never the fraud officers here and as a former PO myself, I wouldn’t have taken a case to a hearing knowing that sort of clear evidence existed.
I agree but proximity to appeal hearing always has an influence. The judgement that things have gone “too far” to bring back to a decision maker. Bizarre from my perspective but all too common and a line given out by POs and DMs at our local TUG meetings too. No evidence that
POs are, as I understand it, almost never either the DM or the fraud investigator but, like everything that shouldn’t happen, sometimes it just does.
In the same way, it’s not uncommon to have cases to proceed based purely on subjective nonsense e.g. an ongoing co-hab case with a multi page submission from me that dismantles every point put by DWP. There will only be 1 outcome at the appeal. The submission has been sent to the DWP DM well in advance. We have appeal papers but the inquiry form has only just arrived. DM added an additional submission to the papers that amounts to “This is all to be disbelieved because it contradicts what they said earlier (well, duh!) and in any case they have a WRO so it’s highly likely they will have been a force for evil!”. Nuff said!!!
We have at least 2 local POs who behave as though the money belongs to them and it is a personal affront to lose a case. Mkes life entertaining. 1 of those 2 often turns up for 1 appeal but decides to stay for the session or the day to “help” the tribunal despite having no appeal papers and repeatedly having to “borrow” papers off a clerk. Funnily enough, it’s not clear what that help is given that their unfamiliarity with the papers tends to lead to questions of the appellant already answered in the appeal papers. Has been known to arrive early for appeal and spend time reading. Not papers, just a book. Thinks we’ve never noticed but we have, several times over the years. Must be a lovely job.
Maybe things here are indeed different!
PO’s round here are as rare as hen’s teeth. Our main LA usually sends a PO (and a very good one) but haven’t seen a DWP PO for yonks.
Loving the twins story BTW. A real ‘Rumpole of the Bailey’ moment.